Datasets:

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MahmoudAly

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LexAbSumm

like 1

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1977 and lives in Luka.", "1. Background to the case", "5. On 9 December 1999 a request that minor-offences proceedings be instituted against the applicant was lodged with the Zaprešić Minor Offences Court ( Prekršajni sud u Zaprešiću ), following an allegation that on 8 December 1999 the applicant (then aged twenty-two) and two other individuals had physically attacked three minors, D.E., S.C. and I.Š., by hitting them and kicking them all over their bodies while simultaneously shouting obscenities. They had also damaged a vehicle owned by the mother of one of the victims and had broken one of its front lights and the front bumper.", "6. On the evening of 23 April 2000 the above-mentioned D.E. (born on 17 February 1982), S.C. (born on 15 November 1982) and I.Š. (born on 25 July 1982), together with four friends, B.B. (born on 17 January 1983), F.P. (born on 28 May 1982), Z.T. (born on 18 December 1981) and S.T. (born on 25 May 1983), approached the applicant, who was in the company of five friends, and asked him about the incident of 8 December 1999. The applicant then verbally insulted D.E. on the basis of his Serbian origin. A fight ensued.", "7. On 24 April and 8 June 2000 the police interviewed the individuals from the above group. Their statements concurred as to the fact that they had been friends with the applicant until the incident of 8 December 1999. On 23 April 2000 they had agreed that they would find the applicant and attack him. When they attacked the applicant, he had pulled out a knife and stabbed Z.T. twice. B.B. had then hit the applicant on the head with a wooden plank and all of them, including the applicant, had left the scene.", "8. In his statement of 24 April 2000 I.Š. mentioned that the applicant was of Roma origin, but did not elaborate on this point. The relevant part of the statement reads:", "“As regards Darko Beganović, he is of Roma origin. He used to mistreat the others on occasions when any of them was alone. He threatened to attack them, which caused fear in the group because they were afraid of him and of such behaviour.”", "9. The police also interviewed the applicant and two other neutral witnesses. In his statement the applicant gave no indication that any of the assailants had made reference to his Roma origin.", "2. Preliminary stage of the criminal proceedings", "10. On 12 June 2000 the applicant, represented by legal counsel, lodged a criminal complaint with the Zagreb State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) against six identified individuals (F.P., Z.T., S.T., S.C., D.E. and B.B.) and a seventh unknown individual, alleging that on 23 April 2000 they had approached and surrounded him and proceeded to hit him until he fell to the ground. They had then started to kick him. When the beating stopped he had stood up, whereupon B.B. had hit him on the head with a wooden plank, causing him to lose consciousness. The attack had caused him severe bodily injuries. Furthermore, on 6 June 2000 the same men had told a certain D.K. to tell the applicant that they were going to burn him alive. The applicant alleged that they had thus committed two criminal offences, namely assault leading to grievous bodily harm and threatening behaviour, and asked for criminal proceedings to be brought against them.", "11. In a letter to the Zagreb Police Department dated 24 April 2000 the “Sveti Duh” General Hospital in Zagreb, where the applicant had been examined, described the applicant ’ s injuries as grievous. A letter of discharge dated 29 April 2000 stated that the applicant had been admitted to the hospital on 24 April 2000 and had been diagnosed with concussion and numerous contusions to the head and body.", "12. On 4 July 2000 the Zagreb Police Department lodged a criminal complaint with the Zagreb State Attorney ’ s Juvenile Office against B.B., alleging that at around 11 p.m. on 23 April 2000 he and his friends, S.T., D.E., I.Š., Z.T. and S.C., had had a fight with the applicant. The complaint alleged that they had planned the fight beforehand and for that purpose had gone to a location where they expected to find the applicant. After verbally assaulting him, they had beaten him up and kicked him all over his body. One of them, B.B., had hit him on the head with a wooden plank and the applicant had lost consciousness. The complaint also cited the above medical records stating that the applicant had sustained grievous bodily injuries.", "13. In submissions of 8 January 2001 the applicant ’ s counsel pointed out that she had lodged a criminal complaint on 12 June 2000 and asked to be informed of the case-file number. She further contended that Articles 2 and 3 of the Convention and Article 6 § 2 of the Framework Convention for the Protection of National Minorities required State authorities to take all steps to identify within a reasonable time the perpetrators of criminal offences against life and limb, and to do so with particular urgency where, as in the case at issue, the victim was a member of a national minority (Roma). She added that all the circumstances indicated that the offence was racially motivated.", "14. On 12 March 2001 the Zagreb State Attorney ’ s Office forwarded the applicant ’ s criminal complaint to the Velika Gorica State Attorney ’ s Office. A medical report was prepared by a court expert in forensic medicine. As regards the injuries sustained by the applicant, the relevant part of the report reads:", "“Examination and treatment of the victim, Beganović Darko, established numerous blows which caused contusions and lacerations to his head and body each of which amounts to a bodily injury (under the previous classification, a lesser bodily injury). The injuries were caused by several blows from one or more hard objects, possibly a fist, a shoe-clad foot or a similar object. If some of the blows were struck by a shoe-clad foot, the victim was most probably bent over or lying on the ground. Since the injuries are not described in detail, it is not possible to establish their number or the number of blows. The blows were of minor to medium intensity.", "The diagnosis of concussion, although mentioned, was not objectively established in the medical documentation enclosed in the file, and could therefore not be forensically accepted.", "Taken together, all of the injuries sustained by the victim Beganović Darko amount to a bodily injury.”", "As regards the injuries sustained by Z.T., the relevant part of the report reads:", "“Examination of Z.T. revealed two stab wounds on his back. Since these wounds are not described in detail, only an indirect conclusion can be reached, namely that, given the lack of injuries in deeper structures, the wounds were shallow and each of them, taken separately and together, amounted to bodily injury. The injuries were caused by two separate knife stabs or stab blows by a similar object. The stabs were of minor intensity. At the moment of stabbing the victim most probably had his back turned towards the assailant .”", "15. On 16 July 2001 the Velika Gorica State Attorney ’ s Office decided not to institute criminal proceedings against B.B. on the ground that the medical analysis of the injuries sustained by the applicant indicated that the diagnosis of concussion could not be accepted forensically, given that all the other injuries were of a lesser nature. Under the relevant domestic law a prosecution for such injuries had to be brought privately by the victim, while a prosecution for grievous bodily injuries had to be initiated by the relevant State authorities. The applicant was thus instructed to proceed accordingly and to ask, within eight days, that a juvenile panel from a competent county court institute criminal proceedings against B.B.", "16. In her submissions of 24 August 2001 to the Velika Gorica State Attorney ’ s Office, the applicant ’ s counsel asked for the criminal complaint of 12 June 2000 against the other suspects to be treated as a private prosecution for the offence under Article 98 of the Criminal Code of assault occasioning bodily harm.", "17. On 27 August 2001 the applicant ’ s counsel brought a private prosecution against B.B., then a minor, in the Juvenile Council of the Velika Gorica Municipal Court for the offence under Article 98 of the Criminal Code. On 10 October 2001 the Velika Gorica Municipal Court ordered the applicant ’ s counsel to inform it of the date of birth of B.B. and to proceed in accordance with sections 45, 46 and 63 of the Juvenile Courts Act.", "18. In her submissions to the Velika Gorica State Attorney ’ s Office of 16 October 2001, the applicant ’ s counsel argued that the decision of 16 July 2001 not to prosecute concerned only the criminal complaint lodged by the police on 4 July 2000, but not the criminal complaint lodged by the applicant on 12 June 2000, since the latter was broader in scope than the police complaint. She further emphasised that the offence against the applicant was racially motivated and asked the Office to act with reasonable expedition. She also argued that the failure to act by the State Attorney ’ s Office had infringed the applicant ’ s constitutional rights to equality and to life, and his rights not to be ill-treated, to have a competent court decide his rights and obligations, to respect for his private and family life and honour, and to protection from violence and hatred based on his nationality, race or religion. She also relied on the Constitutional Act on the Rights and Freedoms of National and Ethnic Minorities in Croatia, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of all Forms of Discrimination and the European Convention on Human Rights.", "19. In her submission to the Velika Gorica Municipal Court of the same day the applicant ’ s counsel stated that she was not in a position to find out B.B. ’ s date of birth and that such information had to be requested from the Ministry of the Interior. She also submitted that the order to proceed in accordance with sections 45, 46 and 63 of the Juvenile Courts Act had been unclear. She further argued that the applicant had been prevented from prosecuting his assailants and that it was the practice of the State Attorney ’ s Office not to prosecute acts of violence against citizens of Roma origin. She repeated the contentions she had made to the Velika Gorica State Attorney concerning the infringement of the applicant ’ s rights.", "20. In a letter of 5 November 2001, the Velika Gorica Municipal Court invited the applicant ’ s counsel to explain whether the private prosecution of B.B. was to be considered as an application to the juvenile panel of a competent county court under section 62 § 2 of the Juvenile Courts Act. In her reply of 7 November 2001, the applicant ’ s counsel confirmed that this was the case. She further explained that on 16 July 2001 the Velika Gorica State Attorney ’ s Office had given her an erroneous instruction to bring a private prosecution against B.B. since, under the Juvenile Courts Act, the prosecution of a minor could not be brought privately, but only by a competent State Attorney ’ s Office. She further pointed out that she had consulted the case file and that no expert assessment had been conducted of the injuries sustained by the applicant, contrary to the statement by the Velika Gorica State Attorney ’ s Office in its decision not to prosecute of 16 July 2001. She also argued that the offence in question had infringed the applicant ’ s right to life and personal safety, and the prohibition of torture, inhuman and degrading treatment, and that he had had no effective remedy for the protection of those rights.", "21. In a letter of 30 December 2001 addressed to the Velika Gorica State Attorney ’ s Office, the Zagreb State Attorney ’ s Office expressed its view that the former body ’ s decision not to prosecute B.B. had been erroneous and contrary to section 45 of the Juvenile Courts Act, which required the competent State Attorney ’ s Office to undertake an official prosecution against minors even in respect of criminal offences otherwise subject to private prosecution. The Zagreb State Attorney ’ s Office indicated that it was necessary to obtain information about B.B. from a competent Social Welfare Centre and then to declare the criminal complaint against B.B. inadmissible, in accordance with section 64 of the Juvenile Courts Act, subject to the condition that B.B. be ordered to undertake one of the measures listed in that provision.", "3. Criminal proceedings against B.B. before the Velika Gorica Municipal Court", "22. On 4 February 2002 the Zagreb County Court Juvenile Council decided to bring charges of bodily injury under Article 99 of the Criminal Code against B.B. before a juvenile judge. The case file was forwarded to the Velika Gorica Municipal Court in order for it to conduct the proceedings.", "23. On 5 July 2002 the Velika Gorica State Attorney ’ s Office lodged a request with the juvenile judge of the Velika Gorica Municipal Court for preparatory proceedings to be instituted against B.B. They asked that B.B. and other participants be interviewed regarding the circumstances of the offence in question. They further requested a fresh report from the Zaprešić Welfare Centre, in order to decide whether there was a need for an educative measure in respect of B.B.", "24. The hearing before the Velika Gorica Municipal Court, scheduled for 2 November 2002, was adjourned because counsel for the defendant failed to appear. At the hearing held on 13 January 2003 the applicant gave his evidence. He did not indicate in any way that any of the assailants had made reference to his Roma origin. He stated that on 23 April 200 0 he had been in the company of five of his friends when the assailants approached him and then attacked him. None of his friends had been involved in the incident.", "25. On 10 April 2003 the Velika Gorica Social Welfare Centre submitted their report on B.B., drawn up on 3 April 2003. The relevant part of the report reads:", "“ ... He completed vocational school ... acquiring a qualification as a machine technician. He was temporarily employed ... until he was conscripted to military service in November 2001.", "He completed his military service in May 2002. Since then he has been unemployed but is registered with the State Employment Office.", "... there is no evidence that he has committed any further criminal offences.", "His cooperation and communication are adequate. He is polite and comes across as a serious young man.", "...", "In view of his personality, the conditions of his upbringing and his current life, we consider that the criminal offence he has been charged with was a misdemeanour attributable to his youth and the consequence of a stressful situation.", "In view of the fact that this was the first time he had ever been reported as a criminal offender and that, in the meantime, he has committed no further criminal offences, we consider it justifiable to impose an educative measure in the form of a special obligation requiring him to participate in the activities of humanitarian organisations or activities of ecological or communal interest .”", "26. A qualified social worker conducted a further interview with B.B. on 10 April 2003 for the purposes of the criminal proceedings against him. The relevant part of the report on the interview reads:", "“ ... To date there has been no need for social services intervention in the family, including in respect of B., who has no record of crime or misdemeanours.", "He takes seriously the fact that he has been the subject of proceedings before a court of law, as does his mother, and he expresses concern about the outcome.", "The above observations lead to the conclusion that B. ’ s general functioning is adequate, being marked by pronounced social and emotional maturity and clear and mature opinions. He shows a responsible attitude towards his obligations.", "Therefore, should his criminal responsibility be established, the offence could be construed as a misdemeanour arising out of a specific situation, and the imposition of an educative measure in the form of a special obligation to participate in humanitarian activities seems justified.”", "27. At the hearing held on 21 May 2003 Z.T., S.T., S.C., I.Š. and F.P. gave evidence as witnesses. None of them made any reference to the applicant ’ s Roma origin. They all stated that they had socialised with the applicant and belonged to the same circle of friends prior to the incident of 8 December 1999. In a decision of 26 May 2003 the Velika Gorica Municipal Court instituted preparatory proceedings against B.B., under section 68(2) of the Juvenile Courts Act. A hearing scheduled for 5 November 2003 was adjourned on the ground that D.E., who was studying in Germany and had been called as a witness, did not appear. He gave his evidence at the hearing held on 12 February 2004. On 12 January 2004 the applicant ’ s counsel submitted an application to expedite the proceedings.", "28. On 26 February 2004 the Velika Gorica State Attorney ’ s Office made a proposal that B.B., under sections 6 and 9 of the Juvenile Courts Act, take part in the work of humanitarian organisations or activities of communal or ecological interest instead of having criminal sanctions imposed on him. The proposal was based on the family and personal circumstances of B.B., who had meanwhile become an adult, had successfully completed his schooling and military service and was looking for a job. There had been no further criminal complaints against him.", "29. On 22 March and 6 May 2004 the applicant ’ s counsel submitted further applications to expedite the proceedings. On 2 July 2004 the Velika Gorica Municipal Court joined the two sets of proceedings. On 17 January 2005 the applicant ’ s counsel submitted a further application to expedite the proceedings. On 17 June 2005 the applicant ’ s counsel submitted a fresh application to expedite the proceedings to the President of the Velika Gorica Municipal Court, stressing that the prosecution was about to become time-barred.", "30. On 21 December 2005 the Velika Gorica Municipal Court discontinued the proceedings against B.B. on the ground that the prosecution for the offence with which he was charged had become time-barred on 23 April 2004. A subsequent appeal by the applicant was dismissed on 9 March 2006 by the Velika Gorica County Court.", "4. Criminal proceedings against F.P., Z.T., S.T., S.C. and D.E. following the applicant ’ s private subsidiary indictment", "31. On 30 September 2002 the Velika Gorica State Attorney ’ s Office declared the applicant ’ s criminal complaint of 12 June 2000 inadmissible in respect of F.P., Z.T., S.C. and D.E. as, under the relevant domestic law, a prosecution for bodily harm had to be brought privately by the victim. As to the alleged threat, D.K., in a statement to the State Attorney ’ s Office, denied telling the applicant that any such threat had been made. The applicant was informed of his right to take over the prosecution as a subsidiary prosecutor and to lodge a private subsidiary indictment with the Velika Gorica Municipal Court or to request an investigation through the Zagreb County Court.", "32. On 11 November 2002 the applicant, represented by counsel, lodged a private subsidiary indictment against five suspects (all of the assailants but B.B. and the one unidentified assailant) with the Velika Gorica Municipal Court for the offences set out in Articles 98 and 99 of the Criminal Code, namely causing bodily harm and causing grievous bodily harm. He also asked for these proceedings to be joined with those already pending before the same court against B.B.", "33. On 29 September 2003 the Municipal Court asked the Zaprešić Social Welfare Centre to prepare reports on the defendants.", "34. The relevant part of the report on S.T., drawn up on 28 October 2003, reads:", "“ ... he dropped out of high school and in October this year enrolled in a training course for security guards ... which he plans to complete by June 2004.", "He has less time for leisure because he is attending classes and assisting in renovation work on the family home.", "S. greets others and communicates with them politely.", "His hygiene habits are appropriate to his age.", "He smokes and drinks alcoholic drinks occasionally.", "In a decision of the [Velika Gorica Municipal] Court ... of 22 November 2001 an educative measure was imposed on him in the form of close care and supervision and a special obligation to undergo specialised medical treatment or treatment for drug and other addictions.", "S. carried out the above special obligation in Zagreb City Centre for the Prevention of Addictions, although there were difficulties in respect of his frequency of ... attendance.", "The educative measure consisting of close care and supervision was implemented, although there were difficulties related to regular communication and performance of the programme tasks.", "S. lives with his parents and brother Z.", "...", "The parents cared for the children ’ s basic needs according to their abilities. However, they lacked the capacity to face up to the developmental difficulties [of children]. Becoming aware of their helplessness in bringing up their children and their lack of authority, they became discouraged.", "The family live in their own house ... where they moved six year ago after living in a flat ...", "S. has not adapted well to rural life.", "As regards the question of criminal proceedings, we propose that a special obligation be imposed in the form of participation in humanitarian activities.”", "35. The relevant part of the report on F.P., drawn up on 17 November 2003, reads:", "“ ... In June 1998, as the driver of a vehicle, [he had] a road accident in which he sustained multiple contusions to his head and lungs. He was hospitalised ... He was unconscious for twelve days. ... As a consequence ... he had a mild motor skills and speech disorder and frequent headaches. ... His current health is good.", "He completed high school ... and obtained a qualification as a waiter ... he then also completed training as a lorry driver and a driver of vehicles for the transport of dangerous materials.", "For a period of time he worked as a waiter and in the past seven months he has worked as a driver.", "...", "He did not perform military service. He lives with his parents and is not married.", "He cooperates well and communicates adequately.", "The records of this centre show that in 1998 preliminary proceedings were conducted against the then minor F. in the Zagreb Municipal Court in connection with the criminal offence of causing a road accident. The proceedings were terminated [without a conviction] since the court applied the principle of appropriateness [of criminal punishment].", "He has not committed any further criminal offences.", "On the basis of the above we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .”", "36. The relevant part of the report on D.E., drawn up on 17 November 2003, reads:", "“We have not been able to contact the above-mentioned young adult directly. Instead, we conducted a telephone conversation with D., who indicated that he is currently resident in Germany with his mother and studying computer science.", "...", "The records of this Centre show that D. has not committed any further criminal offence nor is there any record of any other asocial behaviour.", "On the basis of the above we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .”", "37. The relevant part of the report on Z.T., drawn up on 26 November 2003, reads:", "“ ... he dropped out of a [vocational] high school he had attended until the third grade.", "...", "In 2001 he completed his military service, and after returning to his family decided to continue his education and enrolled in evening classes in the same [vocational] school, in order to obtain a qualification in electronics.", "Currently he is about to complete his education, and needs only to pass the final exams. Meanwhile, Z. has been working part-time and since last May has been employed in the Croatian Institute for Construction Works ...", "He is unmarried and lives with his parents.", "According to the records of this Centre he has not committed any further criminal offences.", "He cooperates well and communicates adequately. He comes across as a serious young man.", "...", "On the basis of the above, we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .”", "38. The relevant part of the report on S.C., drawn up on 2 December 2003, reads:", "“ ... he completed vocational school on schedule and graduated in 1999.", "After graduation he was unemployed since he could not find a job, but he helped his parents [on their] agricultural [land].", "In 2001 he completed his military service.", "Currently, he is employed in a construction firm ...", "He states that, owning to his work, he does not have much leisure time, which he then spends resting or helping his parents.", "According to the information of this Centre he has not committed any further criminal offences in the meantime.", "He cooperates well and comes across as a serious young man.", "...", "On the basis of the above, we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .”", "39. The first hearing, scheduled for 9 March 2004, was adjourned since only one of the five defendants appeared. On 22 March and 6 May 2004 the applicant ’ s counsel submitted further applications to expedite the proceedings.", "40. On 2 July 2004 the Velika Gorica Municipal Court joined the two sets of proceedings. At a hearing on 28 October 2005 the presiding judge served a copy of the applicant ’ s subsidiary private indictment on the defendants and scheduled the next hearing for 8 March 2006. On 21 December 2005 the Velika Gorica Municipal Court severed the proceedings. On 11 May 2006 the Velika Gorica Municipal Court discontinued the proceedings against the remaining defendants, on the ground that the prosecution of the offences with which they were charged had become time-barred on 23 April 2004.", "5. Civil proceedings", "41. On 9 April 2002 the applicant, represented by legal counsel, brought a civil action against nine defendants (the five identified perpetrators of the acts of violence against the applicant and the parents of two of the assailants who had been minors at the time of the attack) in the Zagreb Municipal Court ( Općinski sud u Zagrebu ), seeking damages for the injuries he had sustained.", "42. On 11 September 2003 the applicant ’ s counsel submitted an application to expedite the proceedings. At a hearing on 17 September 2003 the Zagreb Municipal Court decided to stay the proceedings pending the outcome of the criminal proceedings against the defendants.", "43. In submissions of 28 June 2005, the applicant ’ s counsel complained that the above decision had not been served on her and asked for it to be set aside since the conduct of the criminal proceedings had been ineffective. On 24 February 2006 her submissions were returned to her. When she enquired about the case she was told that on 26 January 2004 it had been transferred to the Zaprešić Municipal Court ( Općinski sud u Zaprešiću ). However, when on 21 July and 20 December 2006 she made enquiries about the case at the latter court she received no reply.", "44. On 29 January 2007 the applicant ’ s counsel lodged a complaint about the length of the civil proceedings with the Velika Gorica County Court. This complaint was upheld on 23 August 2007; the County Court awarded the applicant 7,771.20 Croatian kuna (HRK) in compensation and ordered the Municipal Court to adopt a decision within six months.", "45. At the hearing held on 19 September 2007 the Municipal Court ordered that a medical report be drawn up. On 17 January 2008 the experts submitted their report of 23 December 2007. The relevant part of the report reads:", "“The plaintiff received initial medical assistance in the surgical department of the ‘ Sveti Duh ’ General Hospital in Zagreb on 24 April 2000. He received treatment and was discharged from hospital on 29 April 2000, following an improvement [in his condition]. [He was] advised to rest and take painkillers and to [return for] a neurological check-up in ten days, with the results of an EEG examination.", "When examined by the experts the plaintiff complained of continuing headaches.", "A clinical examination did not reveal pathological substrates.", "The medical documentation consists of a discharge letter, without any further check-ups.", "OPINION: The medical documentation and the patient ’ s condition can be linked to the harmful act in question and the injuries sustained by the plaintiff on that occasion.", "Pain of significant intensity lasted two days, of medium intensity three days and of minor intensity one week.", "The remaining minor, occasional pains are caused by increased physical effort.", "The initial fear was intense and short in duration. Secondary fear (in respect of the injuries and their consequences) of significant intensity lasted a day, of medium intensity three days and of minor intensity a week.", "The medical documentation and examination of the victim did not reveal any lasting consequences from the harmful act.", "The plaintiff did not require assistance from other persons.”", "The civil proceedings before the Zaprešić Municipal Court are still pending." ]

[ "II. RELEVANT DOMESTIC LAW", "Criminal Code", "46. The relevant parts of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997) provide :", "Article 8", "“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney ’ s Office in the interest of the Republic of Croatia and its citizens.", "(2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney ’ s Office to institute criminal proceedings following [a private] application.”", "BODILY INJURY", "Article 98", "“ Anyone who inflicts bodily injury on another or impairs another ’ s health shall be fined or sentenced to imprisonment for a term not exceeding one year.”", "Article 102", "“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of a private prosecution.”", "TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT", "Article 176", "“A public official, or another person acting at the instigation or with the explicit or tacit acquiescence of a public official, who inflicts on another person pain or grave suffering, whether physical or mental, for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, shall be sentenced to imprisonment for a term of one to eight years.”", "Code of Criminal Procedure", "47. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide:", "Article 2", "“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...", "(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.", "(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.", "(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”", "Articles 47 to 61 regulate the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor ( privatni tužitelj ) is an injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor ( oštećeni kao tužitelj ) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute. Pursuant to Article 47, where the prosecution is brought privately, the charge must be lodged with the relevant authority within three months after the qualified prosecutor has learnt of the offence and the identity of the perpetrator.", "Article 48", "“(1) A request to prosecute shall be lodged with the competent State Attorney ’ s Office and a private prosecution with the competent court.", "(2) Where the injured party has lodged a criminal complaint ... he or she shall be considered to have thereby lodged a request to prosecute.", "(3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted on the basis of a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution ... ”", "Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of that party ’ s right to take over the proceedings, as well as to instruct that party on the steps to be taken.", "Juvenile Courts Act", "48. The relevant provisions of the Juvenile Courts Act ( Zakon o sudovima za mladež, Official Gazette nos. 111/1997, 27/1998 and 12/2002) read as follows:", "Section 2", "“A minor is a person who, at the time of the offence, was at least fourteen but not older than eighteen. A young adult is a person who, at the time of the offence, was at least eighteen but not older than twenty-one.”", "Section 4", "“(1) Sanctions in respect of minors who have committed criminal offences are educative measures, imprisonment of a minor and security measures.", "... ”", "Section 6", "“(1) Educative measures are:", "...", "(2) special obligations", "... ”", "Section 9", "“(1) A court may order a minor to fulfil one or more special obligations where it finds that appropriate orders or injunctions are needed to influence the minor and his or her conduct.", "(2) A court may impose the following obligations:", "...", "7. to participate in the activities of humanitarian organisations or activities of communal or ecological interest.", "...", "(7) In connection with the obligation under paragraph 2, point 7 of this section a court may impose a maximum of one hundred and twenty working hours within a period of six months, so as not to hinder the minor ’ s education or regular employment;", "(8) A competent Social Welfare Centre shall supervise the enforcement of the obligation ... ”", "Section 45", "“(1) Criminal proceedings against minors shall be instituted at the request of the State Attorney in respect of all criminal offences.", "(2) Prosecution [of minors] in respect of criminal offences generally subject to private prosecution may be instituted if a person authorised [to initiate a private prosecution] has lodged an application for proceedings to be instituted with the competent State Attorney ’ s Office within three months of learning of the offence and the identity of the perpetrator.”", "Section 46", "“In criminal proceedings against a minor [the] victim cannot take the role of prosecutor.”", "Section 62", "“(1) Where the State Attorney has decided under section 45 of this Act that there is no ground to request that criminal proceedings be instituted against a minor (Article 174 of the Code of Criminal Procedure), he or she shall notify the victim of this and state the reasons for his or her decision ...", "(2) Within eight days after notification [under paragraph 1] has been served on the victim, he or she may request a competent juvenile council of a higher court to decide whether proceedings should be instituted. The division shall decide after it has obtained the opinion of the State Attorney. The division may decide that the proceedings should not be instituted at all or that they should be instituted before a juvenile judge.", "(3) Where the division has decided that proceedings should be instituted, the competent State Attorney ’ s Office shall take over the proceedings against a minor.”", "Section 63", "“(1) In respect of criminal offences which carry a sentence of imprisonment not exceeding five years or a fine, the State Attorney may decide not to request that criminal proceedings be instituted, despite the existence of a reasonable suspicion that a minor has committed such an offence, where the State Attorney considers that the proceedings against the minor would not fulfil any purpose in view of the nature of the offence and the circumstances under which it was committed, as well as the previous life and personality of the minor in question. In order to establish these facts, the State Attorney may request information from the [minor ’ s] parents ... other persons and institutions ... or interview the minor in question ...", "(2) The State Attorney shall inform the competent Social Welfare Centre and the victim about his or her decision under paragraph 1 of this section and shall inform the latter of his or her right to bring any compensatory claim he or she might have in civil proceedings ... ”", "Section 65", "“ (1) The State Attorney may make his or her decision not to institute proceedings (section 63) subject to the minor ’ s willingness to:", "...", "(b) participate in the activities of humanitarian organisations or activities of communal or ecological interest (within the limits of section 9(2).22).", "... ”", "Section 68", "“(1) A request that preparatory proceedings be instituted shall be lodged with a competent juvenile judge by the State Attorney.", "(2) Where the juvenile judge agrees with the request she or he shall issue a decision that preparatory proceedings are to be instituted. ... ”", "Rules on the State Attorney ’ s Offices", "49. The relevant part of the Rules on the State Attorney ’ s Offices ( Pravilnik o unutarnjem poslovanju u državnim odvjetništvima, Official Gazette no. 106/02) reads:", "Section 49", "“A victim, a party represented by a State Attorney ’ s Office ... or an interested person, other than a suspect, an accused or an opposing party in the proceedings, may consult a criminal, civil or other case file held by the State Attorney. Such persons may also be allowed to copy the case file in whole or in part.", "Permission to consult or copy the case file shall be given by the State Attorney or the official in charge of a particular case file.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION", "50. The applicant complained that the domestic authorities had not afforded him adequate protection against a serious act of violence and that he had had no effective remedy in respect thereof. The applicant relied on Article 3 of the Convention, taken alone and together with Article 13 of the Convention. The relevant Articles provide:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "51. The Government contested that argument.", "A. Admissibility", "52. The Government requested the Court to declare this part of the application inadmissible for failure to exhaust domestic remedies. Relying on the Court ’ s decision in the case of Duchonova v. the Czech Republic ( (dec. ), no. 29858/03, 2 October 2006), they submitted that the applicant ’ s civil action for damages in respect of the injuries and fears he had suffered was still pending.", "53. The applicant argued that he had exhausted all remedies and that the only remedy capable of providing adequate redress for the ill-treatment sustained in violation of Article 3 of the Convention was of a criminal-law nature.", "54. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Barta v. Hungary, no. 26137/04, § 45, 10 April 2007 ).", "55. As to the Government ’ s reference to the case of Duchonova, the Court notes that the criminal offences complained of by the applicant in that case were those of defamation and blackmail and that the application in that case concerned Article 8 of the Convention. Therefore, the case of Duchonova is not comparable to the present case, which concerns physical violence against the applicant.", "56. The Court notes further that the applicant did indeed bring a civil action for damages against his assailants which is still pending. However, the Court is inclined to believe that effective deterrence against grave acts such as attacks on the physical integrity of a person, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91; August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 1 50, ECHR 2003 ‑ XII ). The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State ’ s obligations under Article 3 of the Convention in cases such as the present one, as they are aimed at awarding damages rather than identifying and punishing those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports 1998-VIII). In this connection the Court reiterates that an obligation for the State to apply adequate criminal-law mechanisms cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C., cited above, § 151, and Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007).", "57. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "58. The applicant argued that in view of the severity of the attack against him and the injuries he had sustained, Article 3 was applicable to the present case. As to the compliance of the State with its positive obligations under Article 3 of the Convention, the applicant argued that real and effective protection from the act of ill-treatment required effective investigation and prosecution. In this connection he stressed that the State ’ s positive obligation could not be limited to merely conducting an investigation. An investigation did not serve any purpose on its own, nor, alone, did it provide any protection against and redress for ill-treatment where it was not accompanied by effective follow - up. He maintained that the State authorities had failed to conduct an effective investigation into his case and that they had also failed to apply the relevant criminal-law mechanisms in an adequate manner. The investigating authorities had failed to act effectively and numerous mistakes and delays had occurred, causing the prosecution to become time-barred. In the applicant ’ s view, the time-barring itself amounted to a violation of Article 3 of the Convention. Although the assailants had admitted in their interviews with the police that they had hit the applicant, the State Attorney ’ s Office had brought a criminal prosecution against only one of them, B.B.", "59. He also contended that he had not been allowed to take an active part in the proceedings because he had never been informed of the steps taken in the pre-trial proceedings, including the decision of 26 May 2003. The authorities had also failed to inform him of the medical report drawn up during the investigation stage. Thus, he had had no opportunity to challenge the medical reports.", "60. In the applicant ’ s view the fact that the assailants had been charged on an individual basis rather than with participation in a group attack was in itself a violation of the State ’ s positive obligations under Article 3 of the Convention. He also referred to the erroneous instructions from the State Attorney ’ s Office in respect of the prosecution of B.B. He further argued that S.T. and D.E. had also been minors at the time of the offence and that therefore they too should have been prosecuted by the competent State Attorney ’ s Office, irrespective of the gravity of the applicant ’ s injuries.", "61. The applicant also alleged that, contrary to Article 13, he had had no effective remedy in practice for his complaint under Article 3. He stressed that only a criminal-law remedy, that is, an official investigation, would have been appropriate in the circumstances of the present case.", "(b) The Government", "62. The Government argued that Article 3 was not applicable to the present case since the applicant had suffered only bodily injuries of a lesser nature. Should the Court nonetheless find Article 3 applicable, the Government maintained that the procedural obligation under Article 3 of the Convention did not require a judgment convicting the perpetrators of a crime. Therefore, the Court ’ s assessment should be limited to the effectiveness of the investigation. In that connection the Government stressed that there had been an investigation into the applicant ’ s allegations of an attack against him and that the State Attorney ’ s Office and the police had established all the relevant facts. They had heard evidence from the applicant, the alleged assailants and two independent witnesses. These authorities had not found any indication that the attack on the applicant had been racially motivated. Since the alleged perpetrators had been either minors or young adults, special provisions were to be applied. The Government admitted that the criminal proceedings had been terminated owing to expiry of the statutory limitation period, but argued that that in itself could not amount to a violation of Article 3 of the Convention.", "63. As regards the complaint under Article 13, the Government argued firstly that since Article 3 was not applicable, there could be no violation of Article 13. Furthermore, the applicant could have lodged a civil claim for damages and had been informed of the results of the investigation.", "2. The Court ’ s assessment", "(a) Severity of the treatment", "64. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports 1998 ‑ VI).", "65. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007 ).", "66. The Court notes that the applicant alleged that seven individuals had confronted him. They had attacked him by kicking him and hitting him all over his body. One of them had hit him in the head with a wooden plank, after which he had lost consciousness. The medical documentation shows that the applicant sustained numerous blows which caused contusions and lacerations on his head and body. The Court considers that acts of violence such as those alleged by the applicant in principle fall within the scope of Article 3 of the Convention. In this connection it stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V, and Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 ‑ XI ). Furthermore, Article 3 of the Convention also requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”, even if such treatment is administered by private individuals (see, Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005, and Mehmet Ümit Erdem v. Turkey, no. 42234/02, § 26, 17 July 2008).", "67. The Court has had special regard to the distinctive circumstances surrounding the attack on the applicant. It attaches particular importance to the fact that the applicant was physically attacked by seven individuals, in the evening and in an isolated place where any calls for help would appear to have been futile. Furthermore, the attack was premeditated, since the findings of the national authorities, including the statements made by the assailants, reveal that they had planned to find and attack the applicant in retaliation for his previous attack against three of them. The act of violence in question was an assault on the applicant ’ s physical integrity. Such behaviour must have caused the applicant anxiety and fear to a significant degree, and was obviously aimed at intimidating and injuring him.", "68. In addition, the injuries sustained by the applicant cannot be said to have been of a merely trivial nature. In conclusion, having regard to the circumstances of the present case, the Court considers that the applicant ’ s allegations of ill-treatment were “arguable” and capable of “raising a reasonable suspicion” so as to attract the applicability of Article 3 of the Convention. It remains to be determined whether the authorities ’ response to the situation in respect of which the applicant sought their assistance was in line with their positive obligations flowing from Article 3 in conjunction with Article 1 of the Convention.", "(b) Compliance with the State ’ s positive obligations", "69. Once the Court has found that the level of severity of violence inflicted by private individuals attracts protection under Article 3 of the Convention, its case-law is consistent and clear to the effect that this Article requires the implementation of adequate criminal-law mechanisms (see A. v. the United Kingdom; M.C.; and Šečić, all cited above). However, the scope of the State ’ s positive obligations might differ between cases where treatment contrary to Article 3 of the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals. The Court observes in the first place that no direct responsibility can attach to Croatia under the Convention for the acts of the private individuals in question.", "70. The Court observes, however, that even in the absence of any direct responsibility for the acts of a private individual under Article 3 of the Convention, State responsibility may nevertheless be engaged through the obligation imposed by Article 1 of the Convention. In this connection the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, cited above, § 22).", "71. Furthermore, Article 3 requires States to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see, mutatis mutandis, A. v. the United Kingdom, cited above, § 22, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 96, ECHR 2005-VII), and this requirement also extends to ill-treatment administered by private individuals (see Šečić, cited above, § 53). On the other hand, it goes without saying that the obligation on the State under Article 1 of the Convention cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or that, if it is, criminal proceedings should necessarily lead to a particular sanction. In order that a State may be held responsible it must in the view of the Court be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by Article 3 (see X and Y, cited above, § 30, and A. v. the United Kingdom, cited above, opinion of the Commission, § 48).", "72. As to the criminal-law mechanisms provided in the Croatian legal system in connection with the State ’ s obligations under Article 3 of the Convention, the Court notes at the outset that the only criminal offence that expressly prohibits torture or other cruel, inhuman and degrading treatment relates solely to the acts of a State official or another person acting with the acquiescence of such an official, whereas violent acts committed by private individuals are prohibited in a number of separate provisions of the Criminal Code. The Court observes further that Croatian criminal law distinguishes between criminal offences to be prosecuted by the State Attorney ’ s Office, either of its own motion or on a private application, and criminal offences to be prosecuted by means of a private prosecution. The latter category concerns criminal offences of a lesser nature.", "73. The Court further observes that the Croatian legal system also allows the injured party to act as a subsidiary prosecutor. In respect of criminal offences for which the prosecution is to be undertaken by the State Attorney ’ s Office, either of its own motion or on a private application, where the Office declines to prosecute on whatever ground, the injured party may take over the prosecution as a subsidiary prosecutor. In contrast, a private prosecution is undertaken from the beginning by a private prosecutor. However, the prosecution of minors must always be undertaken by the State.", "74. The Court will now examine whether or not the impugned regulations and practices, and in particular the domestic authorities ’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention.", "75. In respect of the duty to investigate, the minimum standards applicable, as defined by the Court ’ s case-law, include the requirements that the investigation be independent, impartial and subject to public scrutiny, and that the competent authorities act with diligence and promptness (see, for example, Çelik and İmret v. Turkey, no. 44093/98, § 55, 26 October 2004). In addition, for an investigation to be considered effective, the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports (see, in particular, Batı and Others v. Turkey (nos. 33097/96 and 57834/00, § 134, ECHR 2004-IV (extracts)).", "76. As regards the steps taken by the national authorities, the Court notes that the police promptly conducted interviews with all of the assailants, the applicant and two neutral witnesses. They also obtained a medical report on the applicant ’ s injuries and filed a criminal complaint against the assailants with the competent State Attorney ’ s Office. However, the further steps taken by the prosecuting authorities and the courts cannot be seen as satisfying the requirement of effectiveness of the criminal - law mechanisms for the purposes of Article 3 of the Convention.", "77. The Court ’ s case-law shows that the requirements of Article 3 of the Convention may go beyond the stage of the investigation. So far the Court has addressed this issue in situations where the alleged ill-treatment was perpetrated by State officials. The relevant principles were stated as follows in its judgment in Ali and Ayşe Duran v. Turkey (no. 42942/02, 8 April 2008):", "“61. The requirements of Articles 2 and 3 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law and the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences and grave attacks on physical and moral integrity to go unpunished (see Öneryıldız, cited above, §§ 95 and 96; Salman v. Turkey [GC], no. 21986/93, § 104-109, ECHR 2000-VII; and Okkalı, cited above, § 65).", "62. The important point for the Court to review, therefore, is whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Articles 2 and 3 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life and the prohibition of ill-treatment are not undermined (see Okkalı, cited above, § 66).”", "78. It must be stated at this juncture that it is not the Court ’ s task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State ’ s responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007, and Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008).", "79. In this connection the Court notes that the obligation on the State to bring to justice perpetrators of acts contrary to Article 3 of the Convention serves mainly to ensure that acts of ill-treatment do not remain ignored by the relevant authorities and to provide effective protection against acts of ill-treatment.", "80. The Court notes that in the present case, the State authorities filed an indictment only against B.B., although the interviews conducted during the investigation clearly showed that the other six assailants were also actively involved in the attack on the applicant. In this connection and as regards the applicant ’ s arguments that his Convention rights could be secured only if the assailants were prosecuted by the State and that the Convention requires State-assisted prosecution, the Court firstly reiterates that its role is not to replace the national authorities and choose in their stead from among the wide range of possible measures that could suffice to secure adequate protection of the applicant from acts of violence. Within the limits of the Convention, the choice of the means to secure compliance with Article 3 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the domestic authorities ’ margin of appreciation, provided that criminal-law mechanisms are available to the victim. However, the Court also notes that under the relevant domestic laws the prosecution of minors must always be undertaken by the State. In the present case only the criminal proceedings against B.B., in his capacity as a minor, were undertaken by the competent State Attorney ’ s Office. In this connection the Court notes that four other assailants, namely S.C., I.Š., F.P. and S.T. were also minors at the time of the attack on the applicant. However, the State Attorney ’ s Office failed to undertake a prosecution against them.", "81. As regards the proceedings instituted by the State authorities, the Court notes that on 4 July 2000 the Zagreb Police Department lodged a criminal complaint against B.B. with the Zagreb State Attorney ’ s Juvenile Office. However, initially no further steps were taken by that Office.", "82. On 12 June 2000 the applicant lodged a criminal complaint with the Zagreb State Attorney ’ s Office against six identified assailants, including B.B., and a seventh unknown individual. The Office remained inactive for eight months, until 12 March 2001, when it forwarded the complaint to the Velika Gorica State Attorney ’ s Office. The latter, however, decided not to institute criminal proceedings against B.B. on the ground that the injury he had allegedly inflicted on the applicant was only of a lesser nature and thus subject to private prosecution. This decision was in contravention of section 45 of the Juvenile Courts Act, which provides that criminal proceedings against minors are to be instituted at the request of the State Attorney in respect of all criminal offences. This error was eventually rectified only when the applicant brought a private prosecution against B.B. in the Juvenile Division of the Velika Gorica Municipal Court. Thus, the criminal proceedings against B.B. were properly instituted by the Zagreb County Court Juvenile Council only on 4 February 2002, almost two years after the incident, although the interviews conducted at the investigation stage had ended on 8 June 2000.", "83. Even when the criminal proceedings against B.B. were eventually instituted before the competent court, the first hearing was scheduled only for 2 November 2002, only to be adjourned because counsel for the defendant failed to appear. Another significant period of inactivity occurred between 26 May 2003 and 12 February 2004, and two months later, on 23 April 2004, the prosecution for the offence with which B.B. had been charged became time-barred, although a decision to that effect was adopted only on 21 December 2005.", "84. As to the criminal proceedings concerning the remaining six assailants, the Court notes that the applicant lodged a criminal complaint against them with the Velika Gorica State Attorney ’ s Office on 12 June 2000. However, this Office declared the complaint inadmissible only on 30 September 2002, again on the ground that a prosecution in respect of the criminal offence of inflicting bodily harm had to be brought privately by the victim. As stated above, this conclusion was contrary to section 45 of the Juvenile Courts Act in respect of four assailants, S.C., I.Š., F.P. and S.T., who were also minors at the time of the incident at issue. This error was actually never rectified and in the end it was the applicant who lodged a private subsidiary indictment against the five suspects (all the assailants but B.B. and the one unidentified assailant) with the Velika Gorica Municipal Court, on 11 November 2002. During these proceedings reports were prepared by the competent Social Welfare Centre, but no hearing was held prior to 23 April 2004, when the prosecution became time - barred. The first hearing was held after that date, on 28 October 2005, and on 11 May 2006 the proceedings were discontinued.", "85. Thus, the facts of the case were never established by a competent court of law. In this connection the Court notes that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be obtained without having the facts of the case established by a competent criminal court. While the Court is satisfied that criminal sanctions against minors may in certain circumstances be replaced by such measures as community service, it cannot accept that the purpose of effective protection against acts of ill-treatment is achieved in any manner where the criminal proceedings are discontinued owing to the fact that the prosecution has become time-barred and where this occurred, as is shown above, as a result of the inactivity of the relevant State authorities.", "86. In the Court ’ s view, the outcome of the criminal proceedings in the present case cannot be said to have had a sufficient deterrent effect on the individuals concerned, or to have been capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant. In conclusion, the Court considers that the above elements demonstrate that, in the particular circumstances of this case, the relevant State authorities did not fulfil their positive obligations under Article 3 of the Convention.", "87. In the Court ’ s view, the impugned practices, in the circumstances of the present case, did not provide adequate protection to the applicant against an act of serious violence and, together with the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s procedural obligations under Article 3 of the Convention.", "88. Having regard to the above the Court finds that there is no separate issue to be examined under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION", "89. The applicant also complained that both his ill-treatment and the subsequent proceedings conducted by the authorities showed that he had been discriminated against on account of his ethnic origin. He relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention. Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "90. The applicant maintained that the attack on him and the lack of action by the authorities had resulted from the fact that he was of Roma origin. He relied on the Nachova case and on the principle that a complaint of racist violence should be accorded utmost priority, as racist violence was particularly destructive of fundamental rights. In this respect the applicant pointed to the broader situation of the Roma population in Croatia as well as the recently published report of the European Commission against Racism and Intolerance (Third Report on Croatia, CRI (2005) 24, 14 June 2005).", "91. The Government considered the applicant ’ s Article 14 complaint wholly unsubstantiated. They maintained that nothing in the conduct of the domestic authorities had indicated a difference in the treatment of the applicant on the basis of his Roma origin or a tendency to cover up events or encourage an attack to his detriment. The course of events had no connection with the ethnic origin of the applicant, but was the result of objective problems experienced by the prosecuting authorities during the proceedings.", "92. In this connection the Government enumerated several cases in which the police had been successful in identifying and prosecuting persons who had committed crimes against individuals of Roma origin. They claimed that no systemic problems were encountered by the Roma population in Croatia other than their difficulties of integration into society, which were common also to other States signatory to the Convention.", "B. The Court ’ s assessment", "93. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160 ).", "94. The Court considers the foregoing to be necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, cited above, with further references).", "95. In the present case, the Court observes that the police interviewed all the alleged assailants and well as the applicant in order to establish the relevant facts surrounding the attack on the applicant. Their statements revealed that the applicant and the assailants had belonged to the same group of friends until 8 December 1999, when the applicant and two other individuals had physically attacked three minors, D.E., S.C. and I.Š., and had also damaged a car owned by the mother of D.E. A few months later, the victims of that attack and their four friends decided to confront and attack the applicant. In the Court ’ s view these circumstances show that the attack on the applicant was rather an act of revenge for his previous attack, and provide no indication that the attack on the applicant was racially motivated.", "96. As to the applicant ’ s contention that one of his assailant, I.Š., had referred to the applicant ’ s Roma origin in his interview with the police, the Court notes that while it is true that I.Š. did so, there is nothing in his statement to indicate that the applicant ’ s Roma origin had played any role in the attack on him. In this connection the Court notes that I.Š. gave no indication that the assailants had attacked the applicant on account of his ethnic origin. The Court also notes that none of the other assailants mentioned the applicant ’ s origin in any way.", "97. Lastly, the Court notes that neither in his interview with the police conducted soon after the attack, on 8 June 2000, nor in his evidence given before the Velika Gorica Municipal Court on 13 January 2003 did the applicant himself indicate that any of his assailants had made reference to his Roma origin. The facts of the case reveal that the applicant and his assailants had actually belonged to the same circle of friends, and there is no indication that the applicant ’ s race or ethnic origin played a role in any of the incidents.", "98. In conclusion, the Court considers that there is no evidence that the attack on the applicant was racially motivated. Therefore, in the circumstances of the present case there has been no violation of Article14 of the Convention read in conjunction with Article 3 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "101. The Government argued that the applicant had submitted the same claim in the civil proceedings pending against his assailants and that his claim for non-pecuniary damage should therefore be rejected. In any event, they deemed the claim excessive.", "102. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.", "B. Costs and expenses", "103. The applicant also claimed EUR 12,975 for the costs and expenses incurred before the domestic courts and before the Court and attached detailed documentation in support of his claim. This included the costs of the lawyer representing the applicant in the domestic proceedings (EUR 1,250), counsel ’ s fees and secretarial expenses. The hourly rates charged by the lawyers were as follows: EUR 70 in respect of the European Roma Rights Centre staff lawyer and EUR 80 in respect of Mrs Kušan.", "104. The Government opposed the reimbursement of the applicant ’ s costs and expenses in the domestic proceedings. Furthermore, they argued that he had not submitted any proof of payment of any costs.", "105. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. As to the criminal proceedings instituted by the applicant against his assailants before the national authorities, the Court agrees that, as they were essentially aimed at remedying the violation of the Convention alleged before the Court, these domestic legal costs may be taken into account in assessing the claim for costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 284, ECHR 2006-...). In the present case, regard being had to the information in its possession and the above criteria, the Court awards the applicant a sum of EUR 1,250 for costs and expenses in the proceedings before the national authorities. As to the Convention proceedings, making its assessment on an equitable basis and in the light of its practice in comparable cases, the Court considers it reasonable to award the applicant, who was legally represented, the sum of EUR 5,000, plus any tax that may be chargeable to the applicant on these amounts.", "C. Default interest", "106. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Incidents of 28 February 2002", "7. The following incidents occurred on 28 February 2002. The detailed accounts of events by the parties and those involved are at variance at times. In this section, therefore, the incidents are described only briefly. Differing details, if any, are pointed out in the subsequent sections.", "1. Argument at the bar", "8. In the evening of 28 February 2002, at around 7.30 p.m., an argument started in a bar in the village of Gánovce-Filice, when a non-Romani waitress, I. S. , refused to serve a drink to a person of Roma ethnic origin, M. K.", "9. The argument developed with the tipping of a drink over M. K. , in response to which he slapped or attempted to slap Ms I. S. in the face, accidentally knocking glasses over, which fell and broke.", "10. Subsequently I. S. telephoned one of her three sons, P. S. , who came to the bar soon afterwards. After he had left, another of her sons, M. S. , who was the owner of the bar, came to the bar and remained there, assisting I. S. in serving customers, until closing time. Around that time, the girlfriend of P. S. , E. N. , also came to the bar and then accompanied I. S. home.", "2. Attack at Roma settlement", "(a) The attack", "11. Later that evening, at around 9.45 p.m., a group of at least twelve people went into the Roma settlement in the village where the applicants lived. Some of them were wearing balaclavas and they were armed with baseball bats and iron bars.", "12. Allegedly shouting racist language, they forcibly entered houses nos. 61, 67 and 69, damaging the interior and breaking the windows.", "13. On entering house no. 67, the attackers physically assaulted applicant Mr Ján Koky. Some of the other applicants and another person, who were also present at the house during the attack, witnessed the attack but managed to avoid it by hiding (see paragraph 16 below).", "14. Once the attackers understood that the police had been called, they made their escape. When they had gone approximately 200 metres from the settlement, they met applicants Mr Martin Kočko and Mr Rastislav Koky and physically assaulted them, causing them the injuries described below. Racist language is alleged to have been used during this part of the attack too.", "(b) Circumstances and consequences of the attack", "15. House 61 was inhabited by applicant Ms Renáta Čonková and her partner, Z. K. They were both at home during the attack.", "16. House 67 was inhabited by applicants Mr Ján Koky, Ms Žaneta Kokyová, Mr Rastislav Koky, Ms Renáta Kokyová, Ms Ružena Kokyová and Mr Ján Koky Jr and by a certain J. K.", "Apart from applicant Rastislav Koky, they were all present at the house during the incident, and so were applicants Mr Milan Baláž and a certain H. B.", "17. When the attack took place in his house, applicant Mr Ján Koky sustained no physical injuries.", "18. House 69 was owned and inhabited by applicant Ms Justína Lacková.", "19. The overall damage to the applicants ’ property was estimated at the equivalent of at least 310 euros (EUR).", "20. The parties are not united over the extent of the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky (see paragraph 14 above).", "21. The applicants claim that Mr Rastislav Koky suffered a skull fracture, a cut to the left side of the back of the head, a crushed left arm, a pressure injury to the left side of the back and bruises to the left knee, which required him to stay in hospital for ten to fourteen days.", "22. As regards Mr Martin Kočko, the applicants claim that he had sustained a scraped elbow and a crushed arm, which required a recovery time of seven to ten days. In that respect the applicants relied on the decisions of 26 April and 22 May 2002 (see paragraphs 73 and 81 below).", "23. In contrast, the Government submit that Mr Martin Kočko ’ s injuries necessitated no stay in hospital, while those of Mr Rastislav Koky only required him to stay in hospital for four days.", "3. Attack at I. S. ’ s family ’ s house", "24. After I. S. had come home from her shift, an unknown person broke the window of her house by throwing a stone at it and also broke the windows of a car parked in her yard.", "25. It is not entirely clear what relation this attack bore to the argument at the bar and the attack at the settlement, both in terms of time and of cause.", "26. It appears that those present during the attack at I. S. ’ s house included I. S. , P. S. , E. N. , her brother : M. N. , and a certain M. L.", "B. Initial response by the police", "27. The police arrived at the Roma settlement about half an hour after the incident. That night and in the early hours of the following day, that is to say 1 March 2002, the police carried out inspections and interviews, as summarised below on the basis of official records.", "1. Inspections", "28. Between 10.30 and 11 p. m. house no. 67 was inspected in connection with a suspected offence, which was referred to as “damage to family house”. Applicant Mr Ján Koky, who lived in the house, was present.", "Broken windows were found in various parts of the house, and two biological traces were identified (bloodstains on a door and on a baseball bat) and sent for further analysis.", "29. Between 0.15 and 1.00 a. m. house no. 61 was inspected in connection with a suspected offence, which was referred to as “damage to windows and door of a house”. Z. K. , whose house it was, was present.", "Damage to the latch and casing of the front door were identified, as well as broken panes in two of the windows. Inside the house, on the floor in the kitchen and a room where the windows had been broken, two stones of 8 and 20 cm diameter were found.", "30. Between 1 a.m. and 1.30 a. m. the following day house no 69 was inspected in connection with a suspected offence, which was referred to as “damage to a window pane of a house”. Applicant Ms Justína Lacková, whose house it was, was present.", "Broken panes in three windows were identified, and one biological trace was sampled for further analysis.", "2. Interviews", "31. Applicant Mr Ján Koky, Z. K. and applicant Ms Justína Lacková were interviewed: the interviews started at 2.25 a. m. , 3.45 a. m. and 4.30 a. m. respectively.", "32. Mr Ján Koky submitted, inter alia, that earlier that evening a group of approximately five attackers had entered his house, no. 67. They had been armed with batons and had tried to hit him. He managed to fend them off and other occupants of his house had managed to hide, so the attackers had mainly been hitting the kitchen furnishings. Four of the attackers were wearing balaclavas to conceal their faces. The remaining one, whom he did not know, had no balaclava. They had not uttered a word.", "33. Z. K. described how the attackers had broken windows in his house, no. 61, had forcibly entered and had made their escape after learning that the police were on their way. According to the transcript, the interview ended at 4.20 a. m. Z. K. then added that when they entered his house the attackers were shouting: “Gypsies, we ’ re going to strike you down today”.", "34. Ms Justína Lacková submitted that she had been at home with her three minor children during the attack and that her husband had not been there. She had witnessed the turmoil outside her house through a window. Two of her house windows had subsequently been broken, probably with sticks, because no stones or other foreign objects had been found inside. In her submission, the attackers had pounded at her entrance door but had not succeeded in getting in. Ms Lacková assessed the damage to her house and submitted a claim for compensation to the proceedings. The interview was concluded at 5.15 a.m. and then reopened to pose a direct question to the applicant, in response to which she retorted that, on the part of the attackers, she had only heard indistinct shouting. The interview was finally concluded at 5.30 a.m.", "C. First investigation into the incidents of 28 February 2002", "1. Initial stage", "35. On 1 March 2002 the Poprad District Police Investigator (“the DPI”) initiated a criminal investigation into the offences of causing bodily harm, violating the privacy of a home and criminal damage within the meaning of Articles 221 § 1, 238 §§ 1 and 3 and 257 § 1 of the Criminal Code (Law no. 140/1961 Coll., as applicable at that time) respectively.", "36. It was suspected that a group of at least twelve individuals had unlawfully entered houses nos. 61, 67 and 69, and that they had damaged these houses, as well as house no. 69. It was also suspected that while at his house the attackers had tried to hit applicant Mr Ján Koky with baseball bats and that while making their escape from the scene of crime, they had assaulted applicants Mr Martin Kočko and Mr Rastislav Koky by hitting them with baseball bats and kicking them, thus causing them bodily injuries on account of which, according to a preliminary estimate, they would need recovery time and would be unfit for work for seven to ten days and ten to fourteen days respectively.", "37. The injuries to the applicants Mr Martin Kočko and Mr Rastislav Koky were also assessed in an expert medical report procured by the DPI, in which their recovery time was assessed at four weeks and thirteen days respectively.", "38. On 1 and 4 March 2002 respectively, an official note was made in the investigation file summarising the applicants ’ submissions and a document was included in it outlining the investigation strategy.", "39. On 5 March 2002 at 10.00 and 10.50 a. m. respectively, the DPI interviewed I. S. and P. S. They described their involvement in the incident at the pub and the subsequent attack which took place at I. S. ’ s house and on his car. I. S. submitted, inter alia, that she had closed the bar and had gone home at around 9.50 p.m. P. S. submitted that the closing time of the bar was 10 p.m. and that his mother had arrived home after that time.", "40. On 7 March 20 02 the DPI reported to the Ministry of the Interior on the status of the investigation. It was mentioned, inter alia, that the applicants ’ legal representative had been obstructing the investigation, in that he had instructed the applicants not to accept summonses to interviews if handed to them in person, and not to take part in any interviews unless he was present. The qualification of the representative to appear on the applicants ’ behalf in criminal proceedings in Slovakia was also called into question.", "2. Interviews on 12 March 2002", "41. In the morning of 12 March 2002, the DPI interviewed applicant Mr Rastislav Koky, T. K. and M. K. and applicants Mr Ján Koky Jr. and Mr Martin Kočko. These interviews started at 8.20, 9.15, 9.45, 10.10 and 10.40 respectively.", "42. Mr Rastislav Koky described the pub incident between I. S. and M. K. According to him, following the altercation I. S. had called P. S. , who had arrived within five minutes, and who had warned Mr Koky that another son of I. S. would come round and there would be trouble. He also submitted that, later that evening, about thirty men had caught and beaten him, that he had subsequently had to be taken to hospital by ambulance, that he had been hospitalised for three to four days and that due to his injuries he was still unfit for work. In response to a direct question, Mr Rastislav Koky submitted that “during the attack, none of the attackers uttered a word”.", "43. T. K. and M. K. submitted that on the evening of the incident they had seen I. S. with a group of forty to fifty men approaching the Roma settlement.", "44. Mr Ján Koky Jr. described the pub incident, including the remark that P. S. had told him and others to go away because his brother would come and there would be trouble. Mr Ján Koky Jr. also submitted that, after he had seen his brother, applicant Mr Rastislav Koky, and his injuries, he had been convinced that P. S. was responsible. He had therefore gone to I. S. ’ s house, where he had had a verbal exchange with E. N. and M. N. However, he had gone away after the latter had produced a handgun and threatened to shoot him.", "45. Mr Martin Kočko described the pub incident, the arrival of P. S. in the pub, the departure of about forty-five men and the assault on him by four individuals wearing balaclavas to conceal their faces and two without, accompanied with a cry “Negroes, gypsies, we ’ re going to kill you”. After receiving medical care in hospital, he had gone home and had not been hospitalised.", "3. Interviews of 13 March 2002", "46. During the morning of 13 March 2002 the DPI interviewed applicants Mr Milan Baláž, Ms Žaneta Kokyová, Ružena Kokyová and Mr Ján Koky. They also interviewed H. B. , the respective interviews having commenced at 8.50, 9.20, At 9.50, 10.25 and at 10.55.", "47. Mr Milan Baláž submitted his account of the assault at house no. 67, where he had been present at the relevant time, visiting his girlfriend. In his submission, the assault had been accompanied by a shout of “Gypsies get out, we ’ re going to kill you!”", "48. Ms Žaneta Kokyová, who lived in house no. 67, gave an account of the assault at their house and settlement, submitting that it had been accompanied by shouts of “ Get out!”, “[ religious expletive ], gypsy whores, gypsy gang, get out, or else we are going to kill you all!” and “Gypsy whores, today you are dead, you are going to get a kicking today !”.", "49. Ms Ružena Kokyová gave an account of the attack at her house, no. 67, submitting that it had been accompanied by a male voice shouting “Gypsies, black muzzles, today you are going to get killed, get out!”.", "50. Mr Ján Koky gave an account of the attack at house no. 67, where he lived, submitting that it had been accompanied by shouts of “Gypsies, today you are going to be burned ”.", "51. H. B. , who was in house no. 67 during the attack, gave an account of it and submitted that it had been accompanied by shouts of “Gypsies, black muzzles, get out!”", "4. Extension of the investigations", "52. On 13 March 2002 the DPI initiated a criminal investigation into a further offence, namely that of violence against an individual or a group of individuals within the meaning of Article 196 §§ 1 and 2 of the Criminal Code.", "53. The decision was based on the suspicion that, in the incident described above, several unidentified individuals had entered the Roma settlement shouting “Gypsies, come out or we will kill you”, while some of them had gone into houses 61 and 67 shouting “Gypsies, come out or we will kill you”.", "54. The decision refers to the charges of 1 March 2002 and to subsequent statements from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Kokyová and Mr Ján Koky Jr.", "55. The decision also refers to the assault on applicant Mr Martin Kočko being accompanied by shouts of “Negroes, gypsies, we will kill you! ”.", "5. Interviews of 14 March 2002", "56. The series of interviews started at 8 a. m. with P. J. , continued at 8.35 a.m. with Ms E.N., and at 9.10 a.m. with the last son of I.S.: M.S.", "57. P. J. said that he could see that I.S. was distressed when he arrived at the bar. E. N. described her arrival at the bar and what happened while she was there, that she went with I. S. to her house, and the subsequent incident there. The deposition of M. S. was fully in line with those of his family members.", "6. Interviews of 20 March and 10 April 2002", "58. In the morning of 20 March 2002 the DPI interviewed applicant Ms Renáta Čonková, J. K. and applicant Ms Renáta Kokyová, whose interviews began at 9.10, 9.45 and 10 a.m. respectively.", "59. Ms Renáta Čonková gave an account of the attack at the house of applicant Ján Koky, which she had observed through the window of her own house. In her submission, the attack at the house of the applicant Ján Koky was accompanied by a shout of “Black whores, today we ’ re going to kill you! ”. As to Ms Čonková ’ s own house, five windows had been broken by thrown stones which were found inside. The attackers had only got as far as a corridor in the house before they made their escape.", "60. J. K. gave an account of the attack at house no. 67, in which she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today you will kick the bucket”.", "61. Ms Renáta Kokyová gave an account of the attack at house no 67, where she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today we ’ re going to kill you”.", "7. Interviews of 27 March and 10 April 2002", "62. The morning of 27 March 20 02 saw a long series of short interviews, starting at 8 with applicant Mr Ján Koky, at 8.10 with applicant Ms Ružena Kokyová, at 9 with H. B. , at 9.30 with J, K, , at 9.35 with applicant Mr Rastislav Koky, at 9.40 with applicant Ms Renáta Kokyová, at 9.45 with applicant Mr Milan Baláž, at 9.50 with applicant Ms Žaneta Kokyová, at 9.55 with Z. K. , at 10.05 with applicant Ms Renata Čonková, at 10.10 with applicant Ms Justína Lacková, and at 10.25 with applicant Mr Martin Kočko.", "63. Mr Ján Koky, Z. K. and J. K. completed their respective depositions of 1 and 20 March 2002 in so far as the extent of the material damage they had sustained was concerned, and added a claim for compensation to the proceedings.", "64. Ms Justína Lacková specified the damage she stated she had sustained and for which she was seeking compensation.", "65. Ms Ružena Kokyová, HB, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová and Ms Renáta Čonková completed their respective depositions of 13 and 20 March 2002 and declared that they had no compensation claim to join to the proceedings, as they themselves had not sustained any material damage. Ms Renáta Kokyová added that compensation for any damage sustained by their family would be claimed by her husband.", "66. Mr Rastislav Koky and Mr Martin Kočko completed their respective depositions of 1 2 March 20 02 in that they specified that, as a result of the injuries sustained in the attack, Mr Rastislav Koky had been incapable of work for fourteen days, from 28 February to 14 March 2002, and Mr Martin Kočko was still unable to work.", "67. At 8 a.m. on 10 April 20 02 the DPI started interviewing applicant Mr Ján Koky Jr, who completed his depositions of 1 March 2002 in so far as the extent of the material damage he had sustained was concerned, and added a claim for compensation to the proceedings.", "8. Further investigative actions", "68. Without providing any details the Government submitted that “[the authorities] had requested records of incoming and outgoing communication to and from mobile phones of [ I. S. ], [ M. S. ], [P. S. ] and [ E. N. ] ”.", "9. Identity exercise on 10 April 2002", "69. On 10 April 2002 the DPI held an identity exercise, in the course of which the participants were to identify presumed perpetrators from photographs in albums. It produced the following results:", "- applicant Mr Ján Koky identified one person, with a subjectively perceived probability of seventy to eighty percent, as one of the people who had been attacking him in his house;", "- applicant Mr Martin Kočko recognised one individual, who had been present at the pub during the argument, but had not been among those who had beaten him. He also identified one individual who had been among those who had beaten him, of which he was sixty percent sure.", "- applicant Ms Žaneta Kokyová identified one individual, with a subjectively perceived probability of fifteen to twenty percent, as an intruder in their house and an attacker of her father;", "- applicant Mr Rastislav Koky recognised two individuals who had been present at the pub during the argument but had not been among those who had beaten him. He also identified one individual who had been present at the settlement during the attack but was not sure whether that individual had beaten him; and", "- applicants Mr Milan Baláž, Ms Renáta Kokyová and Mr Ján Koky Jr. did not identify anyone.", "70. In what may appear to be a follow - up to the identity exercise, on 19 April 20 02, the DPI requested the Police Institute of Forensic Analysis to examine buccal mucus samples of three individuals, B. B. , V. P. and E. K. and to compare biological material thus obtained with other biological evidence taken from the scene of crime.", "10. Conclusion of the first investigation", "71. On 26 April 2002 the DPI suspended the above-mentioned criminal investigations. The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators of the assault of 28 February 2002. Until then, however, no evidence could be established which would have made it possible to bring charges against a specific person.", "72. The decision of 26 April 2002 also stated that it was established that the incident at the Roma settlement “had been preceded by an assault on a waitress, I. S. , by a Roma, M. K. , and subsequent damage to the property of the family of I. S. by a hitherto unidentified Roma and so the actions of the unidentified perpetrators [could] not be considered or qualified as a criminal offence with a racial motive, because it [had come] down only to an act of retribution”.", "73. As to the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko, the decision refers to the decision of 1 March 2002 and its contents (see paragraph 36 above).", "D. Second investigation into the incidents of 28 February 2002", "1. Opening of the second investigation and initial steps taken", "74. On 3 May 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal ( sťažnosť ) against the decision to suspend the investigation. Referring to the facts of the case, they submitted that the assault had been racially motivated and that it had been organised by people who were close to the family of the waitress concerned. Citing, inter alia, Articles 5 and 13 of the Convention, they sought resumption of the investigation.", "75. On the same day, namely 3 May 2002, the Poprad District Prosecutor ( Okresná prokuratúra ) (“the District Prosecutor”) issued a written instruction to the DPI specifying the measures to be taken and lines of inquiry to be pursued in order to establish the identity of the perpetrators and highlight the alleged racial motive.", "76. Still on 3 May 2002, the DPI took a decision to resume the investigation. That decision contains a summary of the previous procedural developments, followed by a plain statement, without further elucidation, that “ during further investigation it [had been] established that a racially motivated criminal offence [was] implicated and therefore it [was] necessary to take further investigative steps and resume the investigation ... ”.", "77. On 14 May 2002 the Police Forensic Analysis Institute filed a report with the DPI concluding that, having examined the biological material of B. B. , V. P. and E. K. (see paragraph 70 above) and having compared it with the material taken from the crime scene, no link could be established.", "2. Interviews of 20 and 21 May 2002", "78. In the morning of 20 May 2002, at 8. 40, 8.50, 9 and 9.15 respectively, the DPI commenced interviewing M.S., P.S. and F.S., as well as M.N. They completed their respective submissions of 14 March, 19 March, 17 April and 3 May 2002 and agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the crime scene.", "79. On 21 May 2002 at 8 am the DPI commenced interviewing M. L. , who gave an account of his arrival in the village and at the bar and also of his perception of the incident at the house of I. S. He stated that he had not been at the Roma settlement.", "80. The following day the DPI again requested the Police Forensic Analysis Institute to analyse and compare biological material obtained from the three sons of I. S. , M. N. and M. L. with the material taken from the scene of crime.", "3. Decision on the first interlocutory appeal", "81. On 22 May 2002 the District Prosecutor declared the interlocutory appeal of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May 2002 (see paragraph 74 above) inadmissible, replying on Articles 43, 124 § 1, 148 § 1 (b) and 173 § 4 of the CCP, and holding that as victims of the alleged offences the appellants had no standing to challenge the decision in question.", "82. In its concluding part, which under the applicable procedural rules (see paragraph 125 below) contains information concerning available remedies, the decision provided that : “ An interlocutory appeal against this decision is not permissible. ”", "83. However, in a letter of the same date, namely 22 May 2002, the District Prosecutor informed the applicants that she had reviewed the matter on her own authority, that on 3 May 2002 (see paragraph 75 above) she had quashed the decision, and that she had instructed the DPI to carry on the investigation so as to clarify the events without leaving any doubt as to the identity and motive of the alleged perpetrators.", "4. Investigative actions taken between 23 May and 18 June 2002", "84. At 8 a.m. on 23 May 2002 the DPI commenced interviewing E. K. During the morning of 4 June 2002 they interviewed R. S. (at 8.30), I. K. (8.45), J. H. (9 .00 ) and M. K. (9.10). On 6, 7 and 18 June 2002 respectively the DPI interviewed J.K. (at 10 a.m. ), P.P. ( at 10 a. m. ) and B.P. (before 9 a. m. ).", "85. They all had either already provided or agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the scene of crime.", "86. In addition, E. K. submitted that he had not been at the Roma settlement and that he had no explanation of how he could have been identified as someone involved in the attack.", "87. R. S. acknowledged having been at the bar with B. P. and J. K. (see paragraphs 9 1 and 93 below) during the incident, which however he had not seen, and he had no information concerning the event investigated.", "88. I. K. stated that he had no knowledge of the incident, of which he had learned from the media, and that he had not been at the Roma settlement.", "89. J. H. had been away on a skiing trip from 28 February until 1 March 2002.", "90. M. K. had been away on business in the week in question and had only returned on 1 March 20 02.", "91. J. K. had been at the bar during the incident, but had not witnessed it directly. He had not been at the Roma settlement and had no knowledge of who had been there.", "92. P. P. acknowledged knowing M. S. However, he had not been at the Roma settlement, remembered nothing useful and had no explanation of why one of the victims had identified him as someone involved in the attack which took place in their house.", "93. B. P. acknowledged having been at the bar with R. S. and J. K. (see paragraphs 87 above and 91 above), but he had not directly witnessed the incident. He had not been at the Roma settlement, nor did he have any knowledge of anyone who had been there.", "94. On 18 June 2002 the Police Forensic Analysis Institute reported to the DPI that, having examined the biological samples taken from F.S., P.S., M.S., M.N. and M.L. (see paragraph 80 above) and having compared it with the material taken from the scene of crime, no link could be established.", "5. Conclusion of the second investigation", "95. On 26 June 2002 the DPI again suspended the investigation, relying on Article 173 § 1 (e) of the CCP, and referring to similar considerations to those in the decision of 26 April 2002. It summarised previous procedural developments and observed that, despite additional information taken from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Koky and Mr Ján Koky Jr., it had not been possible to establish any evidence allowing charges to be brought against any specific person. However, it was considered established that the attack at the Roma settlement had been preceded by the incident at the bar and had been followed by the attack at the house of the family of Ms I. S.", "6. Interlocutory appeal and submission to the Prosecutor General", "96. On 3 July 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal against the decision of 26 June 2002, requesting that the criminal proceedings be resumed with a view to establishing the relevant facts of the case.", "97. The appellants relied on Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution and referred to the results of the identity exercise on 10 April 2002. In particular, they emphasised that, on that occasion, applicant Mr Martin Kočko had recognised one person; applicant Mr Rastislav Koky had recognised F. S. and submitted that the organisation of the attack had had a connection with the family of I. S. ; and applicants Mr Ján Koky and Ms Žaneta Kokyová had recognised one person each.", "98. On 11 July 2002 the applicants ’ representative wrote to the Prosecutor General to inform him that they had lodged an interlocutory appeal against the decision of 26 June 2002 with the District Prosecutor and that they suspected that the investigation had been tampered with in order to downplay the racial motive for the assault. He requested that the applicants be informed of the Prosecutor General ’ s office ’ s actions in the matter.", "99. The applicants have not received any answer to their letter of 11 July 2002, and it appears that it has not given rise to any specific action or decision. According to an official statement of the Office of the Prosecutor General the letter is not a part of their case file.", "100. On 17 July 2002 the District Prosecutor declared the interlocutory appeal inadmissible on similar grounds to those in the decision of 22 May 2002, relying on Articles 43, 142 § 1 a 173 of the CCP.", "101. The decision contains information as to the available remedies, to the effect that: “An interlocutory appeal against this decision is not permissible.”", "102. Nevertheless, the District Prosecutor reviewed the decision on her own initiative and, by a letter of the same day, namely 17 July 2002, informed the appellants that the DPI had taken all the actions necessary to carry out a successful prosecution.", "103. According to the letter, it was true that applicant Mr Rastislav Koky had recognised P. S. , F. S. and M. N. , but he had submitted either that they had not beaten him or that he was not sure whether they had beaten him. Applicant Mr Ján Koky had recognised F. S. and had submitted that it was the latter who had beaten him in his house. This submission however contradicted a previous submission by applicant Mr Ján Koky (see paragraph 32 above) to the effect that, of the five attackers in his house, four were wearing balaclavas and one, whom he did not know, was not. It was also observed that Ms Žaneta Kokyová had not recognised any of the attackers.", "104. The letter further states that additional action had been taken with a view to identifying those responsible, such as a comparison of the traces found at the scene of the incident with buccal mucus samples from the suspects, but the available evidence did not permit the bringing of charges against any particular person.", "7. Further investigative steps", "105. Meanwhile, on 11 July 20 02 and again on 19 August and 8 November 2002, the DPI interviewed seven other individuals. These interviews however produced no useful new information.", "106. On an unspecified date, in response to a request of 20 August 20 02, the Police Institute of Forensic Analysis reported to the DPI that, having examined buccal mucus samples from P. G. , M. S. and M. A. and compared it with the biological material taken from the scene of crime, no link could be established.", "107. On 13 January 20 03, in response to a request, the DPI reported to the District Prosecutor that hitherto “no perpetrator had been identified and that tasks were continuously being carried out under an integrated investigation plan ”.", "108. No information has been made available in respect of any further investigative actions and their outcome.", "E. Constitutional complaint", "109. On 17 September 2002 all ten applicants lodged a complaint with the Constitutional Court under Article 127 of the Constitution. Represented by a lawyer, they contended that the events of 28 February 2002 had not been sufficiently thoroughly and efficiently investigated to ensure that those responsible were identified and punished. In particular, they submitted that the authorities had failed to draw adequate conclusions from the oral evidence and from the information concerning the identity of the alleged perpetrators, as obtained from the identity exercise of 10 April 2 002. In addition, the authorities should have taken and assessed further evidence, such as records of mobile telephone communications between those involved, but had not done so. The applicants also contended that the assault had not been motivated by revenge but was racially motivated, to which the authorities had failed to pay adequate attention.", "110. In the text of their complaint the applicants made reference to Article 1 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), in conjunction with a principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court ’ s judgment in the case of Aksoy v. Turkey (18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI).", "111. In the standardised prescribed form containing a summary of their claim, the applicants applied for a ruling declaring a violation of their right to an effective remedy under Article 13 of the Convention and to judicial and other legal protection under Article 46 § 1 of the Constitution by actions of the DPI in the investigation referred to above.", "112. On 23 October 2002 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to exhaust all remedies as required by section 53(1) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended ).", "113. In particular, the Constitutional Court held that it had been open to the applicants to ask the Public Prosecution Service (“the PPS”), under Articles 167 and 174 § 2 (a) and (c) of the CCP, to instruct the DPI to proceed with the case. Had such a request been dismissed, the applicants could have used further remedies available to them under sections 31 et seq. of the PPS Act.", "No appeal against the decision of the Constitutional Court was available." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "114. Article 1 § 2 provides that:", "“The Slovak Republic acknowledges and adheres to general rules of international law, international treaties by which it is bound, and its other international obligations.”", "115. In so far as relevant, Article 15 stipulates that:", "“1. Everyone has the right to life. [ ... ]", "2. No one shall be deprived of life.", "...", "3. No infringement of rights according to this Article shall occur if a person has been deprived of life in connection with an action not defined as unlawful under the law.”", "116. Article 21 § 1 provides that:", "“The home shall be inviolable. Entry without the consent of the person living there is not permitted.”", "117. Article 46 § 1 of the Constitution reads as follows:", "“Everyone may claim his or her right by procedures laid down by an act of parliament before an independent and impartial court of law or, in cases provided for by an act of parliament, before another organ of the Slovak Republic .”", "118. Pursuant to Article 127:", "“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.", "2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person ’ s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act, and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.", "3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.”", "B. The Constitutional Court Act", "119. Article 31a reads as follows:", "“Unless this Act provides otherwise or it is excluded by the nature of the matter, the proceedings before the Constitutional Court shall be subject to application mutatis mutandis of the provisions of the Code of Civil Procedure and the Code of Criminal Procedure.”", "120. Under the relevant part of section 53(1) and (2) :", "“ 1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant ’ s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute [such as the Civil Procedure Code and the Administrative Procedure Code].", "2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition due to reasons worthy of particular consideration.”", "C. Code of Criminal Procedure (as in force at the relevant time)", "121. The purpose of the CCP is defined in its Article 1 § 1 as follows:", "“The purpose of the [CCP] is to regulate actions of the agencies involved in criminal proceedings with a view to establishing properly whether criminal offences have been committed and to punishing perpetrators lawfully and justly. The proceedings must work for reinforcement of compliance with the law, for prevention and obstruction of crime, [and] for the education of citizens in the spirit of consistent compliance with the law and rules of civic coexistence, as well as honest fulfilment of duties towards the State and the society.”", "122. The fundamental principles of criminal proceedings are laid down in Article 2, the relevant parts of paragraphs 3 and 5 of which provide:", "“3. The prosecutor is duty bound to prosecute all criminal offences of which [he or she] has been apprised; any exception is permissible only under statue or a promulgated international treaty.", "5. The agencies involved in criminal proceedings shall proceed so that the facts of the matter are duly established, to the extent which is absolutely necessary for their decision. With equal care, they shall elucidate circumstances both against and in favour of the charged person and, in both respects, they shall take and examine evidence without awaiting the parties ’ proposals. ... ”", "123. The role of victims of crimes in criminal proceedings is defined in section ( Oddiel ) five of chapter ( Hlava ) two in part ( Časť ) one. The relevant part of its Article 43 § 1 provides as follows:", "“1. A victim is a person upon whom a criminal offence has inflicted health damage, property damage, non-pecuniary damage or other damage or it has violated or jeopardised [his or her] rights or freedoms protected by law. A victim has ... the right to lodge [in the proceedings] [his or her] claim for damages; to propose that evidence be taken, examined and completed; to take part in the hearing, ...; to comment on the evidence taken and examined ...; and to make use of legal remedies to the extent defined by the CCP ...", "2. A victim who has a lawful claim against a person facing charges for compensation in respect of damage inflicted [on the victim] by a criminal offence, shall be entitled to propose that, in a judgment leading to conviction, the court should impose a duty on the accused to compensate for that damage. The proposal shall be made at the latest during the main court hearing before the presentation of evidence. The proposal has to be clear as to the ground and the amount of damages claimed. ”", "124. Section 3 of Chapter 3 in Part 1 contains rules concerning the making of and dealing with applications, the relevant part of its Article 59 § 1 providing that:", "“An application shall be assessed according to its content, irrespective of whether it is incorrectly named.”", "125. Section 2 of Chapter 6 in Part 1 lays down rules concerning decisions ( uznesenie ), paragraph 134, the relevant part of which is cited below, defining the attributes, structure and content of a decision:", "“1. A decision must contain ...", "e) information about available remedies.”", "126. Chapter 7 in Part 1 regulates interlocutory appeals against decisions, their admissibility being defined in Article 141, the relevant part of which provides:", "“1. A remedy in respect of decisions consists of an interlocutory appeal.", "2. An interlocutory appeal shall be available against any decision of an investigator or a police authority except for a decision on the opening of a criminal prosecution (Article 160). A decision by a court or by a prosecutor may be challenged by an interlocutory appeal only in those instances where the statute expressly so provides and if [a matter] is being decided on at first instance.”", "127. Article 142 contains locus standi for such appeals, as follows :", "“1. Unless provided for otherwise by a statute, an interlocutory appeal may be lodged by a person who is directly affected by the [impugned] decision or who has prompted the decision by a request which [the appellant] was entitled to make by law ... .”", "128. Section 2 of Chapter 10 in Part 2 regulates investigations, Article 167 providing for the possibility of having an investigator ’ s actions reviewed, in the following terms:", "“The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ ensure ] that delays in the investigation or shortcomings on the part of the investigator be eliminated. The right to make such a demand shall not be restricted by any time-limit. This demand, which must be submitted to the prosecutor at once, must be dealt with by the prosecutor without delay. The outcome of the review must be notified to the person making the demand. ”", "129. Section 4 of Chapter 10 in Part 2 deals with decisions at the preliminary stage of the proceedings, the relevant part of Article 173 providing that:", "“1. An investigator shall suspend criminal proceedings ...", "(e) if it has been impossible to identify evidence allowing for the prosecution of a particular person ...", "3. Prior to suspending criminal proceedings everything needs to be done which is necessary for securing a successful completion of a criminal prosecution. Should there no longer be any reason for the suspension, the criminal proceedings shall be resumed. ”", "130. Section 5 of Chapter 10 in Part 2 regulates the prosecutor ’ s supervision of adherence to lawfulness in pre-trial proceedings, the relevant part of Article 174 providing that:", "“1. Supervision of lawfulness in pre-trial proceedings shall be carried out by the prosecutor.", "2. While carrying out this supervision, the prosecutor shall have the power:", "(a) to give binding instructions for the investigation of criminal offences ...", "(c) to take part in activities carried out by an investigator or a police authority or directly to take a particular action, to carry out the entire investigation and to take a decision on any matter whereby the provisions of [the CCP] normally applicable to an investigator shall apply to the prosecutor mutatis mutandis and, as a decision of an investigator, the decision by the prosecutor shall be challengeable by an interlocutory appeal.”", "D. Public Prosecution Service Act (as in force at the relevant time)", "131. The Act entered into force on 1 May 2001, replacing previous legislation (Law no. 314/1996 Coll., as amended). The object of the Act is defined in its section 1, which reads as follows:", "“1. This Act determines the status and jurisdiction of the Public Prosecution Service, the status and jurisdiction of the Prosecutor General, the status of other prosecutors, organisation and administration of the Public Prosecution Service.", "2. The status of prosecutors; their rights and obligations; the establishment, modification and termination of [their] service relationship and the claims ensuing from it; the relationships of responsibility; disciplinary proceedings and self ‑ governance of prosecutors shall be subject to a special statute.”", "132. Petitions to the PPS are regulated by Part ( Časť ) four of the Act. Pursuant to the relevant part of its section 31:", "“ 1. A prosecutor may examine the lawfulness of actions and decisions of bodies of public administration, prosecutors, investigators, police authorities and courts in so far as a statute so provides, including upon a petition, and is entitled to take measures to rectify established violations, provided [such measures] do not fall under a special statute within the exclusive jurisdiction of other bodies.", "2. A petition is understood as a written or oral demand, proposal or other submission by an individual or a legal entity, which is aimed at a prosecutor taking a measure within [the prosecutor ’ s] jurisdiction, in particular lodging an application for proceedings to commence before a court, or submitting a remedy, joining existing proceedings, or taking other measures for rectification of a violation of the law, which fall within [the prosecutor ’ s] jurisdiction. ”", "133. The relevant part of section 33 provides that:", "“1. A prosecutor is duty bound to process a petition within two months of its introduction ...", "2. A prosecutor shall notify a petitioner within the period specified in subsection 1 of the manner in which the petition has been resolved. [ ... ]”", "134. Section 34 deals with repeated petitions and further repeated petitions. Its relevant part reads as follows:", "“1. A petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition, which shall be dealt with by a prosecutor at a higher level.", "2. A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information. A further repeated petition is understood to be a third and any further consecutive petition, in which the petitioner expresses discontent with the manner in which [his or her] petitions in the same matter have been resolved. ”", "135. Under the relevant part of section 35:", "“ 1. In dealing with a petition, a prosecutor is duty bound to examine all circumstances decisive for the assessment of whether there has been a violation of the law; whether the conditions are fulfilled for lodging an application for proceedings before a court to commence or for submitting a remedy; or whether [the prosecutor] may join existing proceedings before a court or take other measures which [the prosecutor] is entitled to take under [the Public Prosecution Service Act].”", "2. The prosecutor assesses the petition according to its content ...", "3. If the prosecutor establishes that a petition is well founded, [he or she] shall take measures for rectification of the violation of law pursuant to [the Public Prosecution Service Act] or a special statute. ”", "E. Constitutional Court practice", "136. In a decision of 13 December 2001 (in case no. III. ÚS 123/0 1 ) the Constitutional Court declared inadmissible a submission, in which an individual had complained that criminal proceedings against him had been too lengthy and that they, as well as a warrant for his arrest, had been unjustified.", "In rejecting the claim, the Constitutional Court held that, in respect of the criminal proceedings as such, it was for the applicant first to seek redress from the investigator or the supervising prosecutor by the means available under the CCP and, as the case might be, also from a higher level of the PPS by means available under the PPS Act. As to the arrest warrant, it was for the applicant to assert his rights before the ordinary courts.", "137. In a decision of 20 November 2002 (in case no. I. ÚS 143/02) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested the way the PPS had handled his complaint concerning interference with his correspondence by prison authorities.", "In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a repeated petition under section 34(1) of the Public Prosecution Service Act.", "138. In a decision of 2 July 2003 (in case no. III. ÚS 155/03) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution in which an individual had contested a decision of the PPS quashing a previous decision of an investigator to restore to the applicant cash and objects retained in the context of criminal proceedings against him.", "In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a petition under section 31 of the PPS Act, irrespective of the fact that the decision was not subject to appeal under the CCP.", "139. In a decision of 28 April 2004 (in case no. III. ÚS 127/04) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested a decision by the PPS to reject an interlocutory appeal by the complainant against a decision of a lower level of the PPS to discontinue proceedings in the complainant ’ s criminal complaint concerning an alleged violation of the privacy of a home. In that case, the interlocutory appeal had been rejected because, being in the procedural position of a victim, the complainant had no standing to appeal.", "In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek a review of the decision at the highest level of the PPS, that is to say the Prosecutor General, under sections 31 to 36 of the PPS Act.", "At the same time, the Constitutional Court observed that no grounds had been established for exempting the complainant from the obligation to use that remedy.", "140. The principles stemming from the Constitutional Court ’ s decisions mentioned above were applied mutatis mutandis in the Constitutional Court ’ s subsequent decisions of 26 May 2004 (in case no. IV. ÚS 179/04) and 24 May 2007 (in case no. IV. ÚS 126/07).", "141. Meanwhile, on 7 July 2006 (in case no. II. ÚS 223/06), the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution of 14 June 2006, in which a group of individuals had contested the outcome of the proceedings concerning their criminal complaint of an alleged abuse of official authority in connection with the termination of their service in the police.", "The Constitutional Court observed that the complainants ’ criminal complaint had been rejected on 21 July 2005 and that their interlocutory appeal to the PPS had been dismissed on 29 September 2005.", "The Constitutional Court found that, as the constitutional complaint had been lodged on 14 July 2006, it had clearly been lodged outside the statutory two-month time-limit for lodging such a complaint.", "The Constitutional Court held that the position had not been altered by the subsequent decisions at a higher level of the PPS to dismiss the complainants ’ petition and repeated petition for re ‑ examination of the lawfulness of the decision of 29 September 2005.", "In reaching that conclusion, the Constitutional Court observed that the complainants ’ petition and repeated petition had been aimed at having a complaint in the interest of law ( sťažnosť pre porušenie zákona ) lodged by the Prosecutor General on their behalf, which was however an extraordinary remedy, and a negative decision : accordingly it did not restart the running of the two-month time-limit.", "F. Criminal Code (as in force at the relevant time)", "142. The offence of violence against a group of citizens and against an individual is defined in Article 196, the relevant part of which reads as follows:", "“1. He who threatens a group of citizens with killing, causing bodily harm or causing damage on a large scale ( škoda veľkého rozsahu ) shall be punished by imprisonment for up to one year.", "2. He who perpetrates violence against a group of citizens or an individual or threatens them with death, causing bodily harm or causing damage on a large scale on account of political belief, nationality, race, affiliation to an ethnic group, religion or because they are without religion, shall be punished by imprisonment for up to two years.”", "143. The offence of causing bodily harm is defined in Article 221, the relevant part of which provides that:", "“ 1. He who intentionally causes bodily harm to another ’ s health shall be punished by imprisonment for up to two years or by a financial penalty. ”", "144. Article 238 defines the offence of violating the privacy of a home, its relevant part reading as follows:", "“1. He who enters a house or a flat of another without authority to do so or remains there unauthorised shall be punished by imprisonment for up to two years or by a financial penalty ...", "3. The perpetrator who, in committing the act referred to in section 1, applies violence or a threat of immediate violence and commits such an act with a weapon or with at least two others shall be punished by imprisonment for between one year and five years.", "145. The offence of criminal damage is defined in Article 257, the relevant part of which provides that:", "“ 1. He who destroys, damages or makes unusable something belonging to someone else and thereby causes a non-negligible damage ( škoda nie nepatrná ) to someone else ’ s property shall be punished by imprisonment for up to one year or interdiction of an activity or a financial penalty or forfeiture of an item of property .”", "III. RELEVANT INTERNATIONAL PRACTICE", "A. The Committee on the Elimination of Racial Discrimination", "1. Anna Koptova v. Slovak Republic, Communication No. 13/1998, U.N. Doc. CERD/C/57/D/13/1998 (2000).", "146. The communication was considered by the Committee in an Opinion adopted at its meeting on 8 August 2000.", "147. The case concerned difficulties that the petitioner and several other families, being of Roma ethnic origin, had been experiencing with settling down and establishing a home and, in particular, two municipal resolutions forbidding the families in question from settling in the villages concerned and threatening them with expulsion.", "The petitioner unsuccessfully complained about the municipal resolutions before the Constitutional Court and a criminal investigation into the matter was suspended, by a decision of the PPS.", "148. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to contest the decision to suspend the investigation under the PPS Act of 1996 (see paragraph 131 above) and to assert her rights by way of an action for protection of her personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4. 4 and 4. 6 of the Opinion).", "149. The Committee, however, “did not share the State party ’ s view that domestic remedies had not been exhausted and considered that neither a new petition to the Constitutional Court nor a civil action would be effective remedies in the circumstances of the case” (see paragraph 6.4 of the Opinion).", "2. Miroslav Lacko v. Slovak Republic, Communication No. 11/1998, U.N. Doc. CERD/C/59/D/11/1998 (2001)", "150. The communication was considered by the Committee in an Opinion adopted at its meeting on 9 August 2001.", "151. The case concerned a Slovak national, who had been refused service in a restaurant and was told to leave on account of his Roma ethnic origin, and an alleged failure by the State party to sanction or remedy this treatment. Following investigation upon the petitioner ’ s criminal complaint in that respect, the police found that there was no evidence that any criminal offence had been committed. Upon the petitioner ’ s appeal to the PPS, the decision was upheld.", "152. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to seek a review of the lawfulness of the position taken by the public prosecution service at a higher level in that body under the PPS Act of 1996 (see paragraph 131 above) and of asserting his rights by way of an action for protection of his personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.1 and 4.2 of the Opinion).", "153. In response, the Committee observed that Article 14 § 7 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the Committee is not to consider any communication unless it has ascertained that all available domestic remedies have been exhausted and that it has held in its previous jurisprudence that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case (see paragraph 6.2 of the Opinion).", "154. Furthermore, the Committee noted that “ the decision of the [ PPS ] was a final decision as far as the criminal procedure was concerned. The State party [had] failed to demonstrate that a petition for review, which would be a remedy against the legality of the decision, could in the present case [have] [led] to a new examination of the complaint ”. Furthermore, the Committee found that “ the facts of the claim were of such a nature that only criminal remedies could constitute an adequate avenue of redress. The objectives pursued through a criminal investigation could not be achieved by means of civil or administrative remedies of the kind proposed by the State party ”. Therefore, the Committee found that “ no other effective remedies were available to the petitioner ” (see paragraph 6.3 of the Opinion).", "B. The Committee against torture", "Henri Unai Parot v. Spain, Communication No. 6/1990, U.N. Doc. A/50/44 at 62 (1995)", "155. The communication was considered by the Committee at its meeting on 2 May 1995. Among the views it adopted, in the relevant part of their paragraph 6.1, dealing with the requirement of exhaustion of domestic remedies, the Committee:", "“considered that, even if these attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law, they left no doubt as to [the alleged victim ’ s] wish to have the allegations investigated. The Committee concluded that, in the circumstances, it was not barred from considering the communication.”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "156. The Government objected that the applicants had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that they should have, but had not, asserted their Convention rights by way of threefold remedies, which are dealt with below in turn.", "A. CCP and PPS Act", "1. The Government", "157. In their observations on the admissibility and merits of the application, the Government contended that the applicants, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justina Lacková and Mr Ján Koky Jr. had not sought review of the actions of the DPI by the PPS under Article 167 of the CCP. Should they have been unsuccessful with asserting their rights by means of such a review, it was open to them further to seek review of the lawfulness of the actions of the DPI and even of the PPS by way of a petition and, as the case may be, a renewed petition to higher levels of the PPS under sections 31 et seq. of the PPS Act.", "158. As regards applicants Mr Ján Koky and Mr Rastislav Koky, the Government submitted that, although the District Prosecutor had declared their interlocutory appeals against the DPI ’ s decisions to suspend the investigation inadmissible, the District Prosecutor had actually examined the decisions, quashing the former and remedying the situation.", "159. As in their original observations, in their further observations on the merits the Government relied on the decision of the Constitutional Court of 23 October 2002.", "160. In the latter observations, the Government submitted that none of the applicants had availed themselves of the remedy available to them under Article 167, in conjunction with Article 17 4 § 2 (a) and (c) of the CCP, namely a request to the PPS for review of actions of the DPI.", "161. As regards applicants Mr Ján Koky and Mr Rastislav Koky, the Government pointed out that the District Prosecutor had never made any pronouncement to the effect that they were not entitled to the remedies under section 31 et seq. of the PPS Act and that, quite to the contrary, the District Prosecutor had dealt with their interlocutory appeals as provided for under section 31 of the PPS Act. It was nevertheless open to them to pursue their rights further by means of a renewed petition under section 34 of the PPS Act.", "162. In support of the above contentions, the Government relied on the case-law of the Constitutional Court, as summarised above, and submitted that none of these remedies had been subject to a time-limit and that, as the investigation had not been terminated but only suspended, the remedies were all still at the applicants ’ disposal", "2. The applicants", "163. The applicants considered that, in view of the gravity of the case, rather than dwelling on the procedural intricacies of various remedial mechanisms, the respondent State should have addressed the situation proactively and on its own initiative.", "164. The applicants further submitted that if there were several avenues of redress at their disposal they should not be required to try more than one of them.", "165. The applicants also submitted that, in so far as applicants Mr Ján Koky and Mr Rastislav Koky were concerned, their interlocutory appeals under the CCP had been rejected on account of their lack of standing to appeal, the respective decisions informing them that no further appeal was available as, indeed, was the case under the CCP, to disprove which the Government had submitted nothing in terms of jurisprudence or otherwise.", "166. As regards the remaining applicants, it was submitted that they were in an identical position to applicants Mr Ján Koky and Mr Rastislav Koky and that, accordingly, any remedies on their part would be bound to meet with the same result as those of Mr Ján Koky and Mr Rastislav Koky.", "167. In the applicants ’ submission, the Government had failed to substantiate that, in the circumstances, any further submission to the PPS had had better prospects of success than those already made.", "In that context, the applicants pointed out that, at the relevant time, the PPS Act had been a relatively new piece of legislation with no existing case-law, to the effect that the remedies referred to by the Government were to be exhausted prior to the lodging of a complaint with the Constitutional Court.", "The Constitutional Court ’ s decision of 20 November 2002 (see paragraph 137 above ) and any of its subsequent decisions in similar matters, as relied on by the Government, post-dated the applicants ’ constitutional complaint and were accordingly not of relevance.", "3. The Court ’ s assessment", "168. The Court observes that, in its admissibility decision in the present case, it decided to join to the merits the question of the exhaustion of domestic remedies under Article 167 of the CCP and section 31 et seq. of the PPS Act. It will accordingly proceed to examination of this question, relying on the general principles and applying them as laid out below under separate headings.", "(a) General principles", "169. The Court reiterates the following general principles, which are of relevance in this case, as formulated and summarised, for example, in its judgment in the case of Akdivar and Others v. Turkey ([GC], 16 September 1996, §§ 65 - 69, Reports of Judgments and Decisions 1996 ‑ IV):", "- The rule of exhaustion of domestic remedies obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights.", "- Under this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.", "- The rule also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used.", "- However, as indicated above, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective.", "- In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.", "- The application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants.", "170. Moreover, as further formulated and summarised by the Court, for example, in the case of Mađer v. Croatia (no. 56185/07, § 87, 21 June 2011):", "- Where an applicant has a choice of domestic remedies, it is sufficient for the purposes of the rule of exhaustion of domestic remedies that he or she make use of a remedy which is not unreasonable and which is capable of providing redress for the substance of his or her Convention complaints.", "- Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court interprets the requirement of exhaustion of domestic remedies in the applicant ’ s favour.", "- Once the applicant has used such a remedy, he or she cannot also be required to have tried others that were available but probably no more likely to be successful.", "(b) Application of the general principles in the present case", "171. As to the circumstances of the present case, the Court reiterates first of all that it has been recognised that the Constitutional Court is the supreme authority for the protection of human rights and fundamental freedoms in Slovakia, and that it has jurisdiction to examine individual complaints and to afford complainants redress if appropriate (see, mutatis mutandis, Lawyer Partners, a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR 2009-..., with further references).", "172. The applicants in the present case resorted to the Constitutional Court by way of an individual complaint under Article 127 of the Constitution.", "173. As regards the scope of their constitutional complaint, the Court observes that the applicants mainly contended that the events of 28 February 2002 had not been thoroughly and efficiently investigated so as to ensure that those responsible were identified and punished (see paragraph 109 above), making reference to Article 1 § 2 of the Constitution, the principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court ’ s judgment in the case of Aksoy v. Turkey (cited above) (see paragraph 110 above), and in the summary of their claim seeking a finding of a violation of Article 13 of the Convention and Article 46 § 1 of the Constitution (see paragraph 111 above).", "174. The Court is of the view that the scope of the applicants ’ constitutional complaint has to be viewed in the context of the proceedings, in which Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution were cited (see paragraph 97 above).", "175. Bearing in mind that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I), the Court is of the view that, on the particular facts of the present case, the scope of the applicants ’ constitutional complaint was such as to allow the Constitutional Court to examine the matters now arising before the Court.", "176. At the same time, the Court points out that the circumstances of the present case differ from those where a particularly strict interpretation and application by the Constitutional Court of the formal rules on the scope of the constitutional complaint were held acceptable in Convention terms in the context of the length of proceedings ( see, for example, Obluk v. Slovakia, no. 69484/01, §§ 48, 51 and 61, 20 June 2006; Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006; Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009; and STARVYS, s.r.o. v. Slovakia (dec.), no. 38966/03, 30 November 2010 ).", "177. The Court however observes that the applicants ’ constitutional complaint was declared inadmissible on 23 October 2002 under section 53(1) of the Constitutional Court Act, on the ground that the applicants had failed to exhaust ordinary remedies (see paragraph 112 above ) under Articles 167 and 174 § 2 (a) and (c) of the CCP and sections 31 et seq. of PPS Act (see paragraphs 113 above).", "178. To that end, the Court acknowledges that it is first of all for the national authorities to devise means and methods of examining individual complaints so as to render the protection of the individual rights effective (see Gál v. Slovakia, no. 45426/06, § 65, 30 November 2010, and Michalák v. Slovakia, no. 30157/03, § 176, 8 February 2011 ). More specifically, the Court acknowledges that, in line with the subsidiary role of its jurisdiction, it is first of all for the Constitutional Court to interpret and apply the rules on admissibility of individual complaints before it.", "179. Nevertheless, it remains the Court ’ s task to satisfy itself in each individual case whether the protection of the applicant ’ s rights granted by the national authorities is comparable with that which the Court can provide under the Convention (see, mutatis mutandis, Bako, cited above; Gál, cited above, § 66; and Michalák, cited above, § 177). More specifically, the Court considers that, in the circumstances of the present case, it remains to be ascertained whether there is anything more for the applicants to do in order to satisfy the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.", "180. In that respect, the Court considers that it is reasonable to assume that the applicants were victims of criminal offences. In that capacity, they became involved in criminal proceedings against one or more persons unknown which, at the given stage, were aimed at investigating the relevant facts and establishing the identity of the perpetrators.", "181. The Court also observes that the procedural framework for those proceedings and the applicants ’ role and legal position as victims in them were defined by the provisions of the CCP. It was among other things the purpose of those proceedings to establish the facts and to identify and punish the perpetrators (see paragraph 21 above). Being considered victims of the alleged offences, the applicants had an array of procedural rights (see paragraph 123 above) which included, inter alia, that their submissions be assessed as to content irrespective of their name or form (see paragraph 124 above) and that the applicants be informed on available remedies (see paragraph 125 above).", "182. The Court notes that the orders to suspend the proceedings were taken in the procedural form of a decision ( uznesenie ), that they were then challenged by applicants Mr Ján Koky and Mr Rastislav Koky by way of an interlocutory appeal to the PPS, and that these appeals were rejected for the appellants ’ lack of standing to appeal.", "183. At the same time, the Court notes that the decisions rejecting these appeals expressly stated that, as indeed appears to be the case under the relevant provisions of the CCP, no further interlocutory appeal was permissible and that they contained no instructions about any other remedy. None the less, the PPS on its own initiative reviewed the contested situation in the light of the appellants ’ arguments, in which ultimately it found no merit.", "184. The Court also observes that nothing has been proposed by the Government or established by the Court otherwise to suggest that the position of the remaining applicants in respect of the remedies used by applicants Mr Ján Koky and Mr Rastislav Koky was such as to support a conclusion that the use of these remedies by them had better chances of success than those of applicants Mr Ján Koky and Mr Rastislav Koky. The Court accordingly finds no reason for considering the remaining applicants in relation to the exhaustion requirement under Article 35 § 1 of the Convention differently from applicants Mr Ján Koky and Mr Rastislav Koky.", "185. As to the specific remedies referred to by the Government, that is to say those under Article 167 of the CCP and sections 31 et seq. of the PPS Act, the Court observes that there appears to be a degree of uncertainty as to the functioning of the system in respect of the various remedies available in the applicants ’ situation and their mutual causal and functional relationship.", "186. The Court notes that this uncertainty has been enhanced by what may appear to be a certain incongruity in the relevant part of the Government ’ s argumentation in their observations on the admissibility and merits of the case and in their further observations on its merits.", "In particular, in the former observations, the Government appear not to have intended to reproach Mr Ján Koky and Mr Rastislav Koky for not having resorted to the remedy under Article 167 of the CCP, whereas in their latter observations they may be understood as arguing that none of the applicants, that is to say including Mr Ján Koky and Mr Rastislav Koky, have.", "187. The lack of clarity as to the procedural regime in which the PPS examined the arguments of applicants Mr Ján Koky and Mr Rastislav Koky, presented in their inadmissible interlocutory appeals, and any relationship of causality between their arguments and the continuation of the investigation under the order of the District Prosecutor of 3 May 2002, is further enhanced by the fact that the District Prosecutor ’ s decision on a written reply to the interlocutory appeal, which had been lodged on the same day as the order, was not made until 22 May 2002, which was after the order in question, and that neither the order nor the decision to resume the investigation appear to make any reference to the interlocutory appeal.", "188. However, judging the submissions of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May and 3 July 2002 by their content, which the District Prosecutor appears also to have been duty bound to do, and having regard to the District Prosecutor ’ s response to these submissions as well as the Government ’ s original observations on the admissibility and merits of this case, the Court finds that the applicants cannot be considered as having failed to make use of the remedy available to them under Article 167 of the CCP.", "189. Turning to the remedies under sections 31 et seq. of the PPS Act, the Court considers it of relevance at the outset to evaluate the purpose of this piece of legislation, which is to determine the status and jurisdiction of the PPS, the status and jurisdiction of the Prosecutor General, the status of other prosecutors and organisation and administration of the PPS (see paragraph 132 above). In other words, it appears to be primarily a tool of internal organisation of the PPS, rather of granting and regulating individual rights of substance or procedure, which in turn appears to be a matter to be addressed by the relevant procedural codes.", "190. As to the case-law of the Constitutional Court concerning the interpretation and application of the exhaustion of ordinary remedies in respect of the remedies under sections 31 et seq. of the PPS Act, the Court observes that, except for the Constitutional Court ’ s decision of 13 December 2001, all the other decisions relied on by the Government post-date the applicants ’ constitutional complaint.", "191. As regards the decision of 13 December 2001, which does make reference to the remedies under sections 31 et seq. of the PPS Act, the Court considers it noteworthy that this decision was taken in respect of a legally undefined “motion” in a legal regime which preceded the current one, in which a complaint under Article 127 of the Constitution is considered to be an effective remedy for the purposes of Article 35 § 1 of the Convention, and which has existed under a constitutional amendment of 2001 with effect from 1 January 2002 (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 ‑ IX). In addition, in the situation complained of by that “motion”, before bringing an action with the Constitutional Court the complainant had exhausted no remedies at all. The Court considers that these differences distinguish the present case from that examined by the Constitutional Court on 13 December 2001.", "192. The Court therefore concludes that there was not sufficient support in the domestic law and practice at the relevant time for the conclusion that, for the purposes of Article 35 § 1 of the Convention, the applicants were required to resort to the remedies under sections 31 et seq. of the PPS Act.", "193. Moreover, and in any event, noting that the applicants in fact did address the Prosecutor General with a submission clearly aimed at ensuring that their case was handled with the necessary care and attention, that it is not disputed that the PPS has received this submission (see paragraph 99 above), and that nevertheless no attention at all appears to have been given to it, the Court finally concludes that there is no scope for rejecting the application under Article 35 § 1 of the Convention in connection with the remedies under sections 31 et seq. of the PPS Act.", "194. As regards the remedies under sections 31 et seq. of the PPS Act, and whether the present case bears any apparent resemblance to that of Zubaľ v. Slovakia (no. 44065/06, § 13 and 33, 9 November 2010), the Court points out that they differ in a number of aspects, including that the proceedings in the present case were aimed at investigating allegedly unlawful actions by private individuals and not by agents of the State; that the unlawful actions investigated in the present case were of a significantly greater gravity compared to the case of Zubaľ, the substantive complaint in which concerned solely Article 8 of the Convention. Further, as observed in the previous paragraph, the applicants in the present case in fact arguably did raise their arguments with the PPS prior to the introduction of their constitutional complaint.", "195. In reaching the conclusions in paragraphs 192 and 193 above, the Court has also taken into consideration the applicants ’ personal circumstances, the fact that rights as fundamental as those under Article 3 of the Convention (see below) are at stake, and that the Convention is intended to guarantee rights that are not theoretical or illusory but rights that are practical and effective.", "196. Lastly, the Court observes that its conclusions in this respect are in consonance mutatis mutandis with relevant international jurisprudence as cited above.", "197. The first limb of the Government ’ s preliminary objection therefore cannot be sustained.", "B. Protection of personal integrity", "198. In their observations on the admissibility and merits of the application, as regards the complaint under Article 14 of the Convention, the Government contended, in reliance on Article 35 § 1 of the Convention, that the applicants should have asserted their rights by means of an action for protection of personal integrity under Articles 11 et seq. of the Civil Code, but had not done so.", "199. The Court will deal with this matter below together with the merits of the Article 14 complaint.", "C. Other objections", "200. In their observations on the merits of the case, the Government added further objections of non ‑ exhaustion of domestic remedies. In particular, they submitted that the scope of the applicants ’ complaints to the Court was not identical to those asserted before the Constitutional Court; that the action for protection of personal integrity was a remedy to be exhausted in respect of all of the applicants ’ complaints, and that an action against the State for damages under section 78 of the Police Act (Law no. 171/1993 Coll., as amended) was an effective further remedy at the applicants ’ disposal. In that respect, the Government relied on the Court ’ s decision in (see Baláž and Others v. Slovakia (dec.), no. 9210/02, 28 November 2006 ).", "201. The Court reiterates that, pursuant to Rule 55 of the Rules of Court, “any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 and 54, as the case may be”.", "202. It has neither been argued by the Government, nor otherwise established by the Court that it was not possible for the Government to raise these new objections at the admissibility stage. They are accordingly estopped from raising them now ( for recapitulation of the applicable principles see, for example, Mooren v. Germany [GC], no. 113 64/03, §§ 57 ‑ 59, ECHR 2009-...).", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "203. Alleging that there had been systematic discrimination and racist attacks against Roma in Slovakia, combined with a general failure of the State authorities properly to investigate and prosecute such crimes, the applicants complained that they had been subjected to violence amounting to torture and inhuman and degrading treatment and that the Slovakian authorities had failed to carry out a prompt, impartial and effective official investigation into the case. On that account, the applicants alleged a violation of Article 3 of the Convention, which provides that:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Arguments of the parties", "204. The applicants objected that the DPI had only questioned three of some thirty suspected perpetrators and that they had only questioned them once, at the beginning of the investigation. The applicants also contended that none of the suspects had been re- interviewed after the identity exercise and despite the information it had established. Furthermore, the applicants suggested that the DPI had failed to take any new oral depositions after the second investigation had been opened pursuant to the District Prosecutor ’ s instructions.", "205. The Government responded by pointing out that except for Mr Ján Koky, Mr Martin Kočko and Mr Rastislav Koky the applicants had not been exposed to direct physical attack and that it had only been applicants Mr Martin Kočko and Mr Rastislav Koky who had sustained any bodily injuries, the actual extent of which was, however, debatable. They submitted that any mental distress caused to the remaining applicants and, in particular Ms Renáta Čonková (see paragraph 34 above) and Ms Justína Lacková (see paragraph 59 above) had not reached the Article 3 threshold.", "206. Moreover, and in any event, referring to the facts of the case, the Government opposed the applicants ’ factual assertions, emphasised that the investigation had been supervised by the PPS and also by the Ministry of the Interior, and considered that it had been carried out in full compliance with Convention principles.", "207. As to the applicants ’ specific objections, the Government submitted that P. S. and M. S. had been repeatedly questioned as suspects and that a number of investigative actions had been taken between 3 May and 26 June 2002. Furthermore, the investigation had not been terminated, but merely stayed, and further investigative actions had been and still could be taken with a view to further establishing the relevant facts, even after the second suspension.", "208. In so far as any racial motive might have been at the heart of the incident, the Government considered that the investigation had been adequately refocused as soon as allegations to that effect surfaced in the interviews of 20 March 2002. In that context, however, the Government pointed out that in the applicants ’ submissions immediately after the incident there had been no sign of any racial slurs on the part of the attackers, in view of which the Government considered remarkable the applicants ’ later detailed accounts of rather expressive alleged racial affronts.", "209. In reply, the applicants emphasised the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky and the humiliation, fear, stress and trauma sustained by all of them. These repercussions had been aggravated by the presence of women and children at the scene of the incident and by its blatantly racial and derogatory nature. Accordingly, in the applicants ’ submission, the seriousness of the treatment to which they had been exposed had reached the threshold of Article 3 of the Convention.", "210. As to the investigation itself, the applicants asserted that, although they had been in a particularity vulnerable position and it had accordingly been the responsibility of the State authorities to proceed proactively and on their own initiative, the authorities had made it necessary for the applicants to press for the investigation to proceed and that all the authorities had done was make an inquiry of a purely formal nature.", "B. The Court ’ s assessment", "1. General principles", "211. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining the core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, judgment of 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V).", "212. The Court also reiterates that the ill-treatment suffered must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 VII).", "213. It is further to be reiterated that, in general, actions incompatible with Article 3 of the Convention primarily incur the liability of a Contracting State if they were inflicted by persons holding an official position. However, the absence of any direct State responsibility for acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, also requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment administered by other private persons (see, for example, Milanović v. Serbia, no. 44614/07, § 83, 14 December 2010, and Denis Vasilyev v. Russia, no. 32704/04, § 98, 17 December 2009, with further references ).", "214. The Court further reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with Article 1 of the Convention, requires by implication that there should also be an effective official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII ). A positive obligation of this sort cannot, in principle, be considered to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII, and Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007 ).", "215. Even though the scope of the State ’ s procedural obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The investigation must be independent, impartial and subject to public scrutiny and that the competent authorities must act with diligence. Among other things, they must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, for example, Beganović v. Croatia, no. 46423/06, § 75, 25 June 2009, and Denis Vasilyev, cited above, § 100 with further references).", "2. Application of the general principles to the present case", "(a) Was there ill-treatment within the meaning of Article 3 of the Convention?", "216. The Court observes that, in the present case, it has not been disputed between the parties that a group of persons, some of whom were wearing balaclavas and armed with baseball bats and iron bars, entered the settlement where the applicants lived and engaged there in a disturbance involving direct physical assault on applicants Mr Ján Koky, Mr Martin Kočko and Mr Rastislav Koky, and causing bodily harm to the latter two. And neither has it been disputed that the attackers caused damage to the exterior of houses nos. 61, 67 and 69, forcibly entered houses nos. 61 and 67, and inflicted further damage to the furniture and equipment inside the latter.", "217. Where however there appears to be a degree of disagreement between the parties is the number of attackers, the extent and nature of the injuries to applicants Mr Martin Kočko and Mr Rastislav Koky, the extent of the damage inflicted upon the applicants ’ property, and the racial slurs uttered by the attackers.", "218. The number of the attackers varies between twelve, as in the official documentation (see paragraph 11 above), and fifty, as submitted by one of the witnesses (see paragraph 43 above).", "219. As regards the injuries suffered by applicant Mr Rastislav Koky, the applicants ’ submission points to a skull fracture, a cut to the left side of the back of the head, a crushed left arm, pressure injury to the left side of the back and bruises on the left knee, which necessitated hospitalisation of ten to fourteen days while the Government assert that he was hospitalised for no more than three to four days.", "220. In the case of applicant Mr Martin Kočko, the applicants ’ submission has been that he suffered a scraped elbow with a pressure injury on the right side, needing recovery time of seven to ten days, the Government submitting that his injuries did not merit a stay in hospital.", "221. In any event, there has not been any dispute that the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko required treatment in hospital, where they had to be taken by ambulance.", "222. The Court considers however that, in the assessment of the gravity of these injuries and any damage to property from the perspective of the threshold of Article 3 of the Convention, apart from the damage itself, regard has to be had to the overall context of the attack.", "223. From that perspective, the Court observes that the incident took place at night time and in a Roma settlement, and that it involved a group of partly armed and masked men who forcibly invaded the applicants ’ home and privacy; moreover, damage was caused to the applicants ’ property and there was a physical confrontation inside the applicants ’ home as well as outside.", "224. Furthermore, it has been submitted by the applicants and not rebutted by the authorities that the incident was marked by verbal threats and imprecations affronting the applicants ’ ethnic dignity.", "225. In view of the above-mentioned considerations, the Court concludes that there can be no doubt that the treatment the applicants were exposed to at the hands of private individuals fell within the purview of Article 3 of the Convention (see, for example, Beganović, cited above, § 68).", "(b) Was the investigation compatible with Article 3 of the Convention?", "226. The Court observes that the investigation under review was twice suspended, the former suspension being lifted and the latter being upheld. Investigative actions were thus taken in periods before its first suspension, between the two suspensions and after the second suspension. For the sake of clarity, the Court will review these periods and the investigative actions taken in them below, in turn.", "227. In the first segment, the police inspected the crime scene and, in particular, the three houses which had been damaged, the inspection having produced, inter alia, two biological traces. Applicant Mr Ján Koky was interviewed three times, applicant Mr Ján Koky Jr. once and the remaining applicants twice.", "228. The DPI also interviewed the waitress I. S. , her two sons P. S. and M. S. and the former ’ s girlfriend, E. N.", "229. Furthermore, three witnesses (Z.K., H.B. and J.K.) were interviewed twice and three others (T.K., M.K. and P.J.) once.", "230. In addition, an identity exercise took place and the Government submitted that transcripts of the incoming and outcoming mobile phone communications of I.S., M.S., P.S. and E.N. had been requested.", "231. Lastly, at this stage of the investigation, the DPI procured and obtained analysis of biological material from three people (B.B., V.P. and E.K.) with reference to biological traces from the crime scene.", "232. In the period between the two suspensions, the DPI re-interviewed P.S. and M.S. and interviewed the third son of I.S., F.S., and M.N., as well as nine other individuals (M.L., E.K., R.S., I.K., J.H., M.K., J.K., P.P. and B.P.), all of whom consented to provide biological material for the purposes of forensic analysis, the case file containing the results of the analysis in respect of M.S., P.S., F.S., M.N. and M.L. only.", "233. Finally, in the period after the second suspension, the DPI interviewed seven other individuals and had biological material analysed and compared with that from the crime scene in respect of three individuals (P.G., M.S. and M.A.).", "234. In view of the above, the Court observes that, in quantitative terms, the incident at the applicants ’ settlement was subject to structured and substantive investigation. However, it remains to be seen whether this investigation was indeed conducted in a determined manner and whether all was done that could reasonably have been expected to be done with a view to establishing the identity of the perpetrators and their motives and, as the case may be, to provide an adequate basis for their prosecution and punishment.", "235. In that regard, the Court observes that a crucial piece of evidentiary material secured at the crime scene appears to be the biological traces, which were later analysed and compared with biological material from the suspects. In particular, the Court observes that in the period between the two suspensions of the investigation biological material appears to have been taken for the purposes of such an analysis from the three sons of I.S. and ten other individuals. However, the results of these analyses, as submitted to the Court, pertain to the sons of I.S. and two others only, the results in respect of eight others being missing.", "236. Furthermore, the Court observes that in suspending the investigation for the second time the authorities appear to have placed emphasis on the incongruity between the initial deposition of applicant Mr Ján Koky that he did not know the identity of one of the five assailants who was not wearing a balaclava, and his later submission during the identity parade of 10 April 2002 to the effect that he had recognised and known that assailant. However, there does not appear to have been any action taken with a view to clarifying this controversy, such as, for example, a face ‑ to ‑ face interview ( konfrontácia ).", "237. Moreover, it has not escaped the Court ’ s attention that, although the Government submitted that records of the mobile communications of some of the involved had been requested with a view to further enlightenment of the facts, nothing has been submitted in terms of substantiation of this claim and there does not appear to have been any action taken by way of follow ‑ up.", "238. In addition, in so far as the Government may be understood as arguing that the investigation had not been terminated, but had merely been suspended, and that, accordingly, there has not been any formal obstacle to its continuation and completion, it has to be pointed out that there is no appearance that since 13 January 2003 (see paragraph 107 above) any action has been taken to support such a submission.", "239. The Court considers that these elements, coupled with the sensitive nature of the situation related to Roma in Slovakia at the relevant time (see, for example, Mižigárová v. Slovakia, no. 74832/01, §§ 57-63, 14 December 2010 and V.C. v. Slovakia, no. 18968/07, §§ 78-84 and 146-9, 8 November 2011 ), are sufficient for it to conclude that the authorities have not done all that could have been reasonably expected of them to investigate the incident, to establish the identity of those responsible and, as the case may be, to draw consequences. In reaching this conclusion, the Court has taken into account the particular importance for an investigation into an attack with racial overtones to be pursued with vigour and impartiality, having regard to the need to reassert continuously society ’ s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V).", "240. In conclusion, the Court finds that the investigation into the incident at the applicants ’ settlement cannot be considered as having been effective.", "Accordingly, there has been a violation of the procedural limb of Article 3 of the Convention.", "III. OTHER ALLEGED VIOLATIONS", "241. The applicants also alleged that the perpetrators ’ intrusion into their homes and destruction of their property, coupled with the authorities ’ failure to prevent and suppress racist violence and to carry out an effective investigation, amounted to a violation of their rights under Article 8 of the Convention and 1 of Protocol No. 1.", "242. On the basis of the same arguments, and in connection with their Roma ethnicity, the applicants further alleged a violation of Article 13, in conjunction with Articles 3 and 8 of the Convention, and of Article 14, in conjunction with Articles 3, 8 and 13 of the Convention.", "243. The Court observes first of all that, as for the substance, to a significant extent the essence of these complaints overlaps with that of the complaints presented and examined above under Article 3 of the Convention. The Court finds that there is no justification for a separate examination of the same matters under any of the other Convention provisions cited.", "244. Furthermore, in view of its findings in respect of the complaint under Article 3 of the Convention, the Court considers that it is unnecessary to examine the remaining complaints. This conclusion applies accordingly to the Government ’ s preliminary objection concerning the action for protection of personal integrity as a remedy to be used under Article 35 § 1 of the Convention in respect of the applicants ’ complaint under Article 14 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "245. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "246. The applicants claimed 85, 300 euros (EUR) by way of compensation in respect of pecuniary damage. This amount consisted of:", "- EUR 7, 000 in respect of damage caused to the house of applicant Mr Ján Koky;", "- EUR 833 in respect of earning opportunities lost by applicant Mr Ján Koky due to the time he had to dedicate to repairing his house;", "- EUR 667 in respect of damage caused to the house of applicant Ms Renáta Čonková; and", "- EUR 76, 700 in respect of present and future earnings lost by applicant Mr Martin Kočko on account of his injuries.", "247. The Government considered the claims overstated and unsubstantiated and pointed out that the investigation had not been terminated but merely suspended, which is why the applicants ’ claim could still be pursued at the domestic level.", "248. The Court observes first of all that the claim in respect of pecuniary damage has not been supported by any evidence. In addition, the Court finds no causal link between the damage alleged, which was essentially caused by non-State actors, and the violation found of the respondent State ’ s obligations under the Convention. The claim therefore has to be dismissed.", "2. Non- pecuniary damage", "249. Applicants Mr Martin Kočko and Mr Rastislav Koky claimed EUR 10, 000 each in respect of non-pecuniary damage, consisting of pain, frustration, helplessness and humiliation they had suffered as a result of the beatings they had been subjected to and the deficiencies of the investigation they complained of.", "250. Applicants Ms Žaneta Kokyová, Mr Milan Baláž, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justínka Lacková and Mr Ján Koky Jr. claimed EUR 5, 000 each in respect of non-pecuniary damage consisting of pain, frustration, helplessness, stress and humiliation and lasting harm and emotional and mental trauma due to the attack.", "251. Applicant Ms Renáta Kokyová claimed EUR 10, 000 in compensation for non-pecuniary damage on account of the circumstances involving her minor children being present at and witnessing the attack.", "252. The Government opposed these claims as overstated and submitted that, should the Court find a violation of the applicants ’ Convention rights, a more appropriate amount of damages should be paid.", "253. The Court observes that the violation found above is of a procedural nature and that it does not concern the underlying treatment suffered by the applicants at the hands of non-State actors. It considers that, as a result of the violation found, the applicants must have sustained damage of a non-pecuniary nature. Having regard to the amount of their claims and ruling on an equitable basis, it awards EUR 10 ,000 to each of the applicants Mr Martin Kočko and Mr Rastislav Koky and EUR 5 ,000 to each of the applicants Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justína Lacková, and Mr Ján Koky Jr., plus any tax that may be chargeable under that head.", "254. Noting that applicant Mr Ján Koky does not appear to have made any claim in respect of non-pecuniary damage, no ruling is made in that respect.", "B. Costs and expenses", "255. Lastly, the applicants claimed EUR 7,1 16 in respect of legal costs and EUR 62 in respect of administrative expenses incurred at the national level and before the Court.", "256. Relying on the Court ’ s judgment in the case of Young, James and Webster v. the United Kingdom ((former Article 50), 18 October 1982, § 15, Series A no. 55), the Government submitted that effective protection of human rights required human rights lawyers to be moderate in the fees that they charged to applicants; that only reasonably incurred legal costs should be compensated, and that the remainder of the claim should be dismissed.", "257. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.", "258. In the instant case, the Court observes that the applicants have not substantiated their claim with any relevant supporting documents establishing that they were under an obligation to pay for the costs of legal services and administrative expenses or that they have actually paid for them. Accordingly, the Court does not award any sum under this head (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI).", "C. Default interest", "259. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1988 and lives in Zagreb.", "A. Background to the case", "6. On 9 June 2013 Zagreb police ( Policijska uprava Zagrebačka, hereinafter “the police”) received an emergency call informing them that two men were attacking a man and a woman of Roma origin.", "7. The police immediately went to the scene, where they found the applicant and her partner Š. Š ., and another individual, I.M., with whom the applicant and her partner had had a verbal and physical conflict. They all had visible injuries. Soon afterwards, nearby, the police found and arrested another man, S.K., who had also been involved in the conflict.", "8. A preliminary report prepared by the police stated that the applicant and her partner had first had an argument with I.M. and S.K., during which S.K. had said “all Gypsies should be killed, we will exterminate you”. S.K. and I.M. had then attacked the applicant ’ s partner. The applicant and her partner had tried to escape but I.M. and S.K. had managed to catch them. S.K. had grabbed the applicant ’ s T-shirt and thrown her to the ground and then kicked her in the head. I.M. and S.K. had then continued beating the applicant ’ s partner, whose hands had been slashed with a knife by S.K..", "9. The police report stated that the applicant had a contusion that was visible below her left eye. The emergency medical services also attended the scene. A doctor recorded the applicant ’ s injuries as minor bodily injuries. On the same day the applicant was examined at a hospital, where her injuries were confirmed. She was told to rest and take painkillers.", "10. In connection with the incident, the police carried out an on-site inspection and a further assessment of the available material. The police also interviewed the applicant and her partner as well as the two assailants.", "11. In his police interview of 9 June 2013 the applicant ’ s partner Š.Š. stated that he was of Roma origin. On the day of the incident he had been at a flea market with the applicant when some passers-by had pushed her. He had realised that it had been two young men and he had told the applicant to ignore them because they were drunk (“wasted”). One of them had heard him and had turned to Š.Š., saying “Fuck your Gypsy mother, who is wasted? Who are you to tell me that? You should all be exterminated, I fuck your Gypsy mother” ( Jebem ti mater cigansku, tko je urokan, šta ti meni imaš govoriti, sve vas treba istrijebiti mamu vam cigansku jebem ). The other man had also turned towards Š.Š., saying “Fuck your mother, you should all be exterminated, I will kill you” ( Jebem vam majku, treba vas istrijebiti, ubit ću te ). Š.Š. stated that he had then panicked and had drawn a knife in order to scare them. However, that had created a further outburst of anger from the two men; one of them had taken out a knife and they had started chasing Š.Š. As Š.Š. was running away, the applicant had joined him and they had started running away together, looking for help. However, the attackers had managed to get hold of Š.Š. and had started beating him. At that point the applicant had tried to help and had also been hit. The two men had then continued beating Š.Š., saying that he was a Rom and should be killed.", "12. In her police interview of 9 June 2013 the applicant stated that she lived with Š.Š., with whom she had had two children. She confirmed Š.Š. ’ s version of events, saying that she had been pushed by the two men. After Š.Š. had reacted by saying that the men should be left alone because they were drunk, one of the two men had said, “Who is drunk? Fuck your Gypsy mother, you should all be exterminated, this will be a white Croatia again, you are garbage” ( Tko je pijan, jebem ti mater cigansku, vas treba istrijebiti, ovo će ponovno biti bijela Hrvatska, smeće jedno ). The applicant stated that after this the two men had started attacking Š.Š. She had tried to approach them to help Š.Š. but another woman had prevented her from doing so. However, at one point she had joined Š.Š. and they had started running away. The two men had then caught them and one of them had grabbed her by the T-shirt and said, “What are you going to do now you bitch? I will beat you now” ( Što ćeš sad kujo jedna, sad ću te prebiti ). He had then kicked her in the head. The two men had continued beating Š.Š., while she had run away and looked for help.", "13. In their interviews of 9 June 2013 the two assailants explained that the conflict had broken out because Š.Š. had offended them by saying that they were drunk. They denied the conflict had had any racial overtones.", "14. On 10 June 2013 the police lodged a criminal complaint against S.K. and I.M. with the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) for suspected commission of a hate crime, perpetrated by attempting to inflict grievous bodily harm on Š.Š., and motivated by the latter ’ s Roma origin. The applicant was mentioned in the criminal complaint as a witness.", "15. In the course of the investigation the Zagreb Municipal State Attorney ’ s Office questioned the two suspects and on 17 June and 3 1 July 2013 it instructed the police to conduct an identification procedure and formal questioning of the applicant and Š.Š. as witnesses.", "16. When questioned as a witness, Š.Š. repeated the statement he had given during the first police interview. He explained how, after the two men had pushed the applicant, one of them had turned towards him and uttered the insults related to his Roma origin (see paragraph 11 above). Š.Š. also stated that the applicant had been attacked after she had tried to help him when the two men were beating him up.", "17. During her questioning as a witness, the applicant repeated the statement she had given during the first police interview (see paragraph 12 above).", "B. The criminal proceedings concerning the attack on the applicant ’ s partner", "18. Upon completion of the investigation, on 30 October 2013 the Zagreb Municipal State Attorney ’ s Office indicted S.K. and I.M. in the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) on charges of making serious threats against Š.Š. and inflicting bodily injury on him, associated with a hate - crime element. The indictment also made reference to the attack on the applicant, suggesting that she had been kicked in the head while trying to save Š.Š. from the beating.", "19. The indictment was confirmed and the case was sent for trial on 21 March 2014.", "20. Meanwhile, on 31 October 2013 the Zagreb Municipal State Attorney ’ s Office informed Š.Š., as a victim in the proceedings, that an indictment had been lodged against S.K. and I.M. in connection with the attack on him. On 23 January 2014 the Zagreb Municipal State Attorney ’ s Office informed Š.Š. ’ s lawyer, L.K., of the institution of the proceedings in the Zagreb Municipal Criminal Court.", "21. At a hearing on 9 October 2014 the Zagreb Municipal Criminal Court questioned Š.Š. He repeated the statements given to the police. When asked whether the two assailants had said anything to the applicant related to Š.Š. ’ s racial origin, Š.Š. stated that she had told him something but he could no longer remember the details. He thought that she had said that the two assailants had told her that she was also Roma if she was with a Roma man. On the basis of an agreement between the parties, including Š.Š. ’ s representative, the applicant ’ s statement to the police was admitted in evidence and she was not questioned further at the trial.", "22. By a judgment of 13 October 2014 the Zagreb Municipal Criminal Court found S.K. and I.M. guilty as charged and sentenced them to one year and six months ’ imprisonment.", "C. The applicant ’ s criminal complaint", "23. In the meantime, on 29 July 2013 the applicant and her partner, represented by the lawyer L.K., had lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office against two unidentified suspects in connection with the incident of 9 June 2013 (see paragraphs 6-13 above). It was alleged in the criminal complaint that one of the suspects had first pushed the applicant and had then told her that she was a “bitch” ( kuja ) who had a relationship with a Roma man and that she would be beaten. She had been grabbed by the T-shirt and thrown to the ground, banging her head. The assailants had then continued beating Š.Š., threatening to kill him and the applicant. The criminal complaint also alleged that the assailants had stolen two mobile telephones from Š.Š. at the same time.", "24. The applicant ’ s representative tried to obtain the relevant information about the attackers from the police on the grounds that she needed the information in order to institute court proceedings. On 12 November 2013 the police informed the applicant ’ s representative that they had lodged a criminal complaint with the Zagreb Municipal State Attorney ’ s Office against two individuals in connection with a suspicion that they had committed the offence of attempted grievous bodily harm against the applicant and her partner, which, in the circumstances of the case, had been classified as a hate crime. The applicant ’ s representative was also informed that she should contact the Zagreb Municipal State Attorney ’ s Office for all further information.", "25. The applicant ’ s representative then informed the Zagreb Municipal State Attorney ’ s Office that the applicant and her partner would participate in the proceedings as victims and requested to be informed of all relevant procedural steps. On 17 February 2014 the applicant ’ s representative, invoking the domestic authorities ’ obligations under the Convention, requested information from the police and the Zagreb Municipal State Attorney ’ s Office about the criminal complaint lodged on behalf of the applicant.", "26. On 31 October 2014 the Zagreb Municipal State Attorney ’ s Office rejected the applicant ’ s criminal complaint. It examined the materials related to the investigation into the incident of 9 June 2013 and the criminal proceedings against S.K. and I.M. (see paragraphs 10-22 above). The relevant part of the decision reads:", "“In view of the above, it is established without any doubt that on the day in issue there was a physical conflict between S.K. and I.M. and Š.Š. whereby [S.K. and I.M.] caused bodily injury to and threatened Š.Š., and those offences were committed primarily because of hatred towards Roma.", "However, the statements of the witnesses Š.Š. and Maja Škorjanec show that [S.K. and I.M.] pushed her in the back, causing her to fall onto a [flea market] stall, not because she was the partner of Š.Š., who is of Roma origin, but because they were drunk and they accidentally pushed her towards the stalls.", "Furthermore, the medical documentation regarding Maja Škorjanec, as well as the records of the questioning of the witnesses Š.Š. and Maja Škorjanec and the statements of S.K. and I.M. given in their defence in the proceedings before the Zagreb Municipal Criminal Court, show that there is no doubt that S.K. kicked Maja Škorjanec in the left side of the face with the result that she sustained a minor bodily injury.", "Given that there is no indication that S.K. and I.M. inflicted injuries on Maja Škorjanec because of hatred towards Roma, as she is not of Roma origin, the criminal offence under Article 117 § 2 in conjunction with Article 87(21) of the Criminal Code has not been established.", "In particular, the injury which Maja Škorjanec sustained would, by its nature, suggest an injury within the meaning of Article 177 § 1 of the Criminal Code. ... As criminal proceedings for the offence under Article 177 § 1 of the Criminal Code are instituted on the basis of a private prosecution, the criminal complaint ... must be rejected ... on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor ’ s own motion.", "With regard to the criminal offence under Article 139 § 2 in conjunction with Article 87(21) of the Criminal Code, it should be pointed out that it is obvious that S.K. and I.M. threatened Š.Š. and not Maja Škorjanec ... Moreover, ... it does not follow from the record of Maja Škorjanec ’ s witness statement, which has been examined, that S.K. and I.M. threatened her, but rather Š.Š., and thus the criminal complaint ... should be rejected on the grounds that the impugned criminal offence is not an offence that is prosecuted of the prosecutor ’ s own motion .”", "27. The applicant was informed that she could take over the prosecution of S.K. and I.M. as a subsidiary prosecutor, as provided for under the relevant domestic law (see paragraph 30 below)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant domestic law", "1. Criminal Code", "28. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 125/2011, with further amendments) read as follows:", "Article 87", "“(21) Hate crime is a criminal offence committed on the grounds of race, skin colour, religion, national or ethnic origin, disability, sexual orientation or gender identity of another person. Such conduct shall be deemed an aggravating circumstance if a more severe punishment is not explicitly prescribed in this Code.”", "Bodily injury", "Article 117", "(1) Whoever inflicts bodily injury on another or impairs a person ’ s health shall be punished by a fine or by imprisonment not exceeding one year.", "(2) Whoever commits an act punishable under paragraph 1 motivated by hate ... shall be punished by imprisonment not exceeding three years.", "(3) A criminal offence punishable under paragraph 1 shall the subject of a private prosecution.”", "Threats", "Article 139", "“(2) Whoever makes a serious threat to kill or to inflict serious bodily injury on another ... shall be punished by a fine or by imprisonment not exceeding three years.", "...", "(4) ... [ A ] criminal offence punishable under paragraph (2) of this Article shall be prosecuted at the request [of the victim], save for an offence committed as a hate crime ... [which shall be prosecuted of the prosecutor ’ s own motion ].”", "2. Code of Criminal Procedure", "29. The relevant part of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013, 145/2013 and 152/2014) provides:", "Article 2", "“(1) Criminal proceedings shall only be instituted and conducted upon the request of a competent prosecutor. ...", "(2) In respect of criminal offences subject to public prosecution the competent official shall be the State Attorney, and in respect of criminal offences that may be prosecuted privately the competent prosecutor shall be a private prosecutor. ...", "...", "(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the victim may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.”", "30. Articles 55 to 63 regulate the rights and duties of private prosecutors and of victims acting as subsidiary prosecutors. A private prosecutor ( privatni tužitelj ) is a victim who brings a private prosecution in respect of criminal offences for which such a prosecution is expressly allowed by the Criminal Code (less serious offences). A victim acting as a subsidiary prosecutor ( oštećeni kao tužitelj ) is an individual taking over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute. When acting as a subsidiary prosecutor, the victim has all the rights in the proceedings which the State Attorney ’ s Office would have as a public prosecuting authority, save for those vested in the State Attorney ’ s Office as a State body. Under Article 58 § 2, the State Attorney ’ s Office is authorised, on a discretionary basis, to take over a prosecution from a subsidiary prosecutor at any point before the end of the trial.", "B. Relevant domestic practice and materials concerning discrimination", "31. The relevant domestic practice and other materials concerning discrimination in general are set out in the case of Guberina v. Croatia (no. 23682/13, §§ 27 and 29-31, ECHR 2016).", "C. Other relevant domestic practice", "32. The list published on the Constitutional Court ’ s Internet site (available at http://www.usud.hr ) of various domestic authorities ’ decisions which are not amenable to review on the basis of individual constitutional complaints includes a decision rejecting a victim ’ s criminal complaint. Reference is made to the following case-law of the Constitutional Court: U-III-1523/2000, U-III-1122/2007, U-III-2411/2012 and U-III-1488/2014.", "III. RELEVANT INTERNATIONAL MATERIALS", "33. In 2009 the Organization for Security and Cooperation in Europe (OSCE) published “Hate Crime Laws: A Practical Guide” as a tool to assist States in implementing their commitment to “ consider enacting or strengthening, where appropriate, legislation that prohibits discrimination based on, or incitement to hate crimes”. The relevant part of the Guide (pp. 50-51) reads:", "“The United States has a well-documented pattern of crimes directed at interracial couples and families. Similarly, a study in Finland found that one-fifth of hate crime cases involved victims who were ethnically Finnish “in the company of a person of foreign extraction” or whose ‘ spouse was of foreign extraction. ’", "...", "Persons affiliated or associated with a group that shares a protected characteristic can easily be overlooked as a category to include in hate crime laws. Therefore, hate crime laws should also penalize those who attack others on the basis of their association with members of protected groups.”", "34. In the further publication entitled “ Preventing and responding to hate crimes: A resource guide for NGOs in the OSCE region” (2009) the OSCE stressed the following (pp. 22-23):", "“The Characteristics of the Victim and the Perpetrator", "...", "Characteristics of a victim that may be indicators of hate crime include:", "• The victim is identifiable as “different” from the attackers and, often, from the majority community, by such factors as appearance, dress, language or religion;", "...", "• The victim was in the company of or married to a member of a minority group.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 TAKEN IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "35. The applicant complained of a failure by the domestic authorities to effectively discharge their positive obligations in relation to a racially motivated act of violence against her. She relied on Articles 3, 8 and 14 of the Convention.", "36. The Court finds that the domestic authorities ’ obligations related to the incident at issue may arise under all the Articles of the Convention relied upon by the applicant, namely Articles 3 and 8 taken alone and in conjunction with Article 14. However, in view of the injuries which the applicant sustained (see paragraph 9 above) and the presumed racially motivated violence against her, the Court considers that the applicant ’ s complaint should be examined under Article 3 (see Abdu v. Bulgaria, no. 26827/08, § 39, 11 March 2014).", "37. Further, the authorities ’ duty to investigate the existence of a possible link between a discriminatory motive and an act of violence can fall under the procedural aspect of Article 3 of the Convention, but may also be seen to form part of the authorities ’ positive responsibilities under Article 14 to secure the fundamental values enshrined in Article 3 without discrimination. Owing to the interplay of Articles 3 and 14 of the Convention in the context of violence motivated by discrimination, issues such as those raised by the present case may fall to be examined under Article 3 alone, with no separate issue arising under Article 14, or may require examination of Article 3 in conjunction with Article 14. This is a question to be decided in each case depending on the facts and the nature of the allegations made (see, for example, B.S. v. Spain, no. 47159/08, § 59, 24 July 2012).", "38. In the present case, in view of the applicant ’ s allegations that the violence against her had racial overtones which were completely overlooked by the authorities in the investigation, the Court finds that the most appropriate way to proceed would be to subject the applicant ’ s complaints to a simultaneous examination under Article 3 taken in conjunction with Article 14 (compare Abdu, cited above, § 46).", "39. These provisions read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "1. The parties ’ arguments", "40. The Government argued that there had been no reason for the applicant to lodge her application with the Court while the relevant proceedings were still pending at the domestic level. They also argued that the applicant had failed to exhaust all the available remedies, in particular the mechanisms of a private or subsidiary prosecution, a civil action for damages and protection from discrimination or a constitutional complaint before the Constitutional Court.", "41. The applicant contended that she had properly exhausted the available domestic remedies and had brought her application to the Court when it had become evident that there would be no criminal prosecution in connection with the attack on her. She also considered that a constitutional complaint was not an effective domestic remedy that needed to be used.", "2. The Court ’ s assessment", "42. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015).", "43. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72).", "44. The Court further reiterates that the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court ( see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). However, the Court also accepts that the last stage of the exhaustion of domestic remedies may be reached shortly after the lodging of the application but before the Court determines the issue of admissibility (see, for instance, Zalyan and Others v. Armenia, nos. 36894/04 and 3521/07, § 238, 17 March 2016, with further references).", "45. In the light of the above principles, the Court notes, firstly, that the applicant lodged her application with the Court on 20 March 2014 and that her case was finally determined at the domestic level on 31 October 2014 when the competent State Attorney ’ s Office dismissed her criminal complaint (see paragraph 26 above). In those circumstances, there are no grounds for dismissing the applicant ’ s complaint under Articles 3 and 14 of the Convention for failure to comply with the requirements of Article 35 § 1 of the Convention on the basis of the first objection raised by the Government (see, for instance, Milić and Nikezić v. Montenegro, nos. 54999/10 and 10609/11, § 74, 28 April 2015, and Zalyan and Others, cited above, §§ 238-239).", "46. With regard to the Government ’ s objection that the applicant should have pursued a subsidiary or private prosecution, the Court notes that it has already held that where an applicant has lodged a criminal complaint concerning acts of violence and alleging discriminatory motives behind the attack, that person is not required to pursue the matter by instituting a subsidiary prosecution (see R.B. v. Hungary, no. 64602/12, § 62, 12 April 2016 ) or private prosecution, which would not cover the alleged racist insults or the racist motives for the violence against the applicant, which are a fundamental part of the applicant ’ s complaint (see Abdu, cited above, § 51). This is particularly true where domestic law provides for public criminal prosecution of violent offences with a hate - crime element, as it does in the present case (see paragraph 28 above).", "47. Further, with regard to the possibility of lodging a civil action for damages, the Court has already held that such an action would not fulfil the State ’ s procedural obligation under Article 3 in a case of assault (see Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009, and Abdu, cited above, § 51). The same is true for a civil action for protection from discrimination, particularly given that the applicant had already raised her discrimination complaint in the criminal complaint she lodged with the competent State Attorney ’ s Office (see paragraph 23 above, and compare Guberina, cited above, §§ 49-50, and M.C. and A.C. v. Romania, no. 12060/12, § 63, 12 April 2016).", "48. Lastly, with regard to the Government ’ s objection that the applicant should have lodged a constitutional complaint, the Court notes, in view of the practice of the Constitutional Court (see paragraph 32 above), that it was not necessary for the applicant to use that remedy before lodging her application with the Court.", "49. In view of the above considerations, the Court rejects the Government ’ s objections. It notes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "50. The applicant submitted that it had been clear from the evidence that she had been the victim of a hate crime related to her relationship with Š.Š., who was of Roma origin. She argued that the domestic framework was deficient given that the relevant domestic law, as interpreted by the State Attorney ’ s Office, did not provide protection for individuals who were victims of discriminatory violence by association with another person having the relevant characteristic. Moreover, she submitted that the competent domestic authorities had not paid due attention to the racial overtones implicit in the attack on her and had failed to prosecute the attackers for a hate crime merely because she had not been of Roma origin herself. That, in the applicant ’ s view, had run counter to the domestic authorities ’ obligations under the Convention.", "51. The Government argued that the police had diligently investigated all the circumstances of the attack on the applicant and Š.Š. In their view, it had been unequivocally established that Š.Š. had been attacked because of his Roma origin and that he had been the exclusive target of the attack. The applicant, on the other hand, had been a collateral victim and had been attacked only after she had tried to help Š.Š. However, the attackers had not continued to chase her after she had escaped but had continued beating Š.Š. instead. In that connection, the Government stressed that it remained open for the applicant to bring private prosecutions against S.K. and I.M. for the attack on her. The Government also pointed out that during the proceedings before the domestic authorities the applicant had never suggested that she had been the victim of a hate crime related to her partner ’ s Roma origin. In those circumstances, the Government submitted that the domestic authorities had done everything which could reasonably be expected of them to elucidate the circumstances of the attack on the applicant.", "2. The Court ’ s assessment", "(a ) General principles", "52. The Court refers to the well-established principles of its case-law on Articles 3 and 14 of the Convention concerning the State ’ s obligations when confronted with cases of violent incidents triggered by suspected racist attitudes, in particular related to the Roma origin of a victim (see Šečić v. Croatia, no. 40116/02, §§ 50-54 and 66-67, 31 May 2007; Abdu, cited above, §§ 40-46; Balázs v. Hungary, no. 15529/12, §§ 47-54, 20 October 2015; and R.B. v. Hungary, cited above, §§ 39-45 ).", "53. In particular, the Court would reiterate that when investigating violent incidents triggered by suspected racist attitudes, the State authorities are required to take all reasonable action to ascertain whether there were racist motives and to establish whether feelings of hatred or prejudices based on a person ’ s ethnic origin played a role in the events. Treating racially motivated violence and brutality on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights. A failure to make a distinction in the way in which situations which are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Abdu, cited above, § 44).", "54. In practice it is, admittedly, often extremely difficult to prove a racist motive. The obligation on the respondent State to investigate possible racist overtones to an act of violence is an obligation regarding the means employed rather than an obligation to achieve a specific result. The authorities must take all reasonable measures, having regard to the circumstances of the case ( ibid., § 45, with further references),", "55. In this connection it should be reiterated that not only acts based solely on a victim ’ s characteristics can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude towards the group to which the victim belongs (see Balázs, cited above, § 70). Moreover, Article 14 of the Convention, in the light of its objective and the nature of the rights which it seeks to safeguard, also covers instances in which an individual is treated less favourably on the basis of another person ’ s status or protected characteristics (see Guberina, cited above, § 78 ).", "56. It accordingly follows that the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence, which is part of the responsibility incumbent on States under Article 3 taken in conjunction with Article 14 of the Convention, concerns not only acts of violence based on a victim ’ s actual or perceived personal status or characteristics but also acts of violence based on a victim ’ s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic.", "57. In such instances, the authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence. Moreover, where there are arguable grounds for believing that an individual has suffered acts contrary to Article 3, the national authorities are required to conduct an effective official investigation to establish the facts of the case and identify and, if appropriate, punish those responsible (see, for instance, Balázs, cited above, §§ 51-52, with further references).", "(b) Application of those principles to the present case", "58. The applicant argued that the existing domestic legal framework concerning racially motivated acts of violence, as interpreted by the relevant State Attorney ’ s Office, was deficient and that the manner in which the relevant domestic authorities had responded to her complaint of racially motivated violence had been defective to the point of constituting a violation of the State ’ s positive obligations under the Convention. The Court will therefore first assess the existence and adequacy of the legal mechanisms for the protection of people from violence motivated by discriminatory attitudes in the domestic legal order and then the manner of their application in practice (see Beganović, cited above, §§ 72 and 74; Valiulienė v. Lithuania, no. 33234/07, §§ 78-79, 26 March 2013; and Abdu, cited above, § 47).", "59. With regard to the domestic legal framework, the Court notes that its case-law consistently and clearly establishes that Article 3 of the Convention requires the implementation of adequate criminal-law mechanisms once the Court has found that the level of severity of violence inflicted by private individuals attracts protection under that provision (see Beganović, cited above, 69 ). In the Court ’ s view, those principles apply a fortiori in cases of violence motivated by racial discrimination (see paragraphs 36 and 46 above).", "60. The Croatian legal framework in this context includes a special provision for hate crime as an aggravating form of other criminal offences. In particular, under Article 87 § 21 of the Criminal Code any offence committed against another on grounds of race is to be treated as an aggravating circumstance if a more serious punishment for hate crime is not already explicitly prescribed in the Criminal Code (see paragraph 28 above).", "61. In so far as relevant for the case at issue, it should be noted that hate crime is explicitly described as an aggravating form of the offence of causing bodily injury under Article 117 § 2 of the Criminal Code. Moreover, both the offence of causing bodily injury and that of making serious threats are liable to public criminal prosecution whenever a hate - crime element is arguably involved. In this connection the Court also notes that it is sufficient under the Criminal Code for a hate crime to be committed on the grounds of or out of racial hatred, without requiring the victim to personally possess the protected characteristic or status (see paragraph 28 above).", "62. In view of the above, the Court considers that the Croatian legal system provided adequate legal mechanisms to afford an acceptable level of protection to the applicant in the circumstances. The Court must therefore examine whether the manner in which the criminal-law mechanisms were implemented in the instant case was defective to the point of constituting a violation of the respondent State ’ s obligations under the Convention.", "63. The Court notes that following the report about the attack on the applicant and her partner, the police immediately responded by going to the scene and conducted a preliminary investigation on the basis of a suspected attack on a couple motivated by hatred against people of Roma origin (see paragraphs 6-8 above).", "64. In the course of the investigation the police interviewed the applicant, her partner and the two assailants. While the two assailants denied any racial overtones to the conflict (see paragraph 13 above), the applicant and her partner provided information to the contrary. The applicant ’ s partner Š.Š. explained how the two men, after his remark that they were drunk, had turned on him and started uttering various insults related to his Roma origin, after which they had attacked him. He also explained that the applicant had been attacked when she had run to his aid (see paragraph 11 above). For her part, the applicant confirmed Š.Š. ’ s version of events (see paragraph 12 above). Their statements thus suggested that the applicant had fallen victim to a racially motivated attack owing to the fact that she had been in the company of Š.Š. (see paragraphs 21 and 23 above).", "65. The Court would reiterate that where any evidence of racist verbal abuse comes to light in an investigation, it must be checked and, if confirmed, a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives (see Balázs, cited above, § 61). Moreover, the general context of the attack has to be taken into account. As explained in the Court ’ s case-law, the domestic authorities should be mindful that perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude (see paragraph 55 above).", "66. Likewise, it should be reiterated that under the Convention the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence exists not only with regard to acts of violence based on the victim ’ s actual or perceived personal status or characteristics but also with regard to acts of violence based on the victim ’ s actual or perceived association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic (see paragraph 56 above). Indeed, some hate - crime victims are chosen not because they possess a particular characteristic but because of their association with another person who actually or presumably possesses the relevant characteristic. This connection may take the form of the victim ’ s membership of or association with a particular group, or the victim ’ s actual or perceived affiliation with a member of a particular group through, for instance, a personal relationship, friendship or marriage (see paragraphs 3 3- 3 4 above).", "67. In the case in issue, the prosecuting authorities confined their investigation and analysis to the hate - crime element of the violent attack against Š.Š. They failed to carry out a thorough assessment of the relevant situational factors and the link between the applicant ’ s relationship with Š.Š. and the racist motive for the attack on them. Indeed, the police lodged a criminal complaint only with regard to the attack on Š.Š., treating the applicant merely as a witness, although she had also sustained injuries in the course of the same attack while in his company (see paragraphs 14 and 34 above).", "68. The Court further notes that the applicant made specific allegations of racially motivated violence directed against her in her criminal complaint of 29 July 2013 (see paragraph 23 above). The Court also notes that the issue was raised in the course of the criminal proceedings against S.K. and I.M., where further information came to light suggesting that the applicant had been a victim of racially motivated violence (see paragraph 21 above). However, in its assessment of the available information concerning the violent attack on the applicant the State Attorney ’ s Office emphasised the fact that the applicant was not of Roma origin herself and could therefore not be considered a victim of a hate crime. It did so without conducting further interviews or obtaining the relevant information related to the applicant ’ s specific complaints (see paragraph 26 above).", "69. The Court reiterates that its role is not to rule on the application of domestic law or to adjudicate on the individual guilt of persons charged with offences, but to review whether and to what extent the competent authorities, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by the procedural obligations under the Convention (see Abdu, cited above, § 33). Likewise, aware of its subsidiary role, the Court is mindful that it is prevented from substituting its own assessment of the facts for that of the national authorities.", "70. Nevertheless, the Court cannot but note that the prosecuting authorities ’ insistence on the fact that the applicant herself was not of Roma origin and their failure to identify whether she was perceived by the attackers as being of Roma origin herself, as well as their failure to take into account and establish the link between the racist motive for the attack and the applicant ’ s association with Š.Š., resulted in a deficient assessment of the circumstances of the case (see paragraphs 52-57 and 68 above).", "71. That impaired the proper investigation by the domestic authorities of the applicant ’ s allegations of a racially motivated act of violence against her to an extent irreconcilable with the State ’ s obligation to take all reasonable steps to uncover any possible racist motives behind the incident (compare Balázs, cited above, § 75). In view of the failure of the State Attorney ’ s Office to subject the case to the necessary scrutiny, as required under the Convention, the Court cannot but conclude that the domestic authorities failed to comply with their obligations under the Convention when they rejected the applicant ’ s criminal complaint of a racially motivated violent attack on her without conducting a further investigation in that respect prior to their decision.", "72. This is sufficient for the Court to conclude that there has been a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "73. The applicant complained that by not responding to her criminal complaint the domestic authorities had prevented her from obtaining the attackers ’ personal details, without which it had been impossible for her to bring a civil action for damages. She relied on Article 6 of the Convention.", "74. The Government contested that argument.", "75. The Court notes that by informing the applicant ’ s partner of the indictment that had been lodged against S.K. and I.M. in the relevant criminal court and then also informing her legal representative of the matter (see paragraph 20 above), the State Attorney ’ s Office gave the applicant sufficient information about the personal details of the two assailants to allow her to institute a civil action for damages against them. Moreover, she was informed of their personal details in the course of the criminal proceedings concerning their attack on her partner, who was represented by the same lawyer as later represented the applicant (see paragraph 21 above). She was also informed of the personal details of the assailants in the decision rejecting her criminal complaint (see paragraph 26 above).", "76. It therefore follows that the applicant ’ s complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "77. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "78. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.", "79. The Government considered the applicant ’ s claim excessive, unfounded and unsubstantiated.", "80. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 12,5 00 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.", "B. Costs and expenses", "81. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.", "82. The Government considered this claim unfounded and unsubstantiated.", "83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of 2,200 EUR covering costs under all heads plus any tax that may be chargeable to the applicant.", "C. Default interest", "84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1952 and lives in Trud, in the Plovdiv region. She is a Bulgarian citizen and belongs to the Roma ethnocultural minority.", "6. In 2005, on an undisclosed date, the Plovdiv District Prosecutor ’ s Office opened criminal proceedings against the applicant for fraud; she was reproached in particular for the fraudulent appropriation of the sum of 2,600 Bulgarian levs (approximately 1,300 euros) and the jewels of a certain G.S. On 23 December 2005, she was sentenced to trial in the District Court of Plovdiv.", "7. During the proceedings, the District Court heard the prosecution and defence witnesses, gathering documentary evidence and the conclusions of experts. The concerned party claimed that on the day of the events in question, 12 July 2005, she was in Zlatitsa, a town about 100 kilometres from the victim ’ s village, and that she had consulted a doctor because she had felt ill. She submitted a doctor ’ s medical certificate and had her son ’ s companion interviewed. In her defence speech, her lawyer emphasised that the police had not found significant amounts of money or jewellery at the applicant ’ s home. She challenged the reliability of the identity parade carried out at the preliminary stages of investigation and drew the court ’ s attention to the contradictions in the evidence of the prosecution ’ s witnesses as to the age and the physical appearance of the applicant who had defrauded the victim. The lawyer insisted that the first of three prosecution witnesses, a neighbour, had seen a woman of Roma origin approaching and speaking with the victim, but that she was not in a position to recognize the individual. In addition, during the identity parades and in the courtroom, the second witness, another neighbour, had stated that she was not sure whether the applicant was the woman who had defrauded the victim. As for the third of these witnesses, the counsel for the applicant noted that she was the granddaughter of the victim and invited the court not to grant credit to her statements. The lawyer admitted that the applicant had previously been sentenced for theft. However, her last conviction was more than twenty years old.", "8. In her defence speech, the district prosecutor invited the court to recognize the applicant guilty of the alleged facts: she had been recognized by the victim and two witnesses against her. The testimony of a third witness corroborated the conclusion that the concerned party had fraudulently taken the money and jewels of the victim. She invited the court not to grant credit to the evidence of the defence ’ s witness, who was among those close to the applicant. In view of the preponderance of mitigating circumstances in the present case and of the applicant ’ s state of health, the prosecutor argued in favour of a suspended conviction and a sentence close to the minimum provided for by the Criminal Code.", "9. On 29 May 2006, the Plovdiv District Court, consisting of a professional judge and of two lay assessors (съдебни заседатели), pronounced its judgment in which it found the applicant guilty of defrauding G.S. and sentenced her to three years of imprisonment. The reasons for the judgment were issued to the applicant in June 2006 and bore the signature of the professional judge who had presided over the District Court ’ s trial. At the beginning of these reasons, among other personal information used to identify the applicant, such as her place and date of birth, her home address and her unique identification number, her Roma origin was also listed. In the fact-finding portion of the reasoning, the court found that the accused had entered the victim ’ s home fraudulently, suggesting to her that her family had been struck by black magic which she could dispel. Taking advantage of G.S. ’ s credulity, she took the money and jewellery that she then kept in her home. The court based these findings on the statements of the prosecution witnesses which it found to be consistent with the other evidence gathered. It did not retain the statements of the defence witness who had explained that the applicant had visited relatives in Zlatitsa in July 2005 and that she had consulted a doctor there. The court refused to take into account the medical certificate presented by the applicant: even if it was dated 12 July 2005, there was no date after its reference number, as is normally the case. Similarly, the doctor had affixed his stamp on the document, but it lacked the stamp of the hospital. The court found that the sentence should be three years ’ imprisonment because of the balance between the aggravating and mitigating circumstances in this case. Among the aggravating circumstances, it mentioned the negative data on the applicant ’ s personality, previous convictions, the absence of a stable job, the gravity of the alleged acts, the high amount of money taken by the applicant, and the operating mode thereof. The court held as a mitigating circumstance the advanced age of the applicant.", "10. The District Court refused to suspend the execution of the three-year sentence for the following reasons:", "“The decision to impose an effective sentence of imprisonment in this case arises from the legal obligation for the court (Article 66 of the Penal Code) to determine whether suspension of the sentence ’ s execution is compatible with the objectives of the penal sanction. The court considers that this is not the case in this case, especially as there is a feeling of impunity, especially among members of minority groups, for whom a conditional sentence is not a conviction (this concerns general prevention). Moreover, this conclusion is equally valid with regard to special prevention – the execution of the sentence imposed will prevent [the applicant] from committing other criminal offenses and [will enable her] to correct her behaviour and to rehabilitate herself. ”", "11. The applicant appealed against this judgment. She considered that the court based its findings on the statements of the prosecution ’ s witnesses, who did not prove her implication in the acts alleged against her, and that the lower court refused to obtain evidence corroborating the defence ’ s case. At her request, the Plovdiv Regional Court questioned the doctor who issued the medical certificate, as well as the nurse who worked with him. Both confirmed that the applicant had come to the doctor ’ s office on the morning of 12 July 2005 for a matter of high blood pressure. The examination was finished after twenty minutes. In her plea, the applicant ’ s lawyer reiterated her arguments before the first-instance court concerning the credibility of the prosecution ’ s witnesses ’ statements and the accountant ’ s alibi (see paragraph 7 above) and argued that the lower court had taken into account the applicant ’ s ethnicity to justify its decision. She invited the regional court to acquit her client or to give her no more than a suspended sentence.", "12. On 16 October 2006, the Plovdiv Regional Court upheld the judgment of the first-instance court. It upheld again the statements of the prosecution ’ s witnesses, which it considered consistent with the other evidence. It did not uphold the statements of the applicant ’ s son ’ s companion, believing that they were not sufficiently specific. It found that the applicant ’ s allegation that she had, on 12 July 2005, consulted a doctor in Zlatitsa was well established. However, in the absence of any indication as to the exact time of the medical visit, the court found that, given the length of the consultation and the distance between the town of Zlatitsa and the victim ’ s village, in theory as well as in practice, the interested party would have had the opportunity to go to G.S. ’ s home at the time indicated by the witnesses, namely around noon on the same day. In its part on the appropriateness of suspending the execution of the sentence, the judgment of the Regional Court reads as follows:", "“ The appeal court shares the reasons for the inapplicability of a suspended sentence with respect to Paraskeva Todorova. It agrees wholeheartedly with the opinion of the initial court that a possible suspension of execution could not contribute to the accomplishment of the objectives of general and specific prevention because, on one hand, it would have created a feeling of impunity, and on the other, it would not have prevented [the applicant] from resuming her wrongful behaviour, and the sentence would not have had a deterring effect on other members of society.”", "This judgment was not subject to appeal in ordinary cassation.", "13. On 6 November 2006, the applicant lodged an appeal with the Supreme Court of Cassation provided for by Article 422, paragraph 1, point 5 of the Code of Criminal Procedure. She claimed that her conviction was unfair, discriminatory, and contrary to domestic law and to international conventions ratified by Bulgaria, including Article 6 § 1 of the Convention. The applicant requested the High Court to order the re-examination of the case or to potentially modify the judgment of the Regional Court.", "14. In her defence brief submitted to the High Court, the applicant ’ s counsel challenged in particular the courts ’ reasoning concerning sentencing and the refusal to suspend the execution of the sentence. It argued that the file contained no information which could lead to the conclusion that there was negative information on the applicant ’ s personality. The applicant had received a pardon after her prior convictions, which obligated the courts to no longer consider her criminal record as an aggravating circumstance. Given the unemployment rate in the country and the age of the applicant, the lack of a stable job could not be considered as such a circumstance. As for the gravity of the events, this was part of the very characteristics of the penal infraction for which the conviction had been made, which prevented the courts from taking up the same argument for also arguing it as an aggravating circumstance. Moreover, according to the consistent legal precedents of the domestic courts, the amount of the money appropriated was not significant. The decision of the courts not to suspend the execution of the applicant ’ s sentence was motivated by her membership with a minority ethnic group. The applicant ’ s counsel argued that this same motivation demonstrated the bias of the court that had sentenced her client.", "15. In a judgment on 5 June 2007, the Supreme Court of Cassation dismissed the applicant ’ s appeal. The High Court found that the lower courts had correctly established the facts on the bases of the relevant evidence gathered during the criminal investigation and in court. They had correctly characterized the established events as fraud and determined the length of the sentence imposed by taking into account the seriousness of the events and the personality of the applicant in light of previous criminal infractions. The Supreme Court of Cassation admitted that the formal conditions for a sentence suspension had been met, particularly in view of the fact that the applicant had been rehabilitated. However, it found that the conviction of an effective sentence was justified for the following reasons:", "“ It has been rightly admitted [by the lower courts] that the execution of the sentence was indispensable and justified from society ’ s point of view. Thus, the accused will be deprived of the opportunity to resume her wrongful behaviour and [the penal sanction] will have a deterring effect on other members of society .”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTISE", "A. The principle of equality before the law", "16. Article 6, paragraph 2 of the Constitution proclaims the principle of equality of citizens before the law and prohibits any restriction of their rights or privileges based on, among others, race or ethnicity. Article 11, paragraph 2 of the Code of Criminal Procedure of 2006 (hereinafter the CCP), obligates the courts, the public prosecutor ’ s department, and the bodies responsible for the criminal investigation to apply the law uniformly to all citizens.", "B. The Penal Code", "17. According to Article 66 of the Penal Code, the court may suspend enforcement of the sentence of imprisonment imposed if the term of imprisonment does not exceed three years, if the concerned party has not already been convicted to a term of imprisonment for a criminal offense prosecuted ex officio and if the court finds that the objectives of the penal sanction can be attained without the imposition of an effective penalty. The existence of a previous conviction does not preclude, in principle, the application of Article 66 of the Penal Code, if the party in question has benefited from rehabilitation (see, for example, Решение № 13 от 25.01.2001г. на ВКС по н.д. № 700/2000г., ІІ н.о. ).", "18. According to Article 36 of the Penal Code, the imposition of a criminal penalty has the following objectives: to correct the behaviour of the convicted person and encourage him or her to respect the laws and virtue; to prevent the possibility for him or her to commit other criminal offenses; to prevent criminal offenses by other members of society and encourage in them respect for the law and good virtues.", "C. Appeal against final judgements rendered in the appeal court", "19. According to Article 346 of the CCP, the judgments of regional courts rendered in the appeal court, when they confirm the judgments of initial courts, are not susceptible to ordinary appeal.", "20. Nevertheless, these judgments can be criticised for the same deficiencies which justify appeal in cassation (non-observance of substantive or procedural legislation or imposition of an unfair penalty) before the Supreme Court of Cassation by the appeal provided by Article 422, paragraph 1, point 5 of the CCP. This plea, which the legislature regulated in the chapter of the CCP dedicated to the reopening of criminal proceedings, can be introduced by the sentenced person, through the court of first instance (Article 422, paragraph 2) within a period of six months from the date of the judgment of the appeal court (Article 421, paragraph 3 of the CCP).", "21. If the Supreme Court of Cassation finds any of the aforementioned breaches of substantive or procedural rules, it is bound to overturn the judgment of the lower court and may remit the case for reconsideration, terminate the criminal proceedings, acquit the person concerned or amend the judgment under appeal ( Article 425, paragraph 1 of the CCP).", "D. The reopening of proceedings in criminal courts following a judgment of the European Court of Human Rights", "22. In view of Articles 420, paragraph 1, Article 421, paragraph 2 and Article 422, paragraph 1, point 4 of the CCP, the public prosecutor is obligated to request the reopening of the criminal proceedings of a convicted person within one month of the judgement of the European Court of Human Rights finding a violation of the Convention, if the violation found is of particular importance for the outcome of the criminal proceedings. The body competent to decide in this case is the Supreme Court of Cassation.", "IN LAW", "I. ON THE ALLEGED VIOLATIONS OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION", "23. The applicant alleges that the refusal of the domestic courts to suspend her execution of her sentence was based on her Roma ethnicity. She considers that this approach of the courts, which she describes as openly discriminatory, undermined her right to a fair trial and that the reasoning of the District Court ’ s decision clearly demonstrates the judge ’ s bias. The complaint also denounces the domestic law ’ s inability to remedy this situation. She invokes articles Article 6 § 1, 13 et 14 of the Convention. The Court considers it appropriate to examine the applicant ’ s allegations under Article 14 in conjunction with Article 6 § 1. The relevant parts of those articles of the Convention read as follows:", "Article 14", "“ The enjoyment of the rights and freedoms recognized in the ( ... ) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, origin, political opinions or any other opinions, national or social origin, association with a national minority, property, birth, or any other status.”", "Article 6 § 1", "“Everyone is entitled to a fair and public hearing ( ... ), by an independent and impartial tribunal established by law ( ... ) which will determine ( ... ) any criminal charge against him or her ( ... ) ”.", "A. On admissibility", "24. The Court observes that the applicant introduced her request on 9 August 2007, less than six months after the judgment on 5 June 2007 of the Supreme Court of Cassation, but more than six months after the judgment of 16 October 2006 of the Regional Court of Plovdiv. It further observes that, according to domestic legislation, the judgment of the Regional Court was final (see paragraph 19 above) and that the decision of 5 June 2007 of the Supreme Court of Cassation was not delivered in the context of an ordinary cassation procedure. In these circumstances, the Court considers the main question which arises as to the admissibility of the present application to be whether the applicant complied with the six-month time-limit set forth by Article 35 § 1 of the Convention.", "25. The Court recalls that the rules of the six-month period and the exhaustion of domestic options, provided for in Article 35 § 1 of the Convention, are closely linked. In effect, the six-month period runs from the final decision in the context of the exhaustion of domestic options (see, inter alia, Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). This last rule obligates the applicants to gather only the pleas normally available and sufficient in the domestic legal order to allow reparations for the alleged violations to be obtained ( Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999 ‑ V (extracts)). Thus, Article 35 § 1 does not require the exhaustion of extraordinary or discretionary remedies and the decision taken as the result of such an appeal is not normally regarded as the ‘ final domestic decision ’ for the calculation of the six-month period (see, inter alia, Berdzenichvili v. Russia (dec.), no. 31697/03, ECHR 2004 ‑ II ( extracts )). It follows that the Court can examine the merits of the present application only if it finds that the appeal lodged by the applicant, namely that provided for by Article 422, paragraph 1, point 5 of the CCP, is a normally available and effective remedy for the alleged violations of the Convention.", "26. The Court observes in the first place that domestic law allows convicted person to appeal directly to the Supreme Court of Cassation of the appeal in question within a period which does not appear excessively long (see paragraph 20 above).", "The introduction of such an application is not subject to any authorisation or approval by the administrative or judicial authorities. In this case, the applicant availed herself of this opportunity to expressly contest the partiality of the first- instance court and its reasons for imposing an effective sentence (see paragraphs 13 and 14 above). Accordingly, the Court considers that the remedy provided for by Article 422, paragraph 1, point 5 of the CCP was sufficiently accessible to the applicant, both in theory and in practise.", "27. With regard to the efficacy of the proceedings initiated, the Court notes that the appeal in question allows the concerned party to invoke the same deficiencies which open the path to ordinary cassation (see paragraph 20 above). The Supreme Court of Cassation, for its part, has a wide range of powers in the context of this procedure: it can overturn the judgment and refer the case to the lower course for reconsideration, it may also amend the judgment under appeal, terminate criminal proceedings, or acquit the concerned party (see paragraph 21 above).", "28. The Court further observes that the competent court examined all aspects of the substance of the criminal charge against the applicant – the establishment of the facts, their legal qualification, the appropriateness of the sentence and the possibility of suspending its execution ( see paragraph 15 above). Moreover, the proceedings in question took place within a brief period of time: the applicant applied to the competent court less than one month after the contested judgment was delivered (see paragraphs 12 and 13 above) and the Supreme Court of Cassation delivered its judgment without significant delay (see paragraph 15 above). It is true that, in the end, the applicant ’ s request was rejected. However, in light of domestic legal provisions and other circumstances relevant to the case, the Court cannot blame the applicant for lodging the appeal provided for by Article 422, paragraph 1, point 5 of the CCP, which was directly available to her and which could address the alleged unfairness of the proceedings brought against her.", "29. Consequently, the Court considers that the judgment of 5 June 2007 of the Supreme Court of Cassation represents the “final domestic decision” for the purposes of Article 35 § 1. It follows that the present application was introduced in the six-month period provided for by this provision of the Convention.", "30. The Court notes, moreover, that the complaints in question are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they face no other ground of inadmissibility. They should therefore be declared admissible.", "B. On the merits", "31. The Court observes at the outset that the applicant denounces, on one hand, the discriminatory motive behind her conviction to an effective sentence and, on the other hand, the lack of impartiality by the domestic courts which adopted and ratified this decision on the grounds that her ethnicity had been taken into account in determining her sentence. The Court considers it appropriate to first examine the grievance concerning the domestic courts ’ motives in the context of the prohibition of discrimination in the enjoyment of a guaranteed fair trial.", "1. On the allegedly discriminatory nature of the courts ’ reasoning", "a) The parties ’ submissions", "32. The applicant states that the refusal of the first-instance court to suspend the execution of her sentence was motivated by her Roma ethnicity. She maintains that all the other conditions required by criminal law for the application of the suspended sentence procedure were met in her case – the court had set the prison sentence at three years and she had received a pardon for her previous convictions, which were more than twenty years old. However, the first-instance court imposed an effective sentence on the sole basis that a suspended sentence could not be seriously considered, especially among minorities. The applicant considers that this argument directly referred to her belonging to the Roma minority, which she considers proof that in the same circumstances, someone representing the ethnic majority of the country would not have been sentenced to an actual prison sentence. For that matter, the higher courts have joined the arguments put forth by the first-instance court.", "33. The Government categorically rejects this view and considers that the applicant was not subjected to discriminatory treatment based on her ethnicity. It recalls that, according to domestic law, the imposition of a criminal sanction must serve two purposes: general prevention, aimed at deterring other members of society from committing criminal offenses, and specific prevention, which serves to prevent the convicted person from recidivism. In order to properly enforce the legislation concerning suspended sentencing, the domestic courts must take into account these two aspects of the deterrent effect of the sentence, as well as the relevant circumstances of each concrete case.", "34. The Government considers the courts to have correctly applied domestic law in considering that only the imposition of an effective penalty could deter both the applicant and other members of society from committing this type of fraud. The Government considers that, in the reasoning for its judgment, the first-instance court simply highlighted that a possible suspended sentence would have created a feeling of impunity among all members of society, regardless of their ethnicity. It maintains that in the process of adopting the contentious decision, the fact that the applicant was of Roma origin played only a significant role.", "b) The Court ’ s assessment", "35. The Court reiterates that, while it is not up to them to replace the domestic courts in assessing the facts and in interpreting domestic law, it is required to ensure that the procedure followed in this case, taken as a whole, is of an equitable nature, as required by Article 6 of the Convention (see among many others Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997-VIII; Van Kück v. Germany, no. 35968/97, §§ 46 and 47, ECHR 2003-VII).", "36. Article 14 prohibits any unjustified difference in the enjoyment of rights and freedoms guaranteed by the Convention based on any of the criteria enumerated in a non- exhaustive manner by this Article, including the ethnicity or race of the concerned party. The Court has already had the opportunity to rule on the question of under what conditions the motivation behind a court ’ s decision infringes upon the combined provisions of Articles 14 and 6 § 1 of the Convention. In particular, it considered that when the argument of a domestic court ’ s judgement introduces a difference in treatment exclusively based on one of the criteria enumerated in Article 14, the State is under an obligation to justify that difference in treatment. In the absence of such a justification, Articles 14 and 6 § 1 of the Convention are considered to be violated ( Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A No. 263; Moldovan v. Roumania ( No. 2), nos. 41138/98 and 64320/01, §§ 139 and 140, ECHR 2005 ‑ VII ( extracts )).", "37. Turning to the present case, in light of the aforementioned principles, established in its case law and in light of each party ’ s arguments (see paragraphs 32 and 34 above), The Court considers it appropriate to consider first whether the argument of the domestic courts resulted in the introduction of a difference in treatment disadvantaging the applicant on the basis of her ethnicity. If so, it must consider whether the difference in treatment in question was objectively and reasonably justified by the defendant State.", "38. The Court observes that in the part of the reasoning of the judgment of 29 May 2006 pertaining to the appropriateness of suspending the execution of the imposed sentence, the first-instance court had to seek, as required by domestic law, whether the objectives of general and specific prevention could be achieved without the execution of the prison sentence (see paragraphs 17 and 18 above). In motivating its conclusion on general prevention, the first-instance court referred to the existence of a widespread sentiment of impunity in society, highlighting in particular the extent of this phenomenon in the case of minority groups, “for whom a suspended sentence is not a conviction” (see paragraph 10 above).", "39. The Court accepts that in assessing the deterring effect of a sentence vis-à-vis other members of society, a court may have to take into consideration phenomena of a more or less general nature, such as, for example, the situation of crime in the country, the perception by the general public of this or that type of crime, or the possible existence of a social climate of insecurity. Nonetheless, such observations by the court must, in the opinion of the Court, rest on a certain factual basis; however, the Court observes that the domestic court has not put forth a single argument or fact capable of supporting its findings.", "40. The Court is not convinced by the Government ’ s arguments that the contested motivation of the court was directed at the entire society and that the applicant ’ s ethnicity played only a minor role in the court ’ s assessment (see paragraph 34 above). It observes that the court expressly mentioned the applicant ’ s Roma origin among the personal data used to identify her from the outset of the reasoning for their judgment (see paragraph 9 above). The remark about the existence of a feeling of impunity in society, which was very general in nature, was focused on minority groups and hence on the applicant herself : she was sentenced to an effective punishment. The Court is of the view that this assertion, taken together with the applicant ’ s ethnic affiliation, was likely to inspire the public, as well as the applicant, with the sentiment that the court was seeking to impose, in this case, an exemplary sentence for the Roma community, by condemning to an effective sentence a person belonging to the same minority group.", "41. The Court considers that other circumstances corroborate the impression that there was a difference in treatment to the disadvantage of the applicant in her criminal proceedings. It observes that in her plea before the District Court, the prosecutor spoke in favour of a suspended sentence, given the preponderance of mitigating circumstances in this specific case and the state of the applicant ’ s health (see paragraph 8 above). Although it is true that the District Court was not obligated to accept the prosecution ’ s proposal pertaining to the possible suspension of the sentence, the fact remains that the argument concerning the applicant ’ s health was ignored in the District Court ’ s reasons for its judgment, even though this issue may have had some bearing on the decision to impose an effective sentence or not. Moreover, the rejection for purely formal reasons of the medical certificate submitted by the applicant (see paragraph 9 above), even while it was essential proof in support of her alibi, contributed to reinforcing, to some extent, the impression of the applicant.", "42. The Court proceeds to point out that the supervision of superior courts is of particular importance in the event of alleged failure to respect the guarantee of a fair trial, in so far as they can correct the defects of the original proceedings by setting aside the judgment under appeal (see mutatis mutandis Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005 XIII, Chmelíř v. Czech Republic, n. 64935/01, § 68, ECHR 2005-IV). It observes that the applicant has raised in essence and expressly her grievance concerning the discriminatory reasoning of the first-instance court before the superior courts (see paragraphs 11, 13, and 14 above). It must be noted that her appeals were neither accepted by the Regional Court nor the Supreme Court of Cassation.", "43. Moreover, these courts simply supported the reasoning of the District Court with respect to the refusal to suspend the sentence (see paragraphs 12 and 15 above) and the argument relating to the discriminatory nature of her conviction to an effective sentence was not expressly addressed by either of them. Admittedly Article 6 § 1 does not require the domestic courts to reply in detail to all the arguments of the parties in dispute (see mutatis mutandis Hiro Balani v. Spain, 9 December 1994, § 27, series A no. 303-B). However, in the Court ’ s opinion, this was a relevant objection, to which the answer was of particular importance in view of the circumstances of the case. Thus, the domestic courts have not remedied the failure of the first-instance court and have not dispelled the present and serious doubt about its discriminatory nature.", "44. These elements are sufficient for the Court to find that the applicant was indeed subjected to a difference in treatment based on her ethnicity, on account of the ambiguous reason for the courts ’ decision to impose on her an effective prison sentencing.", "45. The Court then observes that in its observations the defending Government merely contested the existence of discriminatory treatment vis-à-vis the applicant and that it did not provide any evidence to justify the difference in treatment found in this specific case (see paragraphs 33 and 34 above). The Court, for its part, does not perceive any circumstances of an objective nature capable of justifying this situation. It wishes to stress in this respect the seriousness of the situation contested by the applicant, since, in contemporary European multicultural society, the eradication of racism has become a priority objective for all contracting States (see Sander v. United Kingdom, no. 34129/96, § 23, ECHR 2000 V). It further observes that the principle of equality of all citizens before the law is enshrined in the Bulgarian Constitution and that the Code of Criminal Procedure requires the courts to apply the criminal law uniformly vis- à-vis all citizens (see paragraph 16 above ). It must be stated that the contested motivation of the courts in the present case seems to depart from these principles.", "46. The Court cannot speculate as to the outcome of the criminal proceedings against the applicant if the domestic courts had not taken the applicant ’ s ethnicity into account in refusing to impose upon her a suspended sentence. However, it considers that in the present case, the contested approach of the courts resulted in an unjustified difference of treatment in the enjoyment of fair trial guarantees based on the applicant ’ s ethnicity. There has therefore been a violation of Article 14 in conjunction with Article 6 § 1 of the Convention on this account.", "2. On the impartiality of domestic courts", "47. The applicant also denounces the lack of impartiality of the domestic courts on account of the arguments they put forth in support of the decision to impose an effective sentence. With regard to the finding of a violation of Article 14 in conjunction with Article 6 § 1 concerning the statement of reasons for the applicant ’ s conviction, and given the particular circumstances of this case, the Court considers that no separate issue arises with regard to the domestic courts ’ impartiality. Therefore, there is no need to examine this grievance by the applicant separately.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. According to Article 41 of the Convention,", "“ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "49. The applicant claims 50,000 euros (EUR) by virtue of the non-penitentiary damage to which she was subjected. She considers the most appropriate remedy to this violation of her guaranteed rights by Articles 14 and 6 § 1 to be the reopening of the criminal proceedings against her.", "50. The Government considers the sum claimed by the applicant by virtue of the non-penitentiary damage to be exorbitant.", "51. The Court considers that the applicant has suffered some non-penitentiary damage as a result of the violation of her right guaranteed by Article 14 in conjunction with Article 6 § 1 of the Convention. It considers that the finding of a violation of the aforementioned articles cannot suffice for the purposes of Article 41 of the Convention. Pronouncing its ruling in fairness, as required by that provision, it considers it appropriate to award the applicant the sum of EUR 5,000 for the non-penitentiary damage to which she has been subjected.", "52. The Court also recalls that, according to its well-establish case-law, it is necessary, in the event of a violation of Article 6 of the Convention, as much as possible, to place the applicant in a situation equivalent to that in which she would be found if there had been no breach of that provision ’ s requirements ( Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). A judgment declaring a violation imposes upon the defending State the legal obligation not only to pay the concerned party the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers of the Council of Europe, general measures and/or, if appropriate, individual measures, to adopt in its domestic legal order in order to put an end to the breach and to make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( Ilaşcu and others v. Moldova and Russia [GC], No. 48787/99, § 487, ECHR 2004 VIII). In particular, in cases of non-compliance with one of the guarantees of Article 6 § 1 of the Convention, the most appropriate remedy is, in principle, to re-try the case or to reopen the proceedings in due course and in compliance with Article 6 (see Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006, and Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006, for the right of access to a court; Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004 IV, for the right to participate in the proceedings; and Gencel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, No. 40997/98, § 23, 29 January 2004, for the lack of independence and impartiality of the trial court.", "53. In this case, the Court observes that when it found a violation of one of the Convention ’ s provisions, the provisions of the Code of Criminal Procedure require the Attorney General to request the reopening of the proceedings before the criminal courts. This provision therefore appears to allow the applicant to have her case reconsidered. In any event, in view of the nature of the violation found in the present case (see paragraph 46 above), and taking into account the particular circumstances of the case, the Court considers the most appropriate remedy to be to reopen the criminal procedure.", "B. Costs and expenses", "54. The applicant also demands EUR 3,068 for the costs and expenses incurred before the Court, equivalent to 42 hours of legal work at an hourly rate of EUR 70, plus postage and translation fees. She presented the contract with her lawyers, together with a note of charges and excess fees. She asks the Court to order the payment of the sum in question directly to the account of her representatives.", "55. The Government considers the amount claimed to be exaggerated and unjustified. It emphasizes that the reasonableness of lawyers ’ remunerations for the proceedings before the Court must be determined in relation to the minimum rates applicable in proceedings before the domestic courts.", "56. According to the case-law of the Court, an applicant can obtain reimbursement of her costs and expenses insofar as their reality, their necessity and the reasonableness of their rate are established. In regard to the hourly rate of EUR 70, the Court observes that it has not been claimed that this rate would be higher than the hourly rate charged, for example, by the large Bulgarian law firms (see mutatis mutandis Anguelova v. Bulgaria, no. 38361/97, § 176, ECHR 2002 IV).", "57. The Court then notes that the applicant has provided sufficient evidence for the totality of the amount claimed. In view of the documents in her possession and the aforementioned criteria, the Court considers the sum requested to be neither exorbitant nor unjustified. After deducting the amount awarded to the applicant by the Council of Europe for legal aid, EUR 850, the Court awards her the sum of EUR 2, 218 by way of costs and expenses, to be deposited into the accounts of her representatives.", "C. Default interest", "58. The Court considers it appropriate to model the default interest rate on the interest rate of the European Central Bank ’ s marginal lending facility of three percentage points." ]

[ "2. The applicant was born in 1979. She died on 2 July 2018. The guardians of her two minor daughters, Yelyzaveta Oleksandrivna Pastrama and Kateryna Oleksandrivna Pastrama, born in 2009 and 2011 respectively, and of her minor son Oleksandr Oleksandrovych Pastrama, born in 2013, expressed the wish to pursue the application on their behalf. The applicant and her next-of-kin were represented by Ms O. Sapozhnikova, a lawyer practising in Kyiv.", "3. The Government were represented by their Agent, Mr I. Lishchyna.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Incident of 30 May 2012", "5. From an unspecified date until 30 May 2012 the applicant lived in an unauthorised tent encampment inhabited by Roma and located in Kyiv near railway tracks administered by Southwestern Railway, part of the State Rail Transport Administration.", "6. On 15 May 2012 a citizen complained to the mayor ’ s office about the encampment.", "7. According to the applicant, at around noon on 30 May 2012 a group of plain-clothed police officers came to the encampment. They led the residents out of the encampment and set their tents on fire with their personal belongings still inside. The officers fired shots in the air and shot a dog. They made the male residents strip to the waist and photographed them. The residents recognised one officer as the neighbourhood police officer ( дільничний міліціонер ) in charge of the area where they were living. According to the residents, the officers told them that they had an order to clear the encampment in preparation for the 2012 UEFA European football championship, hosted that year by Poland and Ukraine. The events were witnessed by children.", "Pre-investigation enquiries conducted following the intervention of the International Organization for Migration and NGOs", "8. On 1 June 2012 the applicant and two other former residents of the encampment contacted the Ukrainian Helsinki Human Rights Union (“the Helsinki Union”) for assistance in bringing their complaint concerning the encampment ’ s destruction to the authorities.", "9. On 5 and 6 July 2012 the Congress of Roma of Ukraine and the Helsinki Union respectively wrote to the Kyiv Police and the Kyiv prosecutor asking them to institute criminal proceedings in connection with the incident.", "10. On 13 June 2012 the International Organisation for Migration (IOM) Mission in Ukraine sent a letter expressing concerns about the incident to the Ministry of the Interior, the Prosecutor General ’ s Office and other State authorities.", "11. On an unspecified date the European Roma Rights Centre (ERRC) also raised concerns about the incident with the authorities.", "12. As part of the pre-investigation enquiries launched in response to that information, the applicant was questioned on 11 July 2012. Her lawyer Ms Sapozhnikova was present.", "13. The applicant stated at the time of questioning that she was living in a tent in Kyiv in the neighbourhood close to where the encampment used to be located. She stated that she had used to live in the previous encampment but that on 30 May 2012 ten individuals she had recognised as officers from the Darnytsya district police had come to the encampment dressed in civilian clothes. They had explained that living there was prohibited and that they had an order to clean up the city in the run-up to the Euro 2012 tournament. They had then set the tents on fire using cigarette lighters.", "The applicant had heard several shots and after two of them had heard a dog whimper. Firefighters had come to extinguish the fire. The officers who had burned down the encampment had been accompanied by the neighbourhood police officer, who the applicant had recognised. The applicant had left Kyiv on 3 June and returned “about a week” prior to the police interview.", "14. Another former encampment resident, Ms S.G., also made a statement to the police as part of the same round of pre-investigation enquiries in July 2012. She stated that the majority of the individuals who had destroyed the encampment had been in police uniforms but she had not known them. One of them had shot her son ’ s dog. Other residents had told her that one of those in uniform had been the neighbourhood police officer who had previously visited the encampment and taken money from residents.", "15. On 23 July 2012 the Kyiv Police informed the Helsinki Union that the incident had been investigated and that the results of the investigation had been forwarded to the Kyiv Dniprovsky district prosecutor ’ s office (“the DPO”), which would decide whether or not to institute criminal proceedings.", "16. On 28 August 2012 the applicant was interviewed by an officer from the internal security department of the Kyiv Police. Her lawyer was not present. She stated that she had not previously known the individuals who had set the encampment on fire or whether they had been connected to the police. She was shown a photograph of a certain G. and stated that she identified him as the same man who had visited the encampment, introduced himself as the neighbourhood police officer, demanded money from residents and participated in setting the tents on fire.", "17. On 6 September 2012 the DPO decided not to institute criminal proceedings against the district police officers for lack of the constituent elements of an offence in their actions. The decision was reasoned as follows:", "( i ) Upon receipt of letters from the IOM and ERRC concerning the incident, the DPO forwarded that material to the internal security service of the Kyiv city police, which completed its internal inquiry on 3 September 2012.", "(ii) Relying on the results of that internal inquiry, the DPO found that on 15 and 23 May 2012 two citizens had complained to the Dniprovsky district police (“the district police”) that a group of individuals had set up an illegal encampment near the railway tracks and had been disturbing public order. In response, on 26 May 2012, the neighbourhood police officer, S., had investigated the complaint and found an encampment of thirteen Roma. S. had photographed the residents and taken down their personal details. However, finding that the land where the encampment was located did not fall within the district police ’ s jurisdiction but rather the jurisdiction of Ukrainian Railways, on 31 May 2012 officer S. had forwarded the residents ’ complaints to the Darnytsya railway station police unit. On 2 June 2012, after several Internet news sites had reported that the encampment had been burned down, officer S. and police Major D. had then visited the site, where they had discovered four Roma in the process of burning rubbish. The latter individuals had informed the officers that they had intended to join the other Roma, who had left for Mukacheve in the Zakarpattya region;", "(iii) The DPO proceeded to note that no complaints from the Roma about the police had been registered in 2012 and that the local fire brigade had had no records of any calls concerning any fires near the railway tracks in the relevant period. In response to the letters from the Helsinki Union and the Congress of Roma of Ukraine, an inspector of the Kyiv Police had questioned the applicant and two other former encampment residents as well as officer S. and Major D. The officers had denied any involvement in the attack on the encampment.", "(iv) The DPO concluded that there was no indication that police officers had been involved in the incident. At the same time, it noted that enquiries by the police internal security department had indicated that a guard from the Armed Rail Guard Service, G., might have been involved in the events. G. ’ s rail guard unit wore uniforms and carried firearms similar to those of the police (see paragraphs 43 and 44 below concerning the status of the Service). When interviewed, G. had confirmed that he had visited the encampment and threatened to burn it down. However, he had insisted that he had not actually set it on fire. The applicant and two other former residents of the encampment, T.D. and I.K., had identified G. from a photograph as the person who had extracted bribes from them to continue to tolerate the encampment before then participating in the attack.", "18. On 7 September 2012 the DPO informed the chief of police of Southwestern Railway of its findings, including those concerning the possible role of G. in the incident, and asked him to “take a decision in accordance with the law” and inform the IMO and ERRC of the decision taken. There is no information in the case file as to the follow-up given to this request.", "19. The applicant provided evidence that her lawyer Ms Sapozhnikova had attempted to obtain a copy of the decision of 6 September 2012 after 22 October 2012 but had been met with refusal because the case file had been between various prosecutor ’ s offices.", "20. On 13 March 2013 Ms Sapozhnikova examined the relevant case file and received a copy of the decision of 6 September 2012 refusing to institute criminal proceedings. In subsequent proceedings she considered that that was the date from which the seven-day time-limit for appealing against that decision (see paragraph 41 below) should be counted.", "21. On 20 March 2013 the applicant appealed against the decision of 6 September 2012. She argued, in particular, that the DPO had failed to verify her statements about the neighbourhood police officer ’ s role in the attack and about there being numerous attackers. She argued that the appeal was being lodged within the time-limit because she (and her lawyer) had not received a copy of the DPO ’ s decision of 6 September 2012 until 13 March 2013.", "22. On 1 April 2013 the Kyiv Dniprovsky District Court (“the District Court”) rejected the applicant ’ s appeal as lodged out of time, holding that she had failed to corroborate her allegation that she had not received a copy of the DPO ’ s decision until 13 March 2013.", "23. On 4 June 2013 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld the ruling of 1 April 2013.", "24. On 23 January 2014 the High Specialised Court for Civil and Criminal Matters upheld the rulings of 1 April and 4 June 2013, holding that the applicant had missed the time-limit without justification because the DPO had been under no obligation to inform her of the decision of 6 September 2012 since it had been taken in response to a third party ’ s complaint and not hers.", "Criminal investigation initiated by the applicant", "25. In the meantime, on 19 November 2012 a new Code of Criminal Procedure came into force, eliminating the pre-investigation enquiry stage. Under this Code, an investigation is commenced by creating an entry in the Central Register of Investigations (see also paragraphs 40 to 42 below).", "26. On 25 June 2013 the DPO, at the applicant ’ s request, made an entry in the Central Register of Investigations to investigate the allegation that employees of the Armed Rail Guard Service had committed the offence of abuse of official position in connection with the destruction of the encampment.", "27. In the course of the investigation, on 2 September 2013, the DPO questioned G., who stated that he had served as an armed rail guard and had carried a firearm in the course of his duties. He had indeed warned the residents of the illegal encampment that, if they did not leave, he and the officers “would be forced to burn [it down]”. He also admitted that he had issued a fine to the residents for crossing railway tracks in a prohibited place but had not taken bribes from them. However, he denied the allegation that he had set the tents on fire. He had received an order to do so from a superior in the Armed Rail Guard Service, M.I.Sh ., but had not complied with it as he had known that it would have been illegal. G. considered that the residents of the encampment were slandering him because he had fined them.", "28. As part of that investigation, the DPO instructed detectives of the district police to interview the applicant and other former residents of the encampment. In response, a police detective reported to the chief of the district police that none of the people to be interviewed could be found. According to the applicant, despite having the necessary contact information on file, the police never attempted to contact her via her lawyer in order to arrange an interview.", "29. On 2 September 2013 the DPO decided to discontinue the investigation. It referred to the results of G. ’ s questioning (see paragraph 27 above). It also relied on the fact that the DPO investigator had instructed the police to locate the applicant and two other former encampment residents, T.D. and I.K., to question them about the incident but that they could not be found because they had moved on and had no registered addresses (see paragraph 28 above). For this reason, it had been impossible to question them. The DPO concluded that no corpus delicti had been established in the actions of employees of the Armed Rail Guard Service.", "30. On 19 December 2013, in response to an enquiry by the applicant, the DPO informed her of its decision of 2 September 2013. She appealed to the District Court.", "31. On 24 January 2014 the District Court rejected the applicant ’ s appeal.", "32. On 13 March 2014, following an appeal by the applicant, the Court of Appeal quashed the ruling of 24 January 2014 and the decision of 2 September 2013. It held that the DPO had limited its investigation to questioning G. and had not taken sufficient steps to question the applicant, T.D and I.K., despite the fact that there had been information in the case file indicating where they could be found. The court concluded that the DPO had failed to take any active steps to clarify the circumstances of the case.", "33. On 29 April 2014 the Dniprovskyy district police discontinued the criminal proceedings due to absence of the constituent elements of a criminal offence in the incident.", "34. On 2 December 2016 the DPO (in the meantime renamed Kyiv District Prosecutor ’ s Office no. 4) informed the applicant ’ s lawyer that the investigation had been resumed.", "35. On 29 April 2017 an investigator from the Dniprovsky district police decided to discontinue the investigation as the constituent elements of an offence had not been established:", "( i ) The investigator stated that the applicant and two other former residents of the destroyed encampment had identified G. from a photograph as the person who had extracted bribes from them and participated in setting fire to their tents on 30 May 2012.", "(ii) The investigator noted, however, that G. denied his guilt. In this connection, the investigator referred to Article 62 of the Constitution, which provided that an accusation could not be based on assumptions and that any doubts with regard to the proof of a person ’ s guilt had to be interpreted in his or her favour (see paragraph 39 below).", "36. The applicant was not immediately informed of that decision. A copy of it was sent to her on 23 April 2018.", "37. On 8 June 2018, following a complaint by the applicant, the District Court quashed the decision of 29 April 2017 on the grounds that it was premature and based on an incomplete and biased assessment of the evidence. In particular, it was not clear why the investigator had trusted G. ’ s evidence and ignored that of the encampment residents.", "38. According to the most recent available information from the parties, it appears that the investigation is currently still pending." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Constitution of 1996", "39. Article 62 of the Constitution guarantees the presumption of innocence. Article 62 § 4 states that all doubts with regard to the proof of a person ’ s guilt must be interpreted in his or her favour.", "Codes of Criminal Procedure of 1960 and 2012", "40. At the material time, the Code of Criminal Procedure of 1960 (“the 1960 Code”) provided for a procedure known as “pre-investigation enquiries”. That procedure resulted in a decision either not to institute criminal proceedings or to institute them. In case of the latter, a fully-fledged criminal investigation was conducted. The provisions concerning the pre-investigation enquiries procedure and the remedies available to alleged victims in that context can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).", "41. Under Article 236-1 of the 1960 Code, an appeal against a decision refusing to institute criminal proceedings could be lodged with the relevant court by the person whose interests were concerned by the decision within seven days of notification.", "42. The 1960 Code was repealed with effect from 19 November 2012. The new Code eliminated the pre-investigation enquiry stage. Under the new Code, a fully-fledged investigation is commenced directly, by creating an entry in the Central Register of Investigations.", "Rail Transport Act of 1996 (as amended)", "43. At the relevant time, section 12 of the Rail Transport Act provided that the Armed Rail Guard Service of Ukrainian Railways was responsible for guarding rail cargo and installations and that employees of the Service were subject to the rights and duties defined in the Armed Rail Guard Service Regulations and other legislation.", "Armed Rail Guard Service Regulations of 1994 (as amended)", "44. The Cabinet of Ministers enacted the Armed Rail Guard Service Regulations on 11 January 1994. At the relevant time, paragraph 6 of the Regulations authorised employees of the Service to impose sanctions for administrative offences related to rail transport, arrest offenders and conduct searches.", "THE LAW", "PRELIMINARY ISSUEsThe applicant ’ s death", "The applicant ’ s death", "The applicant ’ s death", "45. The Court notes that the applicant died after the application had been lodged but that the application is being pursued by her children, Ms Yelyzaveta Oleksandrivna Pastrama, Ms Kateryna Oleksandrivna Pastrama and Mr Oleksandr Oleksandrovych Pastrama, represented by their guardians (see paragraph 2 above). The Court considers that they have standing to continue the present proceedings in applicant ’ s stead.", "46. However, reference will still be made to “the applicant” throughout the following text.", "Scope of the case", "47. In a letter to the Court of 5 January 2019 the applicant ’ s lawyer, apparently still unaware of the applicant ’ s death, referred to events concerning the alleged destruction in 2017 of another irregular encampment in which the applicant lived and the applicant ’ s arrest in Kyiv that year.", "48. The Court considers that this information cannot be considered an elaboration of the applicant ’ s original complaints, on which the Government have commented. It considers, therefore, that it is not appropriate at this time to take up these matters in the context of the present case.", "ALLEGED VIOLATIONS OF ARTICLES 3 AND 14 OF THE CONVENTION", "49. The applicant complained that she had been subjected to treatment contrary to Article 3 of the Convention owing to her ethnic origin and that the authorities had failed to conduct an effective investigation in that regard, in particular to uncover the discriminatory motivation behind the attack on the encampment. She relied on Articles 3 and 14 of the Convention, which read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "50. The Government contested that argument.", "51. The Court notes at the outset that the Government did not dispute that the treatment the applicant allegedly suffered fell within the ambit of Article 3. However, the Court must address that matter since it concerns the Court ’ s jurisdiction ratione materiae.", "52. The relevant principles of the Court ’ s case-law concerning applicability of Article 3 can be found in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 116-19, 25 June 2019).", "53. The Court observes that the applicant ’ s description of the events of 30 May 2012 (see paragraph 7 above) is impersonal and describes the events in general, not the applicant ’ s personal role in them or their effect on her. She provided no detailed information on her situation prior to or after the settlement ’ s destruction. The only indication of the applicant ’ s situation is that she lived in a short-lived precarious illegal settlement consisting of tents rather than more permanent structures (contrast, for example, Burlya and Others v. Ukraine, no. 3289/10, § 134, 6 November 2018).", "54. There is also no indication to what extent the events had a long-term impact on the applicant since the case-file material indicates that within weeks of the incident she returned living to the same neighborhood in similar conditions (see paragraph 13 above and contrast Moldovan and Others v. Romania ((no. 2), nos. 41138/98 and 64320/01, §§ 102-107, ECHR 2005 VII (extracts)).", "55. In view of the foregoing, the Court finds that the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention has not been attained. Accordingly, the Court rejects the applicant ’ s complaint under Article 3 of the Convention taken alone and in conjunction with Article 14 of the Convention as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 OF the CONVENTION and of ARTICLE 1 of PROTOCOL NO. 12", "56. The applicant complained that the attack of the encampment and the alleged failure of the domestic authorities to investigate it amounted to a violation of her rights under Article 8 of the Convention. This provision reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "57. She also invoked Article 14 of the Convention and Article 1 of Protocol No. 12, which reads:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "The submissions by the parties and the third-party intervener", "58. The parties initially made the bulk of their submissions under Articles 3 and 14 and then merely updated them also under Article 8 of the Convention.", "The Government", "59. The Government submitted that there was no indication that State agents had been involved in the alleged destruction of the applicant ’ s encampment. Apart from the applicant ’ s submissions to the Court, there was little evidence that the police had been involved: the applicant had changed her statements on this point (see paragraphs 13, 14 and 16 above).", "60. The applicant had identified G. as a participant in the incident (see paragraph 16 above) from a photograph. He had not been a police officer but an employee of Ukrainian Railways, an independent commercial entity that did not exercise any State powers in the field of law enforcement. In any event, even if the guarding of rail facilities had been the responsibility of that company under law, this did not mean that the State could be held responsible for plainly ultra vires actions of the company ’ s employees.", "61. In any event, besides the applicant ’ s allegations, there was no evidence that G. had been involved in the burning of the tents. He himself had denied that.", "62. In general, there was no evidence that the encampment had been burned down: there had been no independent witnesses to the incident, no calls to the police and no calls to the fire brigade for help. There was also a contradiction in the applicant ’ s statement to the police – she had claimed that the fire had been put out by firemen, but there was no record of the fire brigade having been called in connection with such an incident (contrast paragraphs 13 and 17 (iii) above).", "63. The complaints under Article 14 and Article 1 of Protocol No. 12 were outside of the six-month period since the applicant had failed to challenge the decision of 6 September 2013 refusing to institute criminal proceedings against police officers within the prescribed time-limit. This decision had been ultimately upheld by the High Specialised Court for Civil and Criminal Matters (see paragraph 24 above). Accordingly, the six-month time-limit had to be counted from the date of the DPO ’ s decision, 6 September 2012 (see paragraph 17 above), which fell outside of the six ‑ month period.", "64. As regards G. ’ s involvement, the above-mentioned discrimination ‑ related complaints were premature since the investigation in that regard was still pending.", "65. The Government submitted that the authorities had promptly launched an investigation into the alleged incident. The police and the prosecutor ’ s office had taken all possible steps to establish the circumstances of the event, in particular questioning individuals who could potentially have been involved in the incident or had information about it. The applicant and other alleged victims had been questioned but had been reluctant to give evidence, and their failure to cooperate (see paragraph 28 above) had significantly hindered the investigation.", "66. The applicant and other occupants of the encampment had never indicated in their statements given in the domestic proceedings that there had been racist motives behind the destruction of the encampment. They had stated, variously, that they had either been unaware of the motives, that it had been destroyed because it had been unlawfully placed near the railway or because the police had been clearing the city of various unlawful encampments in preparation for the Euro 2012 football championship.", "67. In any event, there was no indication that the encampment had been destroyed due to racism. The applicant ’ s ethnicity alone could not serve as such proof. In that connection, the Government contrasted the present case with the case of Šečić v. Croatia (no. 40116/02, § 68, 31 May 2007), where the racist motives could be inferred from the fact the attack had been conducted by a skinhead group.", "68. There was no evidence that the illegal tent encampment in question had been constantly located in the place in question, near railway tracks. Moreover, the applicant herself stated that she and her family were changing their place of living. Therefore, it was not shown that the applicant had had sufficient and continuous links with the mentioned place so as for it to constitute her “home”.", "The applicant", "69. Commenting on the contradiction in the applicant ’ s statements concerning the attackers belonging to the police (see paragraphs 13 and 16 above), the applicant ’ s lawyer submitted that there was no explanation for the decision to question the applicant for a second time in her absence, as the authorities had known that the applicant was being represented and had had her contact details on file. In such circumstances, she found it suspicious that the applicant would implicate the police when questioned in her presence, but would change her evidence to exonerate the police when questioned in her absence.", "70. As to the State ’ s responsibility for the attack, the applicant pointed out that G. had himself stated that he had received an order to burn the encampment down from his superior in the Armed Rail Guard Service.", "71. The applicant maintained that law enforcement officers had been involved in the attack on her encampment and that the investigation had been reluctant, biased and incomplete. As to the authorities ’ alleged inability to contact her for questioning (see paragraphs 28 and 65 above ), the police had known that she was represented (see paragraph 13 above) but had failed to contact her lawyer when they had allegedly been unable to locate her directly. The applicant argued that there had been flaws in the investigation because of the prejudiced attitude towards the Roma. In this connection, she referred to the third-party intervener ’ s submissions (see paragraph 73 below) and argued that a similar arson attack against a non-Roma person would have been investigated by the law enforcement authorities much more quickly.", "72. If the Court found no violation of Article 3 of the Convention, the applicant asked the Court to give consideration to at least recognising a violation of Article 8 of the Convention in its “private life”, “family life” and “home” aspects. She believed that the situation could be examined in terms of “interference” with the applicant ’ s rights and in terms of compliance with the State ’ s positive obligations.", "The third-party intervener", "73. The European Roma Rights Centre invited the Court to recognise that Roma were victims of institutional racism on the part of some elements of the Ukrainian law enforcement authorities.", "The Court ’ s assessmentAdmissibility", "Admissibility", "Admissibility", "74. The Court observes at the outset that the applicant did not make any submissions which would indicate that the applicant ’ s family life had been affected by the events in question or that the encampment constituted her “home” for the purposes of Article 8 of the Convention (compare Hirtu and Others v. France, no. 24720/13, § 65, 14 May 2020).", "75. However, the Court ’ s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse (see, mutatis mutandis, Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C; Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006 ‑ X; and R.B. v. Hungary, no. 64602/12, § 79, 12 April 2016).", "76. In the present case the applicant made a credible allegation that the tent encampment where she had lived had been destroyed in her presence. Such an event could not fail to leave a serious impression on her and affect her life circumstances. The Court, therefore, considers that the situation fell within the ambit of Article 8 of the Convention, in its “private life” aspect (compare Hirtu and Others, cited above, § 66).", "77. Even though, as the Government correctly pointed out, there were contradictions in the applicant ’ s own version of events that had occurred on 30 May 2012 and between her account and the established facts (contrast paragraphs 13, 16 and 17 (iii) above), it was up to the domestic authorities to clarify the relevant facts by conducting an effective investigation. The Government ’ s argument concerning the lack of evidence of involvement on the part of State agents in the destruction of the applicant ’ s encampment is closely linked to the merits of the application.", "78. As to the Government ’ s arguments concerning the applicant ’ s alleged failure to comply with the six-month rule (see paragraph 63 above), the Court notes that the decision of 6 September 2012 (see paragraph 17 above), to which the Government referred as the starting point for counting the six-month period, did not amount to definitive completion of domestic proceedings in respect of the incident. In fact, that decision only concerned complaints lodged by the International Organization for Migration and NGOs and in which, the domestic courts concluded, the applicant had no right to information (see paragraph 24 above). By contract, following a complaint by the applicant herself a separate investigation was initiated and it appears that it is still pending (see paragraphs 26 and 38 above).", "79. In so far as the Government argued that the applicant ’ s complaints were premature because the investigation in respect of G. was still ongoing, the Court reiterates that in such cases it is the duty of the applicant to lodge an application with the Court as soon as he or she realises, or ought to have realised, that the investigation in question is not effective (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 264, ECHR 2014 (extracts)). The issue of identifying the exact point in time that this occurs necessarily depends on the circumstances of the case, and it is difficult to determine it with precision (ibid., § 266).", "80. In the present case, the relevant proceedings have been ongoing for more than seven years. In such circumstances the applicant did not have to wait for that investigation to be completed before lodging the present complaints with the Court. In lodging them she acted in compliance with her duty of diligence and the complaints cannot be rejected as premature.", "81. Accordingly, the Court ’ s rejects the Government ’ s objections.", "82. The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "(a) Relevant general principles", "83. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see X and Y v. the Netherlands, judgment of 26 March 1985, § 23, Series A no. 91).", "84. The Court has held that the State ’ s positive obligation under Article 8 to safeguard an individual ’ s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998 ‑ VIII; M.C. v. Bulgaria, no. 39272/98, §§ 150-52, ECHR 2003 ‑ XII; Moldovan and Others, § 96, and Burlya and Others, §§ 169 and 170, both cited above).", "(b) Application of the above principles to the present case", "85. The Court notes at the outset that, as submitted by the Government, the evidence of the applicant and other former encampment residents concerning the alleged involvement of State agents in the encampment ’ s destruction is indeed contradictory (see paragraphs 13 to 16 above). However, only an effective domestic fact-finding exercise could eliminate any doubts on that point.", "86. The Court considers, therefore, that the key issue in the present case is the authorities ’ alleged inability to elucidate the circumstances of the incident which took place on 30 May 2012, including any possible involvement of State agents.", "87. It was never contested that, if the applicant ’ s account of events was shown to be correct, the actions of the persons who destroyed the encampment constituted a criminal offence. Therefore, a criminal investigation launched by the domestic authorities was the most appropriate avenue for elucidating the circumstances of the incident. On the facts of the present case, only within the framework of such an investigation could the identity of the actors involved be established with any degree of certainty. In such circumstances, any civil-law avenues of redress taken on their own could not be effective (see, for the relevant principles of the Court ’ s case ‑ law, Söderman v. Sweden [GC], no. 5786/08, §§ 84 and 85, ECHR 2013, with further references).", "88. The Court will, therefore, turn to the question of effectiveness of the domestic investigation.", "89. The domestic authorities did launch and conduct such an investigation and were able to obtain strong indications that G., at the time an armed guard of the State-owned company Ukrainian Railways, or his superior M.I.Sh. might have been involved in the encampment ’ s destruction (see paragraph 27 above).", "90. However, the authorities failed to follow up on those indications. The domestic investigating authority took G. ’ s denial of actual involvement in the attack on faith, without taking any steps to verify his statements (such as, for example, enquiring as to his whereabouts at the relevant time) and without explaining their decision to trust G. ’ s denials without such verification.", "91. This flaw in the investigation was pointed out by the domestic court (see paragraph 37 above), which was apparently unimpressed, as is this Court, by the investigating authority ’ s reliance on the constitutional principle that doubt must be interpreted in the defendant ’ s favour, in the absence of any effort to dispel those doubts.", "92. Moreover, despite G. ’ s direct accusation against his superior M.I.Sh. as the person who allegedly sought to organise the encampment ’ s destruction, there is no indication that the authorities took any steps to investigate the possibility that he or any of his subordinates were involved in the incident.", "93. The Government did not explain in what way following up on those elements required the applicant ’ s involvement. The Court, for its part, sees no such connection and therefore does not consider it necessary to examine in detail the allegation that the applicant failed to cooperate with the domestic investigation (see paragraphs 28 and 65 above).", "94. The foregoing considerations are sufficient for the Court to conclude that the authorities failed to react appropriately to the incident by conducting an investigation compliant with their positive obligation to ensure effective respect for the applicant ’ s private life.", "95. There has accordingly been a violation of Article 8 of the Convention.", "96. As to the applicant ’ s allegation that the destruction of her tent encampment and the failure to investigate the incident was linked to anti-Roma prejudice, the Court notes that those allegations are rather vague and general in nature and there is no specific evidence to support them in the file.", "97. In this context the Court reiterates that the authorities ’ duty to investigate the existence of a possible link between discriminatory attitudes and any act of violence is an aspect of the States ’ procedural obligations under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14. Owing to the interplay between Article 14 and the substantive provisions, issues of discriminatory violence may fall to be examined under only one of the two provisions, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see Bekos and Koutropoulos v. Greece, no. 15250/02, § 70, ECHR 2005 ‑ XIII (extracts)).", "98. The Court finds that similar considerations are relevant as far as Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 are concerned (compare R.B. v. Hungary, cited above, §§ 83 and 84). For the reasons stated above and in light of the material available to the Court it considers that, in the circumstances of the present case, no issue requiring a separate examination arises under Article 14 taken in conjunction with Article 8 of the Convention or under Article 1 of Protocol No. 12.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "100. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage.", "101. The Government considered that claim unjustified and excessive.", "102. The Court, in view of the relative gravity of the violation concerning positive obligations of the State under Article 8, awards the applicant EUR 2,700 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "103. The applicant also claimed EUR 3,183 for the costs and expenses incurred before the domestic courts and the Court, to be paid directly into the bank account of the applicant ’ s representative, Ms Sapozhnikova.", "104. The Government considered those claims unjustified and excessive.", "105. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claimed sum of EUR 3,183, covering costs under all heads, to be paid directly into the bank account of the applicant ’ s representative.", "Default interest", "106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant, who is of Roma origin, was born in 1931 and lives in Ankara.", "A. Application no. 4149/04", "1. The book The Gypsies of Turkey ( Türkiye Çingeneleri )", "10. In 2000 the Ministry of Culture published 3,000 copies of a book entitled The Gypsies of Turkey, written by Associate Professor Ali Rafet Özkan. Before its publication, a publications advisory board approved the content of the book. The preface to the book states as follows:", "“...", "Gypsies live in peace on Turkish territory today, just as they have throughout history, but now they are left entirely to their own devices, without regulation, supervision or attention. Their unregulated way of life, in which they are abandoned entirely to their own fate, is a failing on Turkey’s part. The Gypsies’ current unordered way of life, and the fact that it is considered quite unnecessary to venture into their closed world in any way despite the long history we share, is a further shortcoming. Associated with this is the fact that while Gypsies have indeed lived for many years among us, they have been ostracised by local people and targeted by vilifying remarks which have, for the most part, been unenlightened and prejudiced. The negative response and distressing accusations which they encounter wherever they go have driven Gypsies, who already have a societal structure which is closed off from the outside world, to live in still narrower confines.", "We felt that there was a need to step into the unknown world of these people who have lived among us for centuries and have now become part of contemporary Turkish culture. My aim was thus to get to know them closely using an empirical approach, and to present the Gypsies of Turkey as they are, in all their aspects, on the basis of the principles of scientific objectivity.", "This study comprises an introduction and two sections.", "The introduction provides information about the Gypsy as a concept and the origins of the Gypsies, as well as detailed information about their migration, and considers their history in Turkey in the light of various archive documents and scholarly sources. In the first section, the socio-cultural characteristics of Gypsies are considered in broad terms. This section examines in particular the home life and travels of Gypsies, their music, dance, language, traditions and customs. The second section deals with the beliefs and practices of the Gypsies.", "This study – which I present without any pretensions, but merely in a bid to fill a significant gap (it being the first study of its kind), and to provide guidance to others working on the Gypsies in the future – was prepared using descriptive, comparative and phenomenological methods, in addition to participant observation and interview techniques.", "...”", "11. In the introduction, the author went on to state:", "“...", "Gypsies have spread throughout the world but they have been unable to escape their status as a marginal group which is excluded and despised everywhere. Apart from the differences in their way of life, the characteristic which most obviously distinguishes Gypsies from others is the colour of their skin, which is darker, swarthier. In typological terms, most Gypsies are of medium height, of agile build, with large dark black (occasionally hazel or blue) eyes and long thick eyelashes; the men have long moustaches. The mouth is slender and elegant, the teeth white and even, with a round jaw. They have a narrow forehead and temples and a small cranium. Their hair is curly, black, long and thick. Beyond middle age, the women are broad and corpulent. The younger people are slim, with firm and powerful muscles (see Carmen by Prosper Mérimée, Gypsy Stories of our own and from around the world by Tahir Alangu and The sieve-making of the Gypsies of Posalar by Esat Uras).", "...", "This research is intended to present the identity of the Gypsies, these people who have lived among us for centuries and have become an integral part of contemporary Turkish culture, but about whom no comprehensive scientific study has as yet been conducted because their cultural identity has been largely ignored as a result of the difficulties in identifying and defining them. This study will give an account of their socio-cultural characteristics, beliefs, mythologies, festivals and celebrations in all their aspects.", "For the purpose of this study, an initial survey was conducted of information, documentation and materials concerning Gypsies, from Turkey and elsewhere. The information and documents thus identified were then classified on the basis of their scientific reliability, using validity criteria. Next, an empirical study involving observation of the participants was carried out by going among the Gypsy population and living with them. Visits were made to all the areas of Turkey with a Gypsy population – both nomadic and settled – and in this way an effort was made to establish the facts about their way of life, traditions, beliefs, forms of worship and practices, not only by gathering data and documentary and other material, but also by the empirical method of living among them.”", "12. In the book, the author devoted a chapter to the “Gypsies of Contemporary Turkey”. In this chapter he stated:", "“Today’s Gypsies are scattered all over Turkey. They are principally located in the Marmara, Aegean and Mediterranean regions, with a lower concentration in the Black Sea, central Anatolia and south-east Anatolia regions. The distribution of Gypsies in Turkey will be dealt with here.", "...", "So far no general population census has included separate records for Gypsies; hence, the size of the Gypsy population in Turkey is not known with certainty. Rather than using estimated figures, we obtained information from Gypsies themselves, from local people living nearby and from local administrators. We attempted to clarify this information by making a comparison with the overall district population figures which we received from the district chiefs [ muhtar ].", "...", "Istanbul", "...", "Gypsies living within the provincial borders of Istanbul generally make their living from music, flower-selling, scrap-metal dealing, rubbish and paper collection, blacksmithing and ironworking, portering, fortune-telling, cleaning, working with a horse and cart, coppersmithing, slug-collecting and door-to-door selling. There are also some, albeit few in number, who make a living from pickpocketing, stealing and selling narcotics.", "Tekirdağ", "...", "The Roma (Gypsies) of Tekirdağ make their livelihood from playing music, portering and shoe-shining. Women work as domestic cleaners and handle bricks at the brick factory. Those in Çorlu and Lüleburgaz earn their living from music, portering, horse trading (livestock dealing), construction work and running lotteries, and the women earn their living from cleaning.", "Kırklareli", "...", "The Roma of Kırklareli generally make their living from music, working with a horse and cart, street vending, portering, cleaning and scrap-metal dealing.", "Edirne", "...", "Those who live in Edirne city centre generally earn their living from working with a horse and cart, scrap-metal dealing and street vending, while the women contribute to the family economy with cleaning work. Nearly all of the inhabitants of the Yukarı Zaferiye district of Keşan earn their livelihood from music. The rest of them work in various sectors such as labouring in the rice fields, concrete-pouring on construction sites, portering, working with a horse and cart, collecting frogs and slugs, scrap-metal dealing, paper collection, house painting and selling simit [a type of bread roll]. Those in Uzunköprü live from scrap-metal dealing, tinsmithing and basket-making.", "...", "Ankara", "...", "The Gypsies of the central district of Ankara earn their living from stealing, begging, door-to-door selling, fortune-telling, zercilik [robbing jewellery stores] and making magical charms. A small number are also involved in tinsmithing, working with leather harnesses, sieve-making and basket-making. There are also many who work as musicians in nightclubs. It is reported that most of those who trade in ironmongery around Altındağ and Hamamönü are Gypsies from Çankırı.", "...", "We attempted to visit every province and district where Gypsies were located. The figures which we have given for each province were obtained by comparing information, noting the exaggerated figures given by the Gypsies and then talking to the district chiefs [ muhtar ], and where necessary the district police. ...”", "Similar remarks to the ones quoted above were made in respect of the Roma population living in other parts of Turkey such as İzmir, Manisa, Konya, Adana and Antalya.", "13. The closing paragraphs of the conclusion to The Gypsies of Turkey read as follows:", "“The most important links connecting the Gypsies to each other are their family and social structures as well as their traditions. Despite the fact that they have led a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to the practice of marrying within the group. Their attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the Gypsy way of life. The elderly members of Gypsy society bear the heaviest responsibility for protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “ Natia ”, one of these social structures, can no longer be sustained in today’s Turkey.", "The most striking characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune-telling, sorcery and occupations, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos.", "Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs, which can be partly traced to Hinduism.", "In our opinion these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are addressed. This simply entails focusing on this issue with patience and determination.”", "2. The domestic proceedings initiated by the applicant", "14. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Roma/Gypsy associations. In his petition he submitted that in the book the author had stated that Gypsies were engaged in illegal activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. The applicant also submitted that the book contained several other remarks that humiliated and debased Gypsies. Claiming that these remarks constituted a criminal offence, he requested that the sale of the book be stopped and all copies seized.", "15. On the same day the Head of the publications unit at the Ministry of Culture ordered that the remaining 299 copies of the book be returned to the publications unit.", "16. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized.", "17. On 17 October 2001 the Head of the publications unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was a piece of scientific research and did not contain any insults or similar remarks. The applicant was also informed that the author of the book would not permit any amendments to the text and that, at the author’s request, the Ministry had transferred copyright of the book to him.", "18. On 4 February 2002 the applicant sent letters to the Ministry of Culture and to Associate Professor Ali Rafet Özkan, repeating his initial request. He received no reply.", "19. Subsequently, on 30 April 2002 the applicant brought proceedings in his own name against the Ministry of Culture and the author of the book before the Ankara Civil Court of General Jurisdiction, claiming compensation for the non-pecuniary damage he had sustained on account of the remarks contained in the book. He alleged that these remarks constituted an attack on his identity as a Roma/Gypsy and were insulting. The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned.", "20. The author of the book submitted, in reply, that his reference materials had been the records of the Adana police headquarters and books written by other authors on Gypsies, and that he had not intended to insult or humiliate Gypsies. The author further stated that the passages referred to by the applicant should not be considered in isolation, but in the context of the whole book.", "21. On 24 September 2002 the Ankara Civil Court dismissed the applicant’s requests in so far as they concerned the author of the book. It considered that the book was the result of academic research, was based on scientific data and examined the social structures of Roma/Gypsies in Turkey. The first-instance court therefore held that the remarks in question did not insult the applicant. As to the applicant’s case against the Ministry, the Civil Court decided that it lacked jurisdiction and that the administrative courts were competent to decide on the applicant’s claim.", "22. On 25 October 2002 the applicant appealed. In his petition, he submitted that the book could not be considered as scientific research and that therefore the Ministry of Culture should not have published it.", "23. On 21 April 2003 the Court of Cassation upheld the judgment of the first-instance court. It noted that the remarks objected to by the applicant were of a general nature. It therefore found no grounds for concluding that they concerned all Roma/Gypsies or that they constituted an attack on the applicant’s identity.", "24. On 8 December 2003 a request by the applicant for rectification of the decision was dismissed.", "25. Subsequently, on an unspecified date the applicant initiated proceedings against the Ministry of Culture before the Ankara Administrative Court. He requested non-pecuniary compensation, alleging that the content of the book published by the Ministry of Culture had been offensive and insulting towards the Roma/Gypsy community. On 7 April 2004 the Administrative Court dismissed the applicant’s case. It held that before its publication the book in question had been examined by a rapporteur appointed by the publications advisory board. Following his approval, the advisory board had agreed to publish the book. In the wake of the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. The applicant did not appeal against this decision.", "B. Application no. 41029/04", "26. In 1991 and 1998 respectively the Language Association, a non-governmental organisation, published two dictionaries entitled Turkish Dictionary for Pupils ( Öğrenciler için Türkçe Sözlük ) and Turkish Dictionary ( Türkçe Sözlük ). Apart from their titles, both dictionaries had exactly the same content. The publication of these dictionaries was part-financed by the Ministry of Culture.", "27. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Roma/Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionaries were insulting to and discriminatory against Roma/Gypsies.", "28. On page 279 of both dictionaries, the following entries were made regarding the word “Gypsy” ( çingene ):", "“‘Gypsy’ ( Çingene ): 1. an ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world. 2. (metaphorically) miserly.", "‘Gypsy debt’ ( Çingene borcu ): an unimportant debt which consists of several small debts.", "‘Gypsy plays Kurd dances’ ( Çingene çalar Kürt oynar ): a place where there is a lot of commotion and noise.", "‘Gypsy tent’ ( Çingene çergesi ) (metaphorically): a dirty and poor place.", "‘Gypsy wedding’ ( Çingene düğünü ): a crowded and noisy meeting.", "‘Gypsy fight’ ( Çingene kavgası ): a verbal fight in which vulgar language is used.", "‘Gypsy money’ ( Çingene parası ): coins.", "‘Gypsy pink’ ( Çingene pembesi ): pink.", "‘Gypsy language’ ( Çingenece ): language used by Gypsies.", "‘Gypsiness’ ( Çingenelik ): 1. being a Gypsy 2. (metaphorically) being miserly or greedy.", "‘Becoming a Gypsy’ ( Çingeneleşmek ): displaying miserly behaviour.”", "29. In the applicant’s opinion, the entries regarding the Gypsy community had negative, discriminatory and prejudiced connotations. The applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request, and likewise asked the Language Association to correct the above-mentioned definitions and to remove any discriminatory expressions from the dictionaries. He received no reply to his letter.", "30. Subsequently, on 15 July 2002 the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002.", "31. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the above-mentioned definitions and expressions be removed from the dictionaries. The applicant also requested compensation for the non-pecuniary damage he had sustained on account of the expressions contained in the dictionaries. In that connection he alleged that the dictionary definitions constituted an attack on his identity as a Roma/Gypsy and an insult to him personally.", "32. In its submissions in reply, the Language Association maintained, inter alia, that the definitions and expressions contained in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further submitted that the dictionaries contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks.", "33. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias.", "34. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003.", "III. DOCUMENTS OF THE EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE (ECRI)", "38. In its fourth report on Turkey (CRI(2011)5), published on 8 February 2011, ECRI welcomed the fact that in order to discourage negative stereotyping, connotations which might have been perceived as discriminatory in the dictionary definition of the term “Gypsy” had been removed. It further encouraged the Turkish authorities to pursue and strengthen their efforts to combat negative stereotyping of the Roma and to build a constructive dialogue with the Roma community.", "39. In its General Policy Recommendation No. 10 on combating racism and racial discrimination in and through school education, adopted on 15 December 2006, ECRI also recommended that member States ensure that school education played a key role in the fight against racism and racial discrimination in society “by promoting critical thinking among pupils and equipping them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they [used]”." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Civil Code", "35. Article 24 of the Civil Code reads as follows:", "“Any person whose personal rights are unlawfully infringed may apply to a judge for protection against all those causing the infringement.", "An infringement is unlawful unless it is justified by the consent of the person whose rights have been infringed or is made necessary by an overriding private or public interest or by law.”", "Furthermore, according to Article 25 of the Civil Code:", "“A claimant may ask a judge to prevent a threat of infringement, to order the cessation of an ongoing infringement or to establish the unlawfulness of such an infringement even where it has already ceased.", "In addition to such action the claimant may also request that the rectification or the judgment be published or served on third parties.", "...”", "B. Criminal Code", "36. Article 312 § 2 of the former Criminal Code provided as follows:", "“Any person who incites others to hatred or hostility on the basis of a distinction between social class, race, religion, denomination or region shall, on conviction, be liable to between one and three years’ imprisonment and to a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by between one third and one half.”", "37. On 1 June 2005 a new Criminal Code (Law no. 5237) came into force. Article 216 of the new Code provides as follows:", "“1. Any person who publicly provokes hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, sect or regional differences, such as to create a clear and close danger to public safety, shall be sentenced to a term of imprisonment of one to three years.", "2. Any person who publicly denigrates a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a term of imprisonment of six months to one year.", "...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "40. The applicant alleged that the book The Gypsies of Turkey and the dictionaries referred to in paragraphs 26 to 28 above contained expressions and definitions which offended his Roma/Gypsy identity.", "41. The Government disputed this claim.", "A. As to whether the applications should be examined under Article 8 or under Article 14 of the Convention taken in conjunction with Article 8", "42. The Grand Chamber observes that the Chamber examined the applicant’s complaints under Article 14 of the Convention taken in conjunction with Article 8. These provisions read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "43. The Grand Chamber reiterates that the Court is the master of the characterisation to be given in domestic law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). Discrimination for the purposes of Article 14 of the Convention means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. There will be no objective and reasonable justification if the difference in treatment does not pursue a “legitimate aim” or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, amongst many other authorities, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).", "44. The Court observes that discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII, and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII). The Court further notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority. As the Court has noted in previous cases, they therefore require special protection (see D.H. and Others, cited above, § 182).", "45. The Court observes that in the present case the applicant, who is of Roma origin, argued that a book and two dictionaries that had received government funding included remarks and expressions that reflected anti-Roma sentiment. He considered that these statements constituted an attack on his Roma identity. However, the Court observes that the case does not concern a difference in treatment, and in particular ethnic discrimination, as the applicant has not succeeded in producing prima facie evidence that the impugned publications had a discriminatory intent or effect. The case is therefore not comparable to other applications previously lodged by members of the Roma community (see, regarding education, ibid., §§ 175 ‑ 210; regarding housing, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001 ‑ I; and, regarding elections, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 45, ECHR 2009). Accordingly, the main issue in the present case is whether the impugned publications, which allegedly contained racial insults, constituted interference with the applicant’s right to respect for his private life and, if so, whether this interference was compatible with the said right. The Court will therefore examine the present case under Article 8 of the Convention only.", "B. The Government’s preliminary objection", "1. The parties’ submissions", "(a) The Government", "46. The Government contested the applicant’s victim status in both applications, arguing that they were actio popularis applications. According to the Government, the applicant had failed to show that he had been directly affected by the impugned remarks and expressions.", "(b) The applicant", "47. The applicant alleged that because of his Roma/Gypsy origins, the debasing remarks and expressions contained in the book and dictionaries had caused him pecuniary and non-pecuniary damage. He therefore considered himself to have victim status under Article 34 of the Convention.", "(c) The third party", "48. The Greek Helsinki Monitor stated that any member of an ethnic group allegedly targeted by generally discriminatory expressions based on race had the status of victim, as such expressions created prejudice against every member of that group. They further stated that the Court’s protection should be no less than that afforded under the domestic system: where a person’s victim status had been recognised domestically, it should not be refused by the Court.", "2. The Chamber judgment", "49. The Chamber observed that although the applicant had not been directly targeted in person in either the book or the dictionaries in question, he had been able to initiate compensation proceedings and to argue the merits of his case before the domestic courts under the domestic legislation, namely Articles 24 and 25 of the Civil Code (see paragraph 35 above). As a result, the Chamber considered that the applicant had victim status under Article 34 of the Convention.", "3. The Court’s assessment", "50. The Court reiterates that in order to be able to lodge a petition by virtue of Article 34 of the Convention, a person, non-governmental organisation or group of individuals must be able to claim to be a victim of a violation of the rights set forth in the Convention. To claim to be a victim of such a violation, a person must be directly affected by the impugned measure: the Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Burden, cited above, § 33, and Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).", "51. Consequently, the existence of a victim who was personally affected by an alleged violation of a Convention right is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid and inflexible way (see Bitenc v. Slovenia (dec.), no. 32963/02, 18 March 2008). The question of whether the applicant can claim to be a victim of the alleged violation of the Convention is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002 ‑ III).", "52. The Court reiterates that it interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000 ‑ XI), even though the Court should have regard to the fact that an applicant was a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009).", "53. The Court observes that in the present case the applicant, who is of Roma origin, complained about remarks and expressions which allegedly debased the Roma community. It is true that the applicant was not personally targeted; he could, however, have felt offended by the remarks concerning the ethnic group to which he belonged. Furthermore, there was no dispute in the domestic proceedings regarding the applicant’s standing before the court. Hence, the merits of his case were examined at two levels of jurisdiction.", "54. In view of the foregoing and given the need to apply the criteria governing victim status in a flexible manner, the Court accepts that the applicant, although not directly targeted by the contested passages, can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government’s preliminary objection that the applicant lacked victim status.", "C. The merits of the case", "1. Application no. 4149/04", "(a) The parties’ submissions", "(i) The applicant", "55. The applicant alleged that certain passages of the book The Gypsies of Turkey contained remarks and expressions which debased the Roma community. In particular, he referred to the chapter of the book which provided information about the lifestyle of the Roma people living in certain cities in Turkey, and in particular their alleged involvement in illegal activities (see paragraph 12 above). According to the applicant, the author’s overall intention was not important, as these passages in themselves constituted a clear insult to the Roma community. He also expressed his dissatisfaction with the domestic court decisions dismissing his compensation request.", "(ii) The Government", "56. The Government stated that the book had been published by the Ministry of Culture on the recommendation of the publications advisory board. According to the report of the advisory board, the book in question was a piece of comparative academic research which had been prepared as a contribution to ethnic studies in Turkey. It gave information about the origins of the Roma community, their language, traditions, beliefs, festivals, cuisine, clothing, music and living conditions. The Government stated that, following the applicant’s objection, the book had been examined once again by a number of university professors, who reported that it did not include any insulting statements. Finally, the Government submitted that the Ministry of Culture was working hard to promote Roma culture and traditions.", "(b) The Chamber judgment", "57. The Chamber held that although the passages and remarks cited by the applicant, read on their own, appeared to be discriminatory and insulting, when the book was examined as a whole it was not possible to conclude that the author had acted in bad faith or had any intention to insult the Roma community. The Chamber had particular regard to the conclusion to the book, in which the author had made it clear that The Gypsies of Turkey was an academic study which conducted a comparative analysis and focused on the history and socio-economic living conditions of the Roma people in Turkey. The Chamber concluded that the author had referred to the biased portrayal of the Roma in order to demonstrate the perception of the Roma community by the public. As a result, the Chamber found no violation of the applicant’s rights as protected by the Convention.", "(c) The Court’s assessment", "(i) Applicability of Article 8 of the Convention", "58. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.", "59. Furthermore, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Tavlı v. Turkey, no. 11449/02, § 28, 9 November 2006, and Ciubotaru, cited above, § 50).", "60. Turning to the circumstances of the present case, the Court notes that the applicant, who is of Roma origin, felt offended by certain passages of the book The Gypsies of Turkey, which focused on the Roma community. He therefore initiated civil proceedings against the author of the book and the Ministry of Culture (see paragraphs 19-25 above). As a result, what is at stake in the present case is a publication allegedly affecting the identity of a group to which the applicant belonged, and thus his private life. The Court further notes that although The Gypsies of Turkey was published by the Ministry of Culture (see paragraph 10 above), the latter subsequently returned the copyright to the author of the book (see paragraph 17 above). Moreover, the applicant did not lodge an appeal against the decision of the Ankara Administrative Court dismissing his administrative complaint against the Ministry of Culture (see paragraph 25 above). He therefore did not pursue his case against the State authorities for their involvement in the publication in issue.", "61. Under these circumstances, the Court is of the opinion that the main question raised in the present application is not whether there was direct interference by the domestic authorities with the private life of the applicant, but rather whether the Government complied with their positive obligation under Article 8 to protect the applicant’s private life from alleged interference by a third party, namely the author of the book. In other words the Court will seek to ascertain whether, in the light of Article 8 of the Convention, the Turkish courts ought to have upheld the applicant’s civil claim by awarding him a sum in respect of non-pecuniary damage and banning the distribution of the book.", "(ii) Compliance with Article 8 of the Convention", "(α) General principles", "62. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, amongst many other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290; Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998 ‑ I; and Gurgenidze v. Georgia, no. 71678/01, § 38, 17 October 2006).", "63. In cases like the present one where the complaint is that rights protected under Article 8 have been breached as a consequence of the exercise by others of their right to freedom of expression, due regard should be had, when applying Article 8, to the requirements of Article 10 of the Convention (see, for instance and mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 58, ECHR 2004 ‑ VI). Thus, in such cases the Court will need to balance the applicant’s right to “respect for his private life” against the public interest in protecting freedom of expression, bearing in mind that no hierarchical relationship exists between the rights guaranteed by the two Articles (see Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010).", "64. In this context the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society (see, amongst many authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Reinboth and Others v. Finland, no. 30865/08, § 74, 25 January 2011). This freedom is subject to the exceptions set out in Article 10 § 2 which must, however, be strictly construed. The need for any restrictions must therefore be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII).", "65. Under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether an interference with the right to freedom of expression was “necessary in a democratic society”. However, this margin goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001 ‑ I; Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003 ‑ I; and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004 ‑ X). The Court’s task in exercising its supervision is not to take the place of the national authorities but rather to review, in the light of the case as a whole, the decisions that they have taken pursuant to their margin of appreciation (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010).", "66. In similar cases the Court therefore attached significant weight to the fact that the domestic authorities had identified the existence of conflicting rights and the need to ensure a fair balance between them (see, for instance and mutatis mutandis, Tammer, cited above, § 69; White v. Sweden, no. 42435/02, § 27, 19 September 2006; Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009; Lappalainen v. Finland (dec.), no. 22175/06, 20 January 2009; and Papaianopol v. Romania, no. 17590/02, § 30, 16 March 2010).", "67. If the balance struck by the national judicial authorities is unsatisfactory, in particular because the importance or the scope of one of the fundamental rights at stake was not duly considered, the margin of appreciation accorded to the decisions of the national courts will be a narrow one. However, if the assessment was made in the light of the principles resulting from its well-established case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts, which consequently will enjoy a wider margin of appreciation (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Von Hannover v. Germany (no. 2 ) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).", "68. All of this presupposes that an effective legal system was in place and operating for the protection of the rights falling within the notion of “private life”, and was available to the applicant (see Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009). This must also be examined by the Court.", "(β) Application of these principles to the present case", "69. In the present case the domestic courts were called upon to strike a fair balance between the applicant’s rights under Article 8 of the Convention as a member of the Roma community and the freedom of the author of the book in issue to carry out academic/scientific research on a specific ethnic group and publish his findings. The applicant claimed that the book, and in particular the chapter providing information about the living conditions of Roma in different cities of Turkey, constituted an insult towards the Roma community. In dismissing this claim at two levels of jurisdiction the Turkish courts relied, inter alia, on a report prepared by seven university professors which found that the book in dispute was an academic study based on scientific research (see paragraph 25 above). They considered that the remarks and expressions were not insulting, were of a general nature, did not concern all Roma and did not constitute an attack on the applicant’s identity (see paragraphs 21 and 23 above). Moreover, the Ankara Civil Court of General Jurisdiction found that the book examined the social structure of the Turkish Roma/Gypsy community and was based on scientific data (see paragraph 21 above).", "70. In the Court’s opinion, these conclusions cannot be considered to be unreasonable or based on a misrepresentation of the relevant facts. In this connection it is important to note, that while the author pointed to certain illegal activities on the part of some members of the Roma community living in particular areas, nowhere in the book did he make negative remarks about the Roma population in general or claim that all members of the Roma community were engaged in illegal activities. Furthermore, in different parts of the book, namely in the preface, introduction and conclusion, the author emphasised in clear terms that his intention was to shed light on the unknown world of the Roma community in Turkey, who had been ostracised and targeted by vilifying remarks based mainly on prejudice (see paragraphs 10-11 and 13 above). In view of the foregoing, and in the absence of any evidence justifying the conclusion that the author’s statements were insincere, it was not unreasonable for the domestic courts to hold that he had put effort into his work and had not been driven by racist intentions (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, § 36, Series A no. 298).", "71. Moreover, despite the somewhat laconic manner in which some of them were expressed, the reasons put forward by the domestic courts in support of their conclusions were in keeping with the principles set forth in the Court’s case-law. In particular, the Turkish courts attached importance to the fact that the book had been written by an academic and was therefore to be considered as an academic work. In recent judgments, the Court has also stressed the importance of such works (see Sorguç v. Turkey, no. 17089/03, §§ 21-35, 23 June 2009, and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings.", "72. It is also in line with the Court’s approach to consider the impugned passages not in isolation but in the context of the book as a whole and to take into account the method of research used by the author of the publication. In this connection the Court observes that the latter explained that he had collected information from members of the Roma community, local authorities and the police. He also stated that he had lived with the Roma community to observe their lifestyle according to scientific observation principles (see paragraph 11 above).", "73. Moreover, it is to be noted that an effective legal system was operating for the protection of the rights falling within the notion of “private life” and was available to the applicant in the present case (see paragraph 68 above). The applicant was able to bring his case before two levels of jurisdiction and obtained reasoned decisions dealing with his claim. Furthermore, when he lodged a complaint with the Ministry of Culture, as a precautionary measure the Ministry ordered the withdrawal of the remaining 299 copies of the book, and the copyright was returned to the author at the latter’s request (see paragraphs 15 and 17 above).", "74. In the light of the above, the Court is satisfied that in balancing the conflicting fundamental rights under Articles 8 and 10 of the Convention, the Turkish courts made an assessment based on the principles resulting from the Court’s well-established case-law.", "75. The Court would nonetheless reiterate that the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman, cited above, § 96, and D.H. and Others, cited above, § 181). The Court also agrees with the conclusions of ECRI (see paragraph 38 above) that the Government should pursue their efforts to combat negative stereotyping of the Roma.", "76. It follows from the considerations set forth above that in the present case the Turkish authorities did not overstep their margin of appreciation and did not disregard their positive obligation to secure to the applicant effective respect for his private life.", "77. Consequently, there has been no violation of Article 8 in respect of application no. 4149/04.", "2. Application no. 41029/04", "(a) The parties’ submissions", "(i) The applicant", "78. The applicant alleged that the expressions contained in the two impugned dictionaries printed by the Turkish Language Association were insulting towards the Roma/Gypsy community. In particular, he referred to the term “becoming a Gypsy” which was defined as “displaying miserly behaviour”, and submitted that such insulting definitions should be removed from the dictionaries.", "(ii) The Government", "79. The Government stated that the words and expressions contained in the dictionaries were based on historical and sociological facts and that there was no intention to debase the Roma community. They further informed the Court that the Ministry of Culture had made a financial contribution of 2,700 euros in total to the publication of the dictionaries in 1991 and 1998. However, the Government stressed that the dictionary for pupils was not a school textbook and that it was not distributed to schools or recommended by the Ministry of Education as part of the school curriculum. Finally, they pointed out that these dictionaries had not been reprinted and were actually out of print.", "(b) The Chamber judgment", "80. The Chamber had regard in particular to the fact that the definitions provided in the dictionaries had been prefaced with the comment that their use was “metaphorical”. It therefore found that these expressions could not be considered as harming the applicant’s ethnic identity. As a result, the Chamber found no violation of Article 8 of the Convention.", "(c) The Court’s assessment", "81. The Court notes at the outset that the applicant considered himself to be the victim of negative stereotyping on account of some of the entries contained in the impugned dictionaries. Article 8 of the Convention is therefore applicable, for the reasons set forth in paragraph 60 above. The Court further observes that, although the publication of the dictionaries in issue was part-financed by the Ministry of Culture, the applicant merely brought a civil action against the Language Association, a non-governmental organisation, and did not bring any administrative proceedings against the Ministry in the domestic courts (see paragraphs 31 ‑ 34 above). Therefore, as with application no. 4149/04 (see paragraphs 60-61 above), the Court will examine, in the light of the general principles set forth in paragraphs 62 to 68 above, whether the Government complied with their positive obligation under Article 8 to protect the applicant’s private life from alleged interference by a third party, namely the Language Association.", "82. In rejecting the applicant’s claim, the Ankara Civil Court observed that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase the Roma community. It further noted that there were similar expressions in Turkish concerning other ethnic groups, which appeared in dictionaries and encyclopaedias (see paragraph 33 above).", "83. Thus, the domestic court examined the impugned entries in order to ascertain whether they had unlawfully interfered with the applicant’s rights under Article 8 of the Convention. In doing so, it applied the principles laid down in the Court’s case-law (see paragraph 66 above).", "84. In this connection the Court observes that a dictionary is a source of information which lists the words of a language and gives their various meanings, the basic one being simply descriptive or literal, while others may be figurative, allegorical or metaphorical. It reflects the language used by society. In both dictionaries the literal definition of the word “ çingene ” (“Gypsy”) was given on page 279. It is therefore clear that these dictionaries were substantial in volume and were meant to cover the entire Turkish language. The Court also notes the first definition of the word “Gypsy” given by the said dictionaries, which reads: “[A]n ethnic group or person belonging to an ethnic group originating from India, whose members lead a nomadic way of life and are widely dispersed in the world.” As a second meaning, it was stated that, in the metaphorical sense, the word “Gypsy” also meant “miserly” (see paragraph 28 above). On the same page, the dictionaries gave further definitions of certain expressions regarding the Gypsies, such as “Gypsy money” and “Gypsy pink”. The Court notes in this connection that, as explained by the Ankara Civil Court, these expressions are part of spoken Turkish.", "85. It is true that, although they had the same content, the dictionaries had different target groups, as the second dictionary’s title was Turkish Dictionary for Pupils. It is clear that in a dictionary aimed at pupils, more diligence is required when giving the definitions of expressions which are part of daily language but which might be construed as humiliating or insulting. In the Court’s view, it would have been preferable to label such expressions as “pejorative” or “insulting”, rather than merely stating that they were metaphorical. Such a precaution would also be in line with ECRI’s General Policy Recommendation No. 10, which stipulates that States should “[promote] critical thinking among pupils and [equip] them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [the] material they use” (see paragraph 39 above).", "86. However, this element alone is insufficient for the Court to substitute its own view for that of the domestic courts, having regard also to the fact that the impugned dictionary was not a school textbook and that it was not distributed to schools or recommended by the Ministry of Education as part of the school curriculum (see paragraph 79 above).", "87. Finally, the Court observes that the applicant’s case against the Language Association was examined at two levels of jurisdiction in the domestic courts (see paragraphs 31-34 above). Although ultimately his case was dismissed, the Court is satisfied that the applicant was provided with an effective means of redress, as required by Article 8 of the Convention.", "88. In view of the foregoing, the Court considers that the domestic authorities did not overstep their margin of appreciation and did not disregard their positive obligation to secure to the applicant effective respect for his private life.", "89. Consequently, there has been no violation of Article 8 of the Convention in respect of application no. 41029/04." ]

[ "2. The applicant was born in 1956 and lived in Gyöngyöspata. He was represented by Ms S. Kapronczay, a lawyer practising in Budapest.", "3. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.", "4. On 8 April 2015 the applicant died. On 1 September 2016 his son, Mr L.F. junior, expressed his wish to pursue the application in his stead. On 12 October 2016 the applicant’s wife, Mrs L.F., and his two other children, Ms I.F. and Mr M.F. also expressed their wish to pursue the application in the applicant’s stead.", "5. The facts of the case, as submitted by the parties, may be summarised as follows.", "6. Following anti-Roma demonstrations and paramilitary marches in Gyöngyöspata (see, for example, R.B. v. Hungary, no. 64602/12, 12 April 2016) the mayor of the municipality resigned and a politician of the Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom ), J.J.O., was elected in his place as of July 2011. During his tenure, tensions between Roma and non-Roma inhabitants increased. One of the measures he adopted was the so-called “Érpatak model”, which referred to a social scheme established by the mayor of Érpatak based on the idea that social benefits should only be paid to residents who contribute to the development of the community and respect law and order, rather than to those who are “destructive”.", "7. It appears that in their preparation to introduce a similar scheme in Gyöngyöspata, on 13 October 2011 the mayor, the chief councillor of the mayor’s office and the chief of cabinet, a person privately contracted by the mayor’s office turned up at the applicant’s house, accompanied by police officers. The police stayed outside, while the others went inside and inspected and measured every room in the applicant’s flat. It is also alleged that video recordings were made of the interior, although this was later contested by the authorities. The applicant was not informed of the purpose of the visit. His wife and children were also present at the time.", "8. According to a report by the Parliamentary Commissioner for the Rights of National and Ethnic Minorities, other Roma families were also subjected to similar inspections in Gyöngyöspata in October 2011. The Commissioner was of the view that the practice in question appeared to have no legal basis and invited the Heves County Governmental Office ( Heves Megyei Kormányhivatal ) to conduct a thorough investigation into the home inspections and take the necessary steps in order to restore legality and prevent similar breaches of the law in the future (see paragraph 29 below).", "9. On 19 October 2011 the applicant filed a criminal complaint concerning the inspection of his home, alleging unlawful entry into private property.", "10. Responding to the police inquiry, the mayor’s office submitted that the aim of the inspection, carried out by the mayor, the chief counsellor and officer responsible for social and guardianship affairs, and the chief of cabinet of law enforcement, had been to verify whether the applicant’s home complied with the requirements of Government Decree no. 253/1997 (XII.20) on National Urban Planning and Construction ( OTÉK ). Section 85(4)(a) of that Decree stipulates that each room should have at least 15 cubic meters of air per person. The mayor’s office also added that the applicant’s wife was in receipt of a monthly housing benefit from the local municipality, and the secondary aim of the inspection had been to verify the family’s living conditions. It was further submitted that the representatives of the municipality had been accompanied by two police officers, who had not entered the applicant’s house.", "11. On 23 November 2011 the Gyöngyös police department dismissed the complaint for the absence of evidence that an offence had been committed, given that the applicant had not asked the mayor and his colleagues to leave his home, which would have been the precondition for establishing illegality. In any event, the police department accepted that the measure was based on section 85(4)(a) OTÉK and, in addition, had been necessary since the applicant’s wife had been in receipt of housing benefit from the municipality.", "12. On 12 December 2011 the applicant objected to the dismissal of his criminal complaint, arguing that the offence within the meaning of Article 176 of the Criminal Code (unlawful entry into private property) could also be committed by someone pretending to conduct an official procedure, in which case it was unreasonable to require the victim to object to the intrusion. Therefore, the applicant took the view that the investigation should verify whether there had been a genuine official procedure behind the visit, or whether it had been spurious.", "13. On 21 December 2011 the Gyöngyös public prosecutor’s office dismissed the objection, finding the impugned decision lawful and duly reasoned. It reiterated that the officials had entered the applicant’s home pursuant to section 85(4)(a) OTÉK.", "14. On 16 January 2012 the applicant requested the Heves County Governmental Office to examine the procedure and verify, in particular, whether the persons who had entered and inspected his home had been legally entitled to do so.", "15. On 17 May 2012 the Heves County Governmental Office found that on 13 October 2011 there had been no pending procedures in the framework of which the delegation of the mayor’s office could have lawfully entered the applicant’s home. The Governmental Office also informed the applicant that the fulfilment of the OTÉK requirement concerning the cubic content of air in rooms could only be verified in the framework of specific building control procedures which did not fall within the competence of local government. It further noted that, although it had obtained all relevant documents from the Gyöngyöspata local government concerning the housing benefit paid to the family, there did not appear to have been any decision adopted after July 2011 to assess the applicant’s family’s eligibility for that benefit.", "16. On 29 May 2012 the Heves County Governmental Office issued a reply to the Parliamentary Commissioner’s report concerning its findings concerning the municipality’s conduct (see paragraph 30 below). It held, inter alia, that OTÉK could not be relied on for the inspection in question and that there had been no ongoing procedures on 13 October 2011 in respect of the applicant or his wife concerning the allocation of social benefits, since the last decision on the matter had been issued in July 2011.", "17. On the basis of that information, on 25 June 2012, the applicant filed another criminal complaint, alleging unlawful entry onto his private property on the basis of a spurious procedure, as well as abuse of authority. He drew the authorities’ attention to the perceptible racist motive behind the inspection, relying on the findings of the report by the Parliamentary Commissioner for the Rights of National and Ethnic Minorities (see paragraph 29 below).", "18. By decision of 23 July 2012, amended on 3 August 2012, the Gyöngyös police department dismissed the applicant’s complaint, noting that according to the inquiry carried out by the Governmental Office there had been no official procedures pending concerning the applicant which would have allowed the authorities to enter his home. Furthermore, the public notary could not specify the legal basis for carrying out a home inspection in order to verify its conformity with OTÉK. The police department nonetheless held that the offence of unlawful entry onto private property could only be committed intentionally – if the alleged perpetrator was (mistakenly) persuaded to have the necessary entitlement or consent of the victim, there could be no criminal liability. As regards the alleged abuse of authority, the Gyöngyös police department transferred the case to the county police department.", "19. On 6 August 2012 the applicant challenged the decision of the Gyöngyös police department, maintaining that the conduct in question had constituted unlawful entry into his private property on the pretence of conducting an official procedure. He relied on the findings of the Parliamentary Commissioner’s report.", "20. On 22 August 2012 the Gyöngyös public prosecutor’s office ordered an investigation into the applicant’s criminal complaint. The decision stated that the main question to be answered during the investigation was whether the persons concerned had been aware of the lack of a legal basis for entering the applicant’s flat, since “unlawful entry into private property” could only be committed intentionally. The Gyöngyös police department requested its exclusion from the case in the light of the regular contact between the police officers in Gyöngyös and the mayor and his colleagues. The investigation was thus conducted by the Hatvan police department.", "21. On 28 May 2013 the Hatvan police department discontinued the investigation. It found that the inspection of the applicant’s home had related to a request for housing benefit submitted by the applicant’s wife on 5 July 2011 and granted on 31 July 2011. The police department noted that according to section 7 of decree no. 3/2009 (II. 2.) on Social Benefits, of the Assembly of the Local Government of Gyöngyöspata the provision of housing benefit required an on-site inquiry. Furthermore, section 8 of the decree authorised the mayor to reassess the allocation of social benefits. The police department thus concluded that the inspection had been carried out for the further provision of housing benefit.", "22. On 11 June 2013 the applicant objected to the discontinuation of the investigation. He alleged, in particular, that his wife’s request for housing benefit had already been granted on 31 July 2011. Therefore, there had not been any procedures pending in that case on 13 October 2011 – which information was also confirmed by the Heves County Government Office on 17 May 2012. He submitted that the persons present in his house had been acting in an official capacity and had thus entered his private property unlawfully on the pretence of conducting official proceedings.", "23. On 19 July 2013 the Gyöngyös public prosecutor’s office dismissed the applicant’s objection concerning the discontinuation of the investigation. It held, in essence, that the provisions of Decree no. 3/2009 (II. 2.) of the Assembly of the Local Government of Gyöngyöspata on Social Benefits concerning the method of calculating housing benefit had been amended on 28 September 2011, and section 8 of the decree empowered the mayor to review annually or as necessary the social benefits. The prosecutor’s office found it established, based on witness testimonies, that the on-site inquiry had been carried out not in connection with the provision of social benefits but to assess the conditions for the further payment of established social benefits, and it was the amendment to the calculation method which had made the home inspection necessary. Therefore, in the opinion of the prosecutor’s office, the impugned inspection did not constitute a criminal offence, even if it had not been conducted in full compliance with the provisions of Act no. CXL of 2004 on the General Rules of Administrative Proceedings and Services." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "24. Government Decree no. 253/1997 (XII.20) on National Urban Planning and Construction ( OTÉK ) provides as follows:", "Section 85", "Room dimensions", "“...", "(4) The volume of each premise – having regard to its capacity should be at least", "a) 15 m3/person in rooms, hospital rooms and in offices at workplaces.", "...”", "25. The relevant provisions of Act no. IV of 1978 on the Criminal Code, as in force at the material time, provided as follows:", "Unlawful entry into private property", "Article 176", "“(1) Any person who enters onto, or remains on, the home or other property or the confines attached to such, of another person by force, or by pretending to conduct an official procedure, is guilty of a minor offence punishable by imprisonment of up to two years.”", "26. Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities (hereafter “Equal Treatment Act”) provides, in its relevant part, as follows:", "Section 4", "Scope of the Act", "“The principle of equal treatment shall be observed by", "a) the Hungarian State,", "b) local and minority self-governments and the bodies thereof,", "c) organisations exercising powers as authorities,", "...”", "Harassment, unlawful segregation", "Section 10", "“(1) Harassment is conduct of a sexual or other nature violating human dignity related to the relevant person’s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person.", "...”", "Section 14", "“(1) The Authority", "(a) shall, at request or in cases defined herein ex officio, conduct investigations to establish whether the obligations of equal treatment have been violated, and shall also conduct investigations at request to establish whether the employers obliged to do so have approved an equal opportunities plan, and shall finally make decisions on the basis of the investigations;”", "Section 15", "“(1) A violation of the principle of equal treatment within the scope of this Act shall be investigated by", "a) the Authority or", "b) another public administration body that has been granted authority in a separate act for assessing violations of the principle of equal treatment, as chosen by the offended party", "...”", "Section 17/A", "“(1) If the Authority has established that the provisions ensuring the principle of equal treatment laid down herein have been violated, they may", "a) order that the situation constituting a violation of law be terminated,", "b) prohibit the further continuation of the conduct constituting a violation of law,", "c) order that its decision establishing the violation of law be published,", "d) impose a fine,", "e) apply a legal consequence determined in a special act.", "...”", "27. Act no IX of 1998 on the Criminal Procedure Code, as in force at the material time, provided as follows:", "The private party", "Section 54", "“1) The private party is the victim enforcing a civil claim in criminal proceedings.", "(2) The private party may enforce the civil claim against the defendant which arose as a consequence of the act being the subject of the accusation.", "...”", "28. The relevant provisions of Decree no. 3/2009(II.2.) on Social Benefits of the Assembly of the Local Government of Gyöngyöspata, as in force at the material time, provided as follows:", "Section 7", "“(1) Prior to the granting of benefits governed by the present decree, a social inquiry report should be made about the social situation of the applicant and his or her close relatives living in the same household.", "...", "(3) It is not necessary to make a social inquiry report if the applicant’s living conditions have been examined as part of any other procedure and there is no reason to believe that essential changes have occurred since that examination.”", "Section 8", "“Social benefits regulated under the decree are reviewed by the mayor annually or as it is needed.”", "29. The Report of the Parliamentary Commissioner for the Rights of National and Ethnic Minorities on public employment, minor offence proceedings, and education in Gyöngyöspata, published in December 2011, contains the following passages:", "“3.3 A peculiar phenomenon: “official inspections” in Gyöngyöspata", "“Several complainants mentioned during the on-site investigation that in mid ‑ October, a relatively large group of people visited Roma families in Gyöngyöspata with the intention of inspecting “the living environment and if the criteria for housing subsidy are met”. According to those concerned, the mayor, the municipal clerk, the mayor’s chief of cabinet, two social workers, and two policemen visited the families without prior announcement. First they reviewed the living environment from the outside and made a video recording, and then they all entered the homes in question, measured the size of the rooms and made video recordings. The chief of cabinet, G.P., confirmed the above, with the exception that the two policemen did not enter the homes and video recordings were not made within the homes. The chief of cabinet said that the objective of the proceedings was to evaluate the living environment of the residents concerned and to prepare for the introduction of the so-called ‘Érpatak model’. They wanted to assess how many persons habitually lived in a given flat. He also stated that this measure affected every local resident receiving housing subsidies, rather than only the Roma families. Since it was not clear to me what the aim and legal basis of these measures were, I have addressed two written requests to the public notary of Gyöngyöspata. I have also requested that documents, audio or video recordings of the procedure be sent to me. Unfortunately, I have not received an answer yet and can only express my opinion based on the partial information I have and on Decree no. 3/2009(II.2.) on Social Benefits of the Assembly of the Local Government of Gyöngyöspata. Section 30/A of the above decree enumerates the preconditions for the maintenance of house yards and gardens so as to qualify for unemployment allowances. Sub-section (2) of the same provision provides for an on-site inspection and states that the latter is the responsibility of the public notary, who conducts the inspection ‘with the involvement of a member of the Committee on communal development, environmental protection and public order’. The provisions of the decree on housing benefit do not refer to the special rules on on-site inspection. Thus, the legitimate justification of six or seven ‘public officials’ showing up at the families’ homes, inspecting their living conditions inside the house cannot be established.", "Section 57/A(4) of Act no. CXL of 2004 on the General Rules of Administrative Proceedings and Services provides for the recording of on-site inspections, objects, procedures. However it is questionable whether in the present case the authorities’ measures can be regarded as on-site inspections, which are subject to strict statutory rules.", "In order to carry out a successful and safe on-site inspection, section 57/B(1) allows for the presence of police officers, if the nature of the inspection so requires. In the circumstances of the present case, however, it is not clear what justified the presence of the police officers alongside the already large number of public officials.", "Irrespective of the legal basis of the measure, it can clearly be established that such an inspection, interfering with the private sphere and involving a high number of persons of authority, would be threatening not only to the residents of Gyöngyöspata, but to anyone else. However, in Gyöngyöspata, where those in power are the same forces that can be associated with the spring ‘law enforcement’ action, residents may have experienced this form of inspection as heightened intimidation or even as a form of reprisal.", "As mentioned above, in the absence of cooperation by the municipality, neither the legal basis nor the factual circumstances of the measures could be established. Therefore, I recommend that the Heves County Governmental Office should conduct an in-depth enquiry into the background and circumstances of the measure and take steps, if necessary, to re-establish legality and prevent further breaches of the law.", "...”", "30. On 29 May 2012 the Heves County Governmental Office issued a reply to the Commissioner’s request. It contained the following relevant passages:", "“...", "Our Office contacted the public notary of Gyöngyöspata to request the documents concerning the particular case and information as regards the nature of the administrative proceedings in which the on-site inspection had been conducted. We have further requested a copy of any local governmental decree that was applicable in the particular case.", "In his reply of 22 March the public notary informed us that [name] received housing benefit in 2006 and 2007. The public notary stated that the aim of the on-site inspection carried out at [address] on 13 October 2011 was to verify whether provisions of Government Decree no. 253/1997 (XII.20) on National Urban Planning and Construction ( OTÉK ). prescribing that in each room there should be at least 15 cubic meters of air per person had been respected. The public notary referred to the fact that [name] was in receipt of housing benefit, and thus the on-site inspection, to which the client had given his consent, had had the secondary aim of verifying whether the living environment had been tidy.", "The Heves County Governmental Office requested further information from the public notary in its letter of 28 March, as it had been established that OTÉK¸ as invoked by the public notary, was applicable during the construction of buildings and, additionally, the Government Office could not identify any legal provision which would have allowed the application of § 85 of OTÉK in any other procedure. The Governmental Office had further requested all the relevant documents, including the evidence of the client’s consent in the form of a public document.", "In his letter of 18 April the public notary stated that the on-site inspection had been carried out by J.J.O., the mayor of Gyöngyöspata, following a report that too many persons had been living at the address in question.", "On the basis of the information received from the public notary and of the documents at hand, the Governmental Office had established that on 13 October 2011 there had been no ongoing proceedings (either administrative or municipal) which would have allowed the employees of the mayor’s office to legally enter the premises in question. It can be clearly established that, in the absence of jurisdiction, the public notary does not have the power to verify compliance with the OTÉK. Based on the documents transmitted by the public notary, following the decision issued in July 2011, no documented procedural measures (inspection) had been taken place in the procedure concerning [name], and the file had contained no statement of consent. The public notary did not provide any legal provision or his professional point of view.", "The Government Office informed [name]’s legal representative about these findings. The legal representative was also informed that the Government Office, as the supervisory organ, had no power to remedy the infringement of the client’s right in the course of administrative proceedings. We have forwarded our findings to the mayor’s office and to the public notary of Gyöngyöspata with a request to verify whether labour proceedings should be initiated.", "...”", "In addition, the reply stated that the Government’s Office had initiated proceedings reviewing the legality of Decree no. 3/2009 (II. 2.) of the Assembly of the Local Government of Gyöngyöspata on Social Benefits. The Governmental Office established, inter alia, that the delegation of power to the mayor to decide on housing benefit had been unlawful. It had further been unlawful to make the provision of social benefits subject to the orderliness of the living environment and that this element could be verified with the involvement of a member of the Committee on communal development, environmental protection and public order. Since the municipality had not informed the Governmental Office of the planned measures, the supervisory body initiated proceedings before the Kúria. In the meantime, the municipality had repealed Decree no. 3/2009 and adopted new regulations.", "31. The relevant part of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation provides:", "Article 2", "Concept of discrimination", "“1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there must be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.", "...", "3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place for the purposes or with the effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.", "...”", "THE LAW", "preliminary ISSUE regarding locus standi of the applicant’s heirs", "32. The Government challenged the right of the heirs of the applicant, who had died in the course of the proceedings (see paragraph 4 above), to pursue the application in his stead. In their view, those heirs did not have a valid interest in obtaining a ruling by the Court, because, although the applicant had died on 8 April 2015, they had not contacted the applicant’s representative until 1 September and 12 October 2016, respectively, to express their intention to pursue the application before the Court in the applicant’s stead. In the Government’s view, the heirs had only requested the Court to continue examining the application because the applicant’s representative had persuaded them to do so. They invited the Court to strike the case out of its list of cases under Article 37 § 1 of the Convention.", "33. The applicant’s representative did not comment on that point.", "34. The Court notes that on 1 September and 12 October 2016 the applicant’s representative informed the Court that the applicant had died on 8 April 2015 and that his heirs wished to continue in his stead the proceedings before the Court. The applicant’s representative also submitted a succession certificate. Thus, in the present case, the request to pursue the proceedings was submitted by persons who had the status as both direct heirs and very close relatives of the deceased applicant.", "35. It is true that under Article 34 the existence of a victim of a violation is indispensable for the Convention’s protection mechanism to be put in motion. However, this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the proceedings. The Court’s approach to cases introduced by applicants themselves and only continued by their relatives after their deaths differs from its approach to cases in which the application has been lodged after the death of the direct victim. Moreover, the transferability or otherwise of the applicant’s claim is not always decisive, for it is not only material interests which the successors of deceased applicants may pursue by their wish to maintain the application. Cases before the Court generally also have a moral or principled dimension, and persons close to an applicant may thus have a legitimate interest in obtaining a ruling even after that applicant’s death (see Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 73, ECHR 2012 (extracts), with further references).", "36. The Court considers that Mr L.F.’s widow and children have a legitimate interest in obtaining a ruling on whether the inspection carried out in the applicant’s home by the authorities constituted a breach of the right to respect for home, the right to an effective remedy and the prohibition of discrimination, on which he had relied in his application. The Court therefore considers that the conditions for striking the case out of the list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at the heirs’ request. However, for practical purposes, reference will still be made to the applicant throughout the ensuing text.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "37. The applicant complained that the inspection of his home had been unlawful and carried out in breach of his right to respect for his “home” and that the Hungarian authorities had failed properly to investigate this incident. He relied on Articles 8 and 13 of the Convention. The Court considers that the above complaint falls to be examined under Article 8 of the Convention which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for ... his home ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityThe Court’s jurisdiction ratione personae", "The Court’s jurisdiction ratione personae", "The Court’s jurisdiction ratione personae", "(a) The parties’ submissions", "38. The Government requested the Court to declare the application inadmissible rationae personae with the provisions of the Convention. In their view, the domestic authorities had acknowledged the violation of the applicant’s rights under Article 8 of the Convention, given that both the Parliamentary Commissioner (see paragraph 8 above) and the Heves County Governmental Office (see paragraph 15 above) acknowledged that the provisions of the municipal decree underlying the authorities’ actions had been unlawful. Moreover, by amending the decree in question, the necessary measures had been taken to prevent future violations.", "39. The applicant maintained that the report of the Parliamentary Commissioner had contained no binding ruling concerning his case and that the actions taken by the Heves County Governmental Office before the Kúria were directed against the provisions of the municipal decree that had had no bearing on his case, since they had not been in force at the material time and concerned a different kind of social benefit.", "(b) The Court’s assessment", "40. The Court recalls that the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010). A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI).", "41. The Court observes that while it is true that the report of the Parliamentary Commissioner and the inquiry of the Heves County Governmental Office both concluded that the conduct of the municipal authorities had lacked a legal basis or that their practice based on legal provisions invoked by those authorities had been unlawful (see paragraphs 8, 15, 29 and 30 above), they did not contain any element establishing that the applicant’s right to respect for his home had been infringed. It is also relevant that the Governmental Office itself held that it had no power to remedy the infringement of the applicant’s right in the course of administrative proceedings (see paragraph 30 above). In these circumstances, the Court considers that the statements relied on by the Government were not such as to redress the alleged violation of the applicant’s rights under Article 8 of the Convention and to deprive him of his victim status. The application therefore cannot be rejected as being incompatible ratione personae with the provisions of the Convention.", "The Government’s objections regarding non-exhaustion of domestic remedies and failure to respect the six-month time-limit", "(a) The parties’ submissions", "42. The Government requested the Court to declare this complaint inadmissible for failure to exhaust domestic remedies. Firstly, they submitted that the applicant should have pursued substitute private prosecution proceedings. In the Government’s submission, the criminal complaint lodged by the applicant had constituted an effective remedy only in respect of the allegedly unlawful entering onto his property but could not be regarded as an effective remedy for the domestic authorities’ alleged failure to carry out an effective investigation. Substitute private prosecution was not an alternative to a criminal complaint, since it had been conceived specifically to redress alleged errors in criminal investigations. It could also help protect victims’ rights by obtaining further evidence and allowing the victim to present his legal position, independently from the standpoint of the public prosecutor. Furthermore, had the applicant availed himself of this legal avenue he could have further challenged the decision of the courts before the Constitutional Court by means of a constitutional complaint.", "43. They also argued that the allegedly low success rate of substitute private prosecution proceedings (see paragraph 47 below) did not mean that this procedure was inefficient, since the dismissal of such applications was mainly due to non-compliance with the formal requirements of private prosecution. Besides, pursuant to a study carried out between 2003 and 2010 the most frequent reason for the discontinuation of proceedings had been the withdrawal of complaints by the substitute private prosecutor.", "44. The Government contested the applicant’s arguments concerning fear of retribution (see paragraph 47 below). They pointed out that no charges could be brought against a person for falsely initiating substitute private prosecution proceedings, and substitute private prosecutors were not required to be present when the defendants were being heard before the courts.", "45. They further maintained that the applicant could have initiated civil proceedings seeking damages for the alleged unlawful actions of public authorities or for the violation of his personality rights. The aim of such civil proceedings would not have been to establish criminal responsibility but to provide compensation for the alleged breach of the applicant’s rights. By submitting a criminal complaint only, the applicant had deprived himself of an effective legal remedy providing compensation for the alleged violation of his rights under Article 8.", "46. Lastly, Government requested that the Court declare this complaint inadmissible inasmuch as it had been directed against the discontinuation of the investigation into the alleged abuse of authority, since the applicant had failed to lodge his complaint within the six-month time-limit provided for in Article 35 § 1 of the Convention. They submitted that the six-month time ‑ limit had started to run on 3 August 2012, the date of the termination of the criminal investigations into this crime, which the applicant had not challenged subsequently.", "47. The applicant, for his part, submitted that substitute private prosecution proceedings would not have provided an effective remedy affording redress, in particular given the difficulties in obtaining evidence and in taking other investigation measures. He argued that the low success rate of substitute private prosecution proceedings proved that they had no prospect of success either in his case or in general. He also maintained that there had been a real risk of retribution, since a person bringing private prosecution proceedings before the courts could subsequently be charged with falsely accusing someone of having committed a crime. This risk had been particularly relevant in his case, since the alleged perpetrators had been members of the local government and since the police and the prosecutor’s office had clearly been unwilling to ensure the protection of his rights against those authorities.", "48. The applicant argued that by lodging a criminal complaint in respect of the unlawful entry into his property, he had exhausted the available domestic remedies and was thus not required to initiate separate civil compensation proceedings against the person responsible for the incident. In addition, since the issue of liability had not been clarified by the criminal investigation, it had been doubtful whether his civil action would have had any prospect of success.", "49. Lastly, the applicant contested the Government’s argument that his complaint should be dismissed for failure to respect the six-month time-limit. He argued that he had pursued his criminal complaint concerning the unlawful entry into his property by the authorities.", "(b) The Court’s assessment", "50. In assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016, and the cases cited therein). Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III).", "51. The Court notes that, in the present case, the applicant diligently explored the criminal avenue of redress by lodging a criminal complaint against those allegedly responsible for the specific incident, alleging unlawful entry onto private property and abuse of authority (see paragraph 17 above). In his complaint of 6 August 2012 about the discontinuation of the proceedings he insisted that the authorities had unlawfully entered his property on the pretence of conducting official proceedings (see paragraph 19 above). While it is true that the applicant did not pursue his complaint concerning the abuse of authority, he did maintain his claims concerning the unlawful entry into his home by the authorities in his further complaint against the discontinuation order obtained at first instance (see paragraph 22 above).", "52. The Court further points out that the applicant complained before it that his right to respect for his home had been violated owing to the unlawful entry of public officials into his house. The focus of the criminal proceedings before the domestic investigating and prosecuting authorities was precisely the question whether or not the mayor and other members of the municipal administration had acted in breach of the Criminal Code, which prohibited unlawful entry into private property. The remedy pursued by the applicant allowed for the examination of criminal responsibility, whereby the investigating authorities were under the obligation to gather evidence and establish the circumstances of the incident. Those proceedings were thus capable of leading to the identification and, if appropriate, punishment of those responsible. In these circumstances, the Court finds that the applicant raised the complaint about the infringement of his right to respect for his home and thus provided the domestic authorities with the opportunity to put right the alleged violation, irrespective of the fact that he had not pursued his complaint about the alleged abuse of authority. In any event, the effectiveness of the criminal complaint concerning the unlawful entry into private property has not been disputed by the Government (see paragraph 42 above).", "53. As regards the Government’s submission concerning the applicant’s failure to initiate private prosecution proceedings, the Court has held in a number of cases that applicants are not required, with respect to the exhaustion of domestic remedies, to bring substitute private prosecutions, essentially because to do so would constitute the pursuit of a legal avenue that would have the same objective as their criminal complaints (see R.S. v. Hungary, no. 65290/14, § 38, 2 July 2019; M.F. v. Hungary, no. 45855/12, § 34, 31 October 2017; R.B. v. Hungary, cited above, §§ 60 ‑ 65; and Borbála Kiss v. Hungary, no. 59214/11, §§ 25-27, 26 June 2012; see also Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006). The Court sees no reason to hold otherwise in the circumstances of the present case.", "54. As to the question whether the applicant ought to have brought separate civil proceedings in addition to lodging a criminal complaint, the Court refers, first of all, to its above-mentioned finding that the choice to initiate criminal proceedings constituted an effective remedy for the applicant’s complaint about the infringement of his right to respect for his home.", "55. In this respect, the Court recalls that, where several remedies are available, the applicant is not required to pursue more than one and it is normally that individual’s choice as to which. Consequently, the Court considers that the present applicant cannot be required to avail himself of an additional legal avenue in the form of a civil action (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009, with further references). It is satisfied that the applicant has thus exhausted domestic remedies.", "56. In view of the foregoing, the Government’s objection to the effect that the applicant failed to exhaust domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected.", "The Court would further note that the Gyöngyös public prosecutor’s office issued the decision on the discontinuation of the investigation on 19 July 2013 and that the applicant then went on to lodge his application with the Court on 19 December 2013. It follows that the applicant complied with the six-month rule and that the Government’s objection in this respect must likewise be rejected.", "(c) Conclusion as to admissibility", "57. The Court furthermore notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "58. The applicant argued that representatives of the public authorities intruded into his home without any legal basis. He pointed out that a number of enquiries had been carried out concerning the authorities’ actions, and that during those procedures the mayor’s office had invoked different reasons and legal provisions to substantiate the legality of the inspection in question, including the need to verify the number of people living in the house for its compliance with urban construction rules and the need to assess the eligibility of the applicant’s wife for social benefits. However, as concluded by the Parliamentary Commissioner and the Heves County Governmental Office, there had been no legal basis for the mayor and his colleagues to enter his home.", "59. The applicant also contested the legitimacy of the aim of the interference, arguing that the public interest in protecting the economic well ‑ being of the country was not a valid reason for inspecting the living conditions of persons in receipt of housing benefit. In any case, all the information allegedly sought by the authorities had been available in official registers.", "60. The applicant further submitted that the authorities had failed to investigate effectively the public officials’ intrusion into his home. He complained of several perceived omissions on the part of the investigating authorities. In particular, they had erroneously relied on the fact that the applicant had not objected to the inspection, since this element had been irrelevant in situations where authorities entered private property on the pretext of conducting an official procedure. In the applicant’s view, there had been clear indications that the authorities had misled the applicant about the nature of the inspection; yet those elements had been ignored by the investigation authorities. Nor had the investigating authorities considered the public officials’ intentions or whether the latter had been aware of the unlawfulness of their actions.", "61. In the applicant’s view, the investigating and prosecuting authorities had clearly demonstrated their unwillingness to carry out an effective investigation. In particular, the Gyöngyös Police Department had only requested its exclusion for bias after having dismissed his criminal complaint twice. Furthermore, the authorities had unreasonably delayed the investigation, even though the facts of the case had never been disputed.", "(b) The Government", "62. In the Government’s submission, the applicant’s complaint concerned not the inspection of his home but the fact that the alleged perpetrators had not been indicted and that no criminal law remedy had been provided for his complaint. The Government initially admitted that the inspection had been unlawful under public law since it had been based on a municipal decree that had subsequently been repealed. It had also been in breach of the Administrative Proceedings Act. Nonetheless, it had not constituted an offence under the Criminal Code. In that sense, for the Government, the interference had been in accordance with the law. In their subsequent submissions the Government contested the argument that the legal provisions underlying the actions in question had been unlawful and maintained that sections 7 and 8 of Municipal Decree no. 3/2009 provided for a legal basis of the inspection.", "63. The Government argued that the conduct of the representatives of the municipality administration had constituted a criminal offence only if they had been aware that they had not acted in their official capacity. The Government relied on the findings of the prosecuting authorities that since it could not be established that the public officials had been deliberately pretending to carry out an official procedure, no crime could be established. The Government maintained that the applicant had not provided any domestic case-law substantiating his argument that public officials should be held criminally responsible for conduct which they had believed to be lawful.", "64. In the Government’s view, in so far as the applicant’s complaint was to be understood as requiring the legislator to enact criminal-law sanctions for the conduct in question, this went beyond the States’ positive obligations under Article 8 of the Convention. Criminal-law sanctions should only be applicable for the most serious breaches of the law.", "The third-party intervener", "65. The European Roma Rights Centre (ERRC), in their third-party observations, pointed out that the inspection of the applicant’s home had been an example of anti-Gypsyism in Hungary. This phenomenon, in their view, also manifested itself in the provision of social benefits, where many social assistance recipients were required to engage in economically insignificant labour in order to receive subsistence-level support. They also pointed out that Roma faced discriminatory treatment by the local authorities.", "The Court’s assessment", "(a) General principles", "66. The Court reiterates that any measure, if it is no different in its manner of execution and its practical effects from a search, amounts, regardless of its characterisation under domestic law, to interference with applicants’ rights under Article 8 of the Convention (see Belousov v. Ukraine, no. 4494/07, § 103, 7 November 2013).", "67. The Court further notes from its well-established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law (see Halford v. the United Kingdom, 25 June 1997, § 49, Reports of Judgments and Decisions 1997 ‑ III), which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner in which it is exercised (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82, and Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000 ‑ II).", "68. The interference with the right to respect for private and family life must therefore be based on a “law” that guarantees proper safeguards against arbitrariness. There must be safeguards to ensure that the discretion left to the executive is exercised in accordance with the law and without abuse of powers. The requirements of Article 8 with regard to safeguards will depend, to some degree at least, on the nature and extent of the interference in question (see Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, § 113, 20 September 2018).", "(b) Application of those principles to the present case", "(i) Whether there was an interference", "69. The Court notes that various authorities of the Gyöngyöspata municipality performed “inspections” of the applicant’s house on 13 October 2011. The Court, having regard to its case-law (see paragraph 66 above), considers that this constituted an interference with the applicant’s right to respect for his home, protected under Article 8 of the Convention.", "70. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society (see Pretty v. the United Kingdom, no. 2346/02, § 68, ECHR 2002 ‑ III).", "(ii) Whether the impugned interference was “in accordance with the law”", "71. In their submissions under this head, the parties disagreed as to the applicable law and the existence of a legal basis under domestic law.", "72. The Court observes that according to the information contained in the case file, the authorities did not rely on any provision of domestic law in carrying out the actions in dispute and failed to prepare an official record of the procedure.", "73. When responding to the investigating authorities’ inquiry following the applicant’s criminal complaint of 19 October 2011, the position of the mayor’s office was that the inspection had been based on section 85(4)(a) of OTÉK (see paragraph 24 above), which, in their view, authorised the public notary to verify whether the applicant’s home complied with construction regulations (see paragraph 10 above). The applicant’s criminal complaint had been dismissed both by the police and the prosecutor’s office, finding that the measure had been carried out pursuant to that provision (see paragraphs 11 and 13 above). On 22 March 2012 the municipality’s public notary invoked the same legal basis in the course of the inquiry conducted by the Governmental Office. However, the Governmental Office concluded that that provision was inapplicable to the applicant’s case and that the municipal authorities were not empowered to carry out an inspection based on that provision (see paragraph 30 above). Thus, the subsequent decisions issued in connection to the applicant’s criminal complaint did not refer to the provisions of OTÉK as a legal basis for the inspection.", "74. The Court further notes that as a secondary reason for the inspection, the mayor’s office invoked before the investigating authorities the fact that the applicant’s wife was in receipt of housing benefit from the municipality. The mayor’s office nonetheless did not rely on any provision of domestic law in this respect in the first set of criminal investigation.", "75. It was only submitted in the criminal investigation ensuing from the inquiry of the Governmental Office that those actions were taken in implementation of Municipal Decree no. 3/2009. This argument had been accepted by the national investigating and prosecuting authorities (see paragraphs 21 and 23 above).", "76. In their submission, the Government also suggested that the above provisions were relevant for the inspection of the applicant’s home (see paragraph 62 above).", "77. The Court observes that the section 7 of the Municipal Decree provided for on-site inspections prior to the allocation of social benefits and in its section 8 for an annual revision of the provision of benefit. Even assuming that the persons appearing at the applicant’s home had intended to rely on those provisions, the Court finds, firstly, that the provisions in question were not “foreseeable as to [their] effects” for the applicant. In particular, while it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, in the present case the Court must note that the municipal decree only provided that on-site inspections could be carried out prior to the allocation of social benefits, but that there was no specific reference to inspections in connection with the subsequent provision of benefit.", "78. More importantly, as established by the Governmental Office and not contested by the Government, the last decision on social benefits concerning the applicant’s household had been issued in July 2011 and at the time of the inspection no official procedure – either for the provision or the revision of benefits – had been conducted. Thus, even supposing that section 7 taken in conjunction with section 8 of the municipal decree allowed for inspections to review the provision of social benefits, this was clearly irrelevant to the applicant’s case in the absence of any official procedure. Thus, those provisions could not serve as a legal basis for carrying out the impugned actions.", "79. No other legal instruments have been relied on either by the domestic authorities or by the Government as being applicable to the inspection of the applicant’s home.", "80. The foregoing considerations are sufficient for the Court to conclude that the interference was not “in accordance with the law”. This renders it unnecessary for the Court to examine whether it was undertaken in pursuit of a “legitimate aim” and was “necessary in a democratic society”, within the meaning of Article 8 of the Convention. There has accordingly been a violation of that provision.", "ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION", "81. The applicant further complained that the actions of the Gyöngyöspata authorities and the lack of an effective investigation into the incident had also been discriminatory, based on his Roma origin. He relied on Article 14 taken in conjunction with Article 8 of the Convention. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Admissibility", "Applicability of Article 14 in conjunction with Article 8 of the Convention", "(a) The parties’ submissions", "82. In the Government’s submission, since no crime had been committed by the local authorities, the alleged racist motive or racist attitude of the authorities had also been irrelevant in terms of criminal law. Racist motives alone, without the manifestation of a criminal conduct, did not constitute a criminal offence requiring investigation and prosecution.", "83. The applicant maintained that his Roma origin had been a causal factor in the actions of the mayor and his colleagues, and their conduct had had an intimidating and frightening effect on him. In addition, in the applicant’s view, the State authorities had failed to comply with their positive obligations to take all reasonable steps to uncover any possible racist motives behind the incident.", "(b) The third-party intervener", "84. ERRC argued that the conduct of the authorities had constituted harassment – unwanted conduct relating to the applicant’s ethnic origin –and institutional racism manifest in the local authorities’ discriminatory policy and their failure to provide protection from discrimination.", "(c) The Court’s assessment", "85. Inasmuch as the Government’s argument can be understood as raising the issue of the applicability of Article 14 the Convention, the Court would reiterate its consistent case-law to the effect that this provision has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter. The Court has also held that even in a situation where the substantive provision is not applicable, Article 14 may still be applicable (see Đorđević v. Croatia, no. 41526/10, §§ 157-58, ECHR 2012, with further references).", "86. Discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 176, ECHR 2007 ‑ IV, with further references).", "87. On this point the Court also refers to Council Directive 2000/43/EC (see paragraph 31 above) and section 10 of the Hungarian Equal Treatment Act (see paragraph 26 above), both prohibiting harassment as a form of discrimination, which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.", "88. Furthermore, as the Court has previously held where alleged bias ‑ motivated treatment constituted an interference with the applicant’s right to private life under Article 8, that is, when a person makes credible assertions that he or she has been subjected to harassment motivated by racism, including verbal assaults and physical threats, an obligation may arise for the State authorities that to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have also played a role in the events (see R.B. v. Hungary, cited above, §§ 83 ‑ 84, and Burlya and Others v. Ukraine, no. 3289/10, § 163, 6 November 2018).", "89. The Court observes that the applicant’s complaint about discrimination relates to the authorities’ intrusion into his home, which clearly falls within the ambit of Article 8. The Court also agrees with the assertion of the applicant and the third-party intervener that the notion of discrimination within the meaning of Article 14 also includes cases where the alleged discrimination occurs as harassment related to racial or ethnic origin.", "Having regard to the foregoing considerations, the Court finds that Article 14 of the Convention, in conjunction with Article 8, is applicable.", "Exhaustion of domestic remedies", "(a) The parties’ submissions", "90. The Government pointed out that although the applicant had submitted a complaint concerning the discontinuation of the investigation by the police on 11 June 2013 (see paragraph 22 above), this complaint did not concern the alleged racist motive of the municipal authorities’ conduct. Thus, in their view the applicant had not exhausted all domestic remedies available to him. Furthermore, in reply to the third-party observations, the Government submitted that the applicant could have initiated proceeding under the Equal Treatment Act.", "91. The applicant observed, in particular, that he had explained in detail in his second criminal complaint of 25 June 2012 that in his view the mayor and his colleagues had entered his house with the intention of harassing him because of his Roma origin. However, the law-enforcement authorities failed to detect the racist motive behind this conduct.", "(b) The Court’s assessment", "92. The Court notes that it has already examined the issue of exhaustion of domestic remedies as regards a discrimination complaint separately from the exhaustion issues concerning the main complaint (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, §§ 104-08, 25 October 2011). This approach goes hand in hand with the principle that where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Đorđević, cited above, § 159). Consequently, admissibility issues concerning Article 14 may be assessed separately.", "93. The object of the rule of exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III).", "94. As regards the present case, the Court will examine under Article 14 the issue of exhaustion of domestic remedies in relation to the Government’s assertion that the applicant had not raised his discrimination complaint at the national level.", "95. In his application to this Court, the applicant’s position was that the motive behind the on-site inspection had been to harass him because of his Roma origin and that the investigating authorities had not taken all reasonable steps to uncover any possible racist motive behind the incident.", "96. In his criminal complaint of 25 June 2012 the applicant submitted that the acts of the authorities had constituted unlawful entry into his private property by means of a spurious official procedure, as well as abuse of authority, with a racist motive, as evidenced by the Commissioner’s report (see paragraph 17 above). Accordingly, before the Gyöngyös police department, both the intrusion of the applicant’s home and the biased attitude of the authorities were challenged. He reiterated the same arguments in his objection to the dismissal of his criminal complaint (see paragraph 19 above).", "97. However, in the course of the resumed investigation proceedings the applicant’s objection lodged with the prosecutor’s office against the decision of the Hatvan police department discontinuing the investigation the applicant only put forward the arguments that the authorities’ conduct constituted the offence of intrusion of private property. He did not reiterate before the Gyöngyös prosecutor’s office his argument that the inspection had had racist motives (see paragraph 22 above).", "98. In addition the Court notes the Government’s argument that a victim of discrimination can pray in aid the Equal Treatment Act, which in its section 17/A provides for various forms of injunctive, declaratory and/or punitive relief to victims of discrimination (see paragraph 26 above). The Court observes that the applicant had not made use of this legal avenue.", "Against the above background, the Court considers that the applicant had failed to make use of the remedies available to him in respect of the alleged racist motive behind the incident.", "99. It therefore follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "100. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "101. The applicant’s heirs claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage.", "102. The Government contested this claim. They argued that the applicant’s heirs had not suffered any non-pecuniary damage on account of the violation of the applicant’s right to home, evidenced by the fact that they had not intended to pursue the application.", "103. The Court awards the applicant’s heirs, jointly, EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "104. The applicant’s heirs also claimed EUR 2,248 for the costs and expenses incurred before the domestic courts and EUR 1,705 for those incurred before the Court. In total they claimed EUR 3,953 in respect of costs and expenses. In support of this claim, they submitted pro-forma invoices and payslips from their lawyers. They also submitted a detailed time sheet indicating the amount of hours spent by the lawyers for the preparation of the case: 145 hours of legal work, charged at an hourly rate of EUR 15.5 in respect of the proceedings before the Hungarian authorities, and 110 hours of legal work, charged at an hourly rate of 15.5 in respect of the proceedings before the Court.", "105. The Government contested the applicant’s heirs’ claim for the costs and expenses incurred in the domestic proceedings. They argued that those costs had not occurred to rectify the alleged violation of the Convention but in relation to other proceedings.", "106. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,953 covering costs under all heads, plus any tax that may be chargeable to the applicant’s heirs.", "Default interest", "107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background and care order", "1. Background", "5. A was born in 2011 and is the daughter of the applicant and Y. Both the mother and father had just turned 19 when the child was born. They had been engaged to be married, but the relationship had ended, and the applicant did not name Y as the child ’ s father. At the father ’ s initiative, paternity was established by a court on 18 April 2012. The applicant and the child ’ s father later agreed on joint parental responsibility.", "6. When the child was born, the applicant was living at home with her parents, who are Norwegian Roma. Shortly afterwards, she and A were thrown out by the applicant ’ s father – the child ’ s maternal grandfather – and the applicant, assisted by the social security authorities, decided that she and the child would stay at R. family centre – a parent-child institution. They moved back home after just under three weeks, but returned to the family centre three weeks later because the maternal grandfather had been violent to the applicant.", "7. While the applicant was staying at R. family centre, on 1 December 2011 the grandfather stabbed a neighbouring married couple who were the parents of one of the applicant ’ s friends. The background to this was that he believed that they had helped the applicant to move to the family centre. The applicant was equipped with a panic alarm ( voldsalarm ).", "8. The applicant and A stayed at R. family centre for three and a half months, until 16 February 2012. They then moved back in with the applicant ’ s family. Shortly thereafter, the Child Welfare Service applied for a care order pursuant to section 4-12(a) of the Child Welfare Act (see paragraph 67 below).", "9. On 14 June 2012 the Child Welfare Service issued an emergency care order to place A in an emergency foster home at a secret address, in accordance with the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 6 7 below). The decision stated that the Child Welfare Service had known the family network for many years and that the family, including the applicant, evaded measures of assistance. The County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker – “the Board” ) approved the emergency placement the following day. On 18 June 201 2 A was moved to the emergency foster home, and on 21 June 2012 it was decided that the applicant would have one hour of supervised contact per week. The reason given for the supervision was the risk that the child might be abducted.", "10. On 25 June 2012 the Board reviewed the emergency care order. It noted that the Child Welfare Service had been informed by the staff at R. family centre that there were considerable deficiencies in the applicant ’ s ability to care for herself and the child, but that she would not accept assistance. Moreover, the Board observed, inter alia, that the applicant had repeatedly moved back from the family centre to her parent ’ s home, where she herself had been the victim of violence numerous times as well as witness to violence against other family members and neighbours, even after A had been born. A witness from R. family centre had testified that the mother would not take advice, had herself had a troubled childhood and was under the dominance of her father. The witness mentioned that the applicant ’ s father took decisions for the applicant and controlled her finances. He had also taken her to the social security authorities and presented her as having intellectual disability ( psykisk utviklingshemmet ) in order to obtain an apartment for himself. The Board added that even when the applicant had lived in a secure environment at R. family centre, she had followed her father ’ s order to return home.", "11. On 23 August 2012 Oslo City Court ( tingrett ) reviewed and upheld the emergency care order. It noted, inter alia, that there was an obvious ( nærliggende ) risk that the applicant ’ s father would influence her to prevent the Child Welfare Service from involving itself any further. It took account of how her father had prevented her from going to school, which meant that she still could not read or write and did not have the necessary knowledge for day-to-day life. Further, the City Court found that the applicant was obviously still under strong influence of her father, as had been lately illustrated by how she had two times left the family centre (see paragraphs 6 and 8 above) without notice, because her father had asked her to do so. For this reason, the City Court did not attach weight to the applicant ’ s statements before that court to the effect that she was now willing to accept assistance measures. Moreover, the applicant had stated that she was now living with a friend, but had been unable to give the address. A ’ s father, Y, supported the emergency care order before the City Court.", "12. After three months, on 2 6 September 2012, A was moved from the emergency foster home to her current foster home. The background to this move was that the emergency foster mother had discovered a car following her after a contact session at the child welfare centre two days before, on 24 September. She had reported this to the centre ’ s emergency foster care department, which had found out that the car belonged to the applicant ’ s maternal grandfather. The car had been driven by a young man who was alone in the car. Because of the abduction risk, the Child Welfare Service made an emergency order that the applicant would have supervised contact with A one hour per month in suitable premises and with police assistance. A similar decision was made in relation to Y the next day, on 27 September.", "13. On 5 October 2012 Y initiated custody proceedings against the applicant and requested an order that A live in his care. The appointed expert in that case, A.G.H., concluded that neither parent should have care and control of or contact with A.", "14. On 18 October 2012 the Board reviewed the orders on contact rights of 26 and 27 September 2012 (see paragraph 12 above). It found, inter alia, that the incident on 24 September, viewed in conjunction with the other information about the behaviour of the mother ’ s family and network, showed that the applicant and Y could both be subject to threats or pressure, which again implied a risk that A might be kidnapped. The Board noted that it would be demanding to carry out any contact sessions without A ’ s identity being revealed to the applicant ’ s family and network, but the risk would be reduced with fewer visits. The Board also attached weight to A being a vulnerable child who had experienced considerable instability and disorder in her first year. She had recently been moved again and had a particular need for calm and stability.", "2. Care order", "15. On 19 December 2012 the Board, composed of a chairperson qualified to act as a professional judge, a psychologist and a layperson, in accordance with the first paragraphs of sections 7-2 and 7-5 of the Child Welfare Act, issued a care order pursuant to section 4-12(a) of that act (see paragraph 6 7 below). Before the Board, A ’ s father, Y, supported the care order and requested visiting rights.", "16. On the issue of daily care, the Board considered that A was a vulnerable girl who had already experienced several broken relationships. Referring to case documents and testimony, it assessed A as insecure in her attachment to care persons. The Board further noted that A scored as “delayed” and otherwise obtained low scores on tests relating to motor skills, communication and social functioning. It appeared clear that she had been under-stimulated until she was placed in the emergency foster home. She had therefore, in the Board ’ s view, a particular need for stable and predictable surroundings and a care that could further her development ( utviklingsfremmende omsorg ). The Board found it clearly proved that there were serious deficiencies in terms of the personal contact and security needed by A in light of her age and development. This could be related to the applicant ’ s own growing up not having been secure and adequate ( trygg og god ), including that she had been kept away from, or had chosen not to avail herself of, assistance measures from child welfare and health authorities.", "17. The Board remarked that the child welfare authorities should consider offering the applicant treatment of her mental health, and further assessed that she would not be able to benefit from child welfare assistance measures without her first obtaining help with her mental health. In addition, the Board noted that the material conditions had considerable deficiencies: the applicant had been assisted to get her own apartment, but had not paid rent or managed to obtain documents in order to have the rent covered by the social security authorities. She had stated that her father had received all the money she had been granted as financial support, to which she had only had limited access. The Board considered that she, in short time, could end up in a situation where she could not offer the child a place to live and food. The Board examined the issue of A ’ s Roma heritage in light of the United Nation ’ s 1989 Convention on the Rights of the Child (see paragraph 6 9 below) and the Council of Europe ’ s 1995 Framework Convention for the Protection of National Minorities (see paragraph 72 below) and concluded that these did not prevent that a care order be issued.", "18. As to the question of contact, the Board stated that this had to be determined in light of the proportionality requirement set out in Article 8 of the Convention as well as the United Nation ’ s 1989 Convention on the Rights of the Child (see paragraph 6 9 below). According to the case-law of the European Court of Human Rights, the clear starting point was that a care order should be a temporary measure to be discontinued as soon as circumstances permit. Reference was also made to Johansen v. Norway, 7 August 1996, §§ 78 and 83, Reports of Judgments and Decisions 1996 ‑ III, according to which the authorities had a “ normal obligation under Article 8 of the Convention to take measures with a view to reuniting them if the mother were to become able to provide the daughter with a satisfactory upbringing”. At the same time, contact which did not further the child ’ s development could be limited, and even denied. The Board further noted that according to case-law of the Supreme Court and the European Court of Human Rights, special and compelling reasons were required in order to justify contact to such limited extent that it had to be considered as a breaking off of contact.", "19. The Board went on to examine the instant case in view of the fact that, in its opinion, it would be a long-term placement. This meant that the purpose of contact was for A to get to know her biological origins with a view to potential future attachment. Before the Board, the child welfare authorities had submitted that contact should be denied altogether, because of the risk that A would otherwise be abducted. The Board found it substantiated that it was a member of the applicant ’ s family who had followed the emergency foster mother on 2 4 September 2012 (see paragraph 12 above) to find out where A had been placed. However, the Board agreed with the parents that there was quite a leap between following someone in order to find out an address and carrying out an abduction. The Board was therefore of the opinion that there was a “ certain risk ” of A being kidnapped and kept hidden, but that there was not, at the time it made its decision, a sufficiently present and obvious ( aktuell og nærliggende ) risk. Two contact sessions had taken place since A had been moved from the emergency foster home into her ordinary foster home following the “ car incident ”, without anyone attempting to find out her address. Nor had any information about where A had been placed emerged during contact sessions, since she was too young to communicate that information. She would probably be unable to do so for another year.", "20. The Board had not found any other circumstances relating to the contact between the parents and A to indicate that special and compelling reasons for denying contact existed, and gave both parents supervised contact of one hour, four times a year. Neither of them was entitled to know A ’ s whereabouts.", "B. First set of contact proceedings", "1. The City Court", "21. Both the applicant and Y accepted the care order, but the applicant applied to the City Court for contact to be increased, with the frequency to be decided by the court. The father became a party to the case. He first applied for the Board ’ s decision to be upheld. He subsequently applied for unsupervised contact. The municipality asked the court to deny both parents contact because of the risk of abduction.", "22. The City Court heard the case from 18 to 19 June 2013. The court ’ s bench was comprised of one professional judge, one lay judge and one psychologist (see paragraph 68 below). The parties attended with counsel and gave evidence. Eight witnesses were heard.", "23. On 5 July 2013 the City Court gave judgment and ordered that the applicant and Y were not entitled to have contact with A.", "24. The City Court found that the applicant ’ s father had not altered his need to control the applicant and her child. The court referred to statements the applicant had made to the police, to the extent that her father wanted to take over the care of the child and planned to take the applicant and her daughter abroad, kill the applicant and then take over the care of A. He had allegedly said this only a few hours before he had stabbed the parents of the applicant ’ s friend (see paragraph 7 above). It was also, to the City Court, unlikely that the applicant had cut off contact with her father. In addition, it was likely to have been the applicant ’ s family who had followed the emergency foster mother (see paragraph 12 above). There was thus a present and obvious ( aktuell og nærliggende ) risk of kidnapping. At the age of two, A had already had to change care persons several times, and it could be considerably harmful if she lost her foster parents because of kidnapping or a risk of such. In addition, the applicant ’ s father could not in any way be expected to be a serious care person for A. Viewed in connection with the contact sessions that had taken place, which had led to the child having negative reactions and challenged the calm and stability in the foster home, this supported the conclusion that the court should not allow any contact. Weighing the different interests, the City Court concluded that a decision to the effect that the applicant would not be entitled to have contact with A, pertained to her best interests.", "25. As to A ’ s cultural background on her mother ’ s – the applicant ’ s – side, the City Court concluded that the Council of Europe ’ s 1995 Framework Convention for the Protection of National Minorities (see paragraph 7 2 below) could not lead it to reach a different conclusion as to what was in A ’ s best interests. It added that it would be limited how much the applicant could teach A about the Roma during four contact sessions yearly, and that A would be given information about her background by the foster parents.", "2. The High Court", "26. The applicant and Y both appealed to the High Court ( lagmannsrett ) which heard the case, including testimony from the applicant and the child ’ s father – who both attended with counsel – and eight witnesses, three of which were experts. It gave judgment on 5 May 2014, dismissing the appeals.", "27. The High Court noted that it was circumstances relating to the applicant ’ s family that had led it to decide not to allow any contact. It mentioned that the applicant ’ s father had, over the years, been convicted of possession and use of drugs, driving under the influence of alcohol or drugs ( promillekjøring, kjøring i påvirket tilstand ), thefts and a stabbing. He had been suspected of violent crimes and charged with attempted murder with the use of a firearm, but the charges had been dropped. The applicant ’ s mother had been fined and sentenced to imprisonment for violent crimes. Moreover, the High Court noted, the applicant ’ s father had thrown the applicant out of her home when she had had care of the child, then only newborn. The applicant had explained that she had been subject to violence from her father and abuse from her mother and brother. The High Court noted that the applicant ’ s father was violent and appeared unpredictable. In addition, there had been the incident with the emergency foster mother being followed (see paragraph 12 above). There was, in conclusion, a risk that the child would be abducted and hidden from the Child Welfare Service. The child had already been a victim of neglect when living with the applicant and the applicant ’ s parents and there were reasons to fear that she would again be subject to neglect if someone in the applicant ’ s extended family ( storfamilie ) kidnapped her. Breaking off A ’ s relationship to her foster parents, to whom she was developing attachment, at that time, would also in itself be serious.", "28. The High Court also referred to the fact that a psychologist at an outpatient clinic, K.G.F., had reported that A was marked by neglect in her early life. The psychologist recommended that A, because of her socio-emotional difficulties, be referred to the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic ( Barne- og ungdomspsykiatrisk poliklinkk ). Furthermore, the psychologist recommended that A, because of her somewhat scarce use of language, attention difficulties and early development delay, in time be examined by educational and psychological services (praktisk-pedagogisk tjeneste) for at least one year prior to starting school. The psychologist had reported that A needed that her needs to develop in a completely secure and predictable environment be given priority, which also implied a need for a continued arrangement in which she did not have contact with the applicant. The High Court noted, in addition, that another psychologist, A.G.H., who had been appointed as expert in the proceedings between the parents concerning custody and parental authority (see paragraph 13 above) had already in 2012 recommended that none of the parents should have contact with A, primarily because of the abduction risk.", "29. The High Court disagreed with the Board ’ s consideration to the effect that, while there was a certain risk of abduction, it could not qualify as present and obvious ( aktuell og nærliggende ), and special and compelling reasons could therefore not be present. In the High Court ’ s view, an overall assessment had to be made, in which not only the probability of an abduction would weigh in, but also factors such as the consequences of a possible abduction, the child ’ s robustness and other consequences that contact would entail for the child. Although the main reason for refusing contact lay in the abduction risk, that risk was not the only argument for denying contact. One unfortunate consequence of the abduction risk was that contact sessions would necessarily have to take place without the foster parents – A ’ s primary caregivers and those she felt most secure with – present. This could also harm the child ’ s confidence in the foster parents. In addition, A had had negative reactions to the sessions that had taken place. The foster parents had stated that she, following the sessions, could cry for a week, be sad, wake up during nights as if she had bad dreams and had developed a rash that looked like eczema which the health visitor had said had been stress-related. The problems associated with the contact sessions had to be seen in view of the fact that A was a vulnerable child.", "30. In the view of the High Court, it was not possible for A ’ s father, Y, to have contact with A either. He had repeatedly been threatened by the applicant ’ s father, brother and cousin. The court was of the opinion that he could be pressured into disclosing information about A ’ s whereabouts should it come to his knowledge.", "3. The Supreme Court", "31. The applicant and Y appealed to the Supreme Court, regarding the application of the law and assessment of the evidence. Written declarations were presented to the court by A.N., a secondary education teacher at a municipal Roma Initiative ( Romtiltaket ) – an advice centre that gave help and guidance; H., a case officer with the Child Welfare Service, and the psychologist K.G.F. (see paragraph 28 above). They had also given evidence before the City Court and the High Court (see paragraphs 22 and 26 above). Since the High Court had given judgment, the maternal grandfather had started serving a four and a half year sentence in connection with the stabbing in December 2011 (see paragraph 7 above). The Supreme Court had also been informed that the applicant was pregnant and living with the father-to-be (see paragraph 38 below).", "32. In its judgment of 23 October 2014 ( Norsk Retstidende ( Rt. ) 2014 page 976) the Supreme Court first set out the general principles with respect to contact rights, based on the Child Welfare Act, its preparatory works and related Supreme Court case-law, Article 9(3) of the 1989 Convention on the Rights of the Child (see paragraph 6 9 below) and Article 8 of the Convention on the right to respect for family life as this provision had been interpreted by the European Court of Human Rights in cases such as Johansen v. Norway, cited above; R. and H. v. the United Kingdom (no. 35348/06, § 73, 31 May 2011); and Neulinger and Shuruk v. Switzerland [GC] (no. 41615/07, § 136, ECHR 2010). The Supreme Court additionally observed that the relevant legal standard that could be inferred from the case-law of the European Court of Human Rights – that a child ’ s ties with its family can only be broken “in very special circumstances” – was also in line with Article 102 and Article 104 viewed in conjunction with Article 92 of the Norwegian Constitution (see paragraph 66 below).", "33. On the topic of A ’ s Roma identity, the Supreme Court examined, inter alia, Article 30 of the 1989 Convention on the Rights of the Child (see paragraph 69 below), Article 27 of the international Covenant on Civil and Political Rights (see paragraph 7 1 below), General Comment No. 11 from 2009, the UN Committee on the Rights of the Child (see paragraph 70 below), and Article 5 of the Council of Europe ’ s Framework Convention for the Protection of National Minorities (see paragraph 72 below).", "34. The Supreme Court considered it somewhat unclear whether the High Court had been of the opinion that the risk of abduction alone was sufficiently high to justify denial of contact. Studying the High Court ’ s reasons, it found that these could be understood to mean that, in the overall assessment, even a small (“certain”) risk of abduction would be a sufficient basis for denying contact if an abduction would have a strong harmful effect on the child, if the child was vulnerable, and if the child reacted negatively to contact sessions. If this had been the High Court ’ s point of departure for its assessment, it had not been pertinent. If the risk of abduction could not be said to be real and present ( reell og aktuell ), contact could not be denied because an abduction would have a severely harmful effect. This also had to apply if the child showed such negative reactions to contact sessions as in the present case, since contact was considered to be in the child ’ s best interests from a long-term perspective. The Supreme Court also interpreted the municipality to mean that the negative reactions were not in themselves a sufficient basis for denying contact.", "35. When turning to the facts of the instant case, the Supreme Court took into account that there had been no direct presentation of evidence before it, nor had any expert witnesses been appointed, which would normally imply that it would be reluctant to depart from the High Court ’ s assessment of the facts. In the instant case there were, however, some unclear or new aspects of the case that needed further examination by the High Court. This included A ’ s maternal grandfather having started serving a four and a half year sentence (see paragraphs 7 and 31 above); two years had passed since the incident in which the emergency foster mother had been followed (see paragraph 12 above) and nothing had happened since to indicate that the applicant ’ s family was trying to locate A or planning to abduct her; the applicant had grown older and was anew pregnant, now with a father to-be from a different environment; the applicant had gone to school and undergone a work placement. The Supreme Court wanted an assessment of what the foregoing meant in relation to the possibility of the applicant resisting any pressure exerted by her family and also a more thorough assessment concerning Y.", "36. The Supreme Court assumed, as had the High Court, that an abduction would be traumatic for A. She would be torn away from her care situation, and it was unlikely that she would receive satisfactory care if she were hidden from the authorities by someone acting on behalf of her maternal grandfather. The case had still not been sufficiently elucidated before it for it to be satisfied that a real and present ( reell og aktuell ) risk of abduction existed.", "37. The Supreme Court therefore concluded that the High Court ’ s judgment be set aside so that the case could be reheard by the High Court.", "38. On 15 October 2014 the applicant had given birth to a son, B, whose father is of half Chilean and half Peruvian descent.", "C. Second set of contact proceedings and final judgment", "1. The High Court", "39. On 3 November 2014, after the case was returned to the High Court from the Supreme Court, the applicant requested that an expert witness be appointed in order to assess her caring skills in respect of B. On 13 January 2015 the court turned the request down. It stated that the key issue was whether a real risk of abduction existed and that an expert assessment of the applicant ’ s competence to care for her newborn child was not particularly relevant. As to the applicant ’ s relationship to her own family, and the significance of this with respect to her ability and will to protect A from persons in the family who might pose an abduction risk, it considered that an expert witness would not be particularly qualified to draw a conclusion regarding these circumstances. Insights into these issues could rather be obtained through conversations between the Child Welfare Service and the applicant, and by the applicant ’ s appearance before the High Court.", "40. The applicant and Y also requested an interim measure to the effect that contact be reestablished in line with the Board ’ s decision. On 12 December 201 4 the High Court turned the request down. It noted that while the Supreme Court under the relevant procedural law had been formally competent to decide on the merits of the case, it had chosen to quash the High Court ’ s former judgment because the case had been insufficiently elucidated. A meeting with the parties had since been held on 8 December 201 4, and the court had then been informed of the child welfare authorities having requested the police to make a report on the abduction risk. The report would be finalised by January-February 2015 and the appeal hearing had been scheduled at 12 March. A new, full hearing, would thus take place in three months ’ time and in examining the request for interim measure, the High Court had no further basis on which to assess the abduction risk than that which the Supreme Court had had some one and a half months earlier.", "41. During the appeal hearing from 12 to 13 March 2015 in the contact proceedings, the High Court ’ s bench was comprised of three professional judges, a lay judge and a psychologist (see paragraph 68 below). The applicant and Y attended with their counsel and gave statements. An officer with the Child Welfare Service attended together with the municipality ’ s counsel. Seven witnesses were heard, including the child welfare officer.", "42. In its judgment of 29 April 2015 the High Court concluded that the appeals could not succeed.", "43. In its reasoning, the court commenced by noting that it would review all aspects of the case as far as it was elucidated at the time judgment was given.", "44. As a rule, children and parents were entitled to have contact with each other after a child had been taken into care under the first paragraph of section 4-19 of the Child Welfare Act (see paragraph 6 7 below). When applying this provision, decisive importance had to be attached to finding measures that were in the child ’ s best interests. This included attaching importance to giving the child stable and good contact with adults and continuity of care. Reference was made to section 4-1 of the Child Welfare Act ( ibid. ).", "45. Moreover, the Child Welfare Act had to be interpreted and applied in accordance with Norway ’ s obligations under various conventions. In the present case, the relevant provisions were found in Article 9(3) of the 1989 Convention on the Rights of the Child on the child ’ s right to regular and direct contact with both parents (see paragraph 6 9 below) and Article 8 of the Convention on the right to respect for family life. Since the child belonged to a national minority, Article 30 of the Convention on the Rights of the Child on the right of minority children to live in keeping with their own culture and use their own language also applied ( ibid. ). In addition, it followed from Articles 5(1), 10(1) and 14( 1 ) of the Council of Europe ’ s Framework Convention for the Protection of National Minorities of 1 February 1995 (see paragraph 7 2 below) that the State had a duty to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, allow the minority to learn their minority language and use it freely and without interference. The Supreme Court had based several decisions on the understanding that the provisions had to be interpreted in such a way that special and compelling reasons were required to deny contact. The High Court assumed that the same requirement applied to the provision in the Council of Europe ’ s Framework Convention.", "46. The special and compelling reasons relevant to this case were whether there was a real risk of abduction if contact sessions took place and whether there were concrete circumstances that substantiated this fear. The risk also had to be present, but no “ preponderance of probability ” could be required. The latter had been clarified by the Supreme Court ’ s judgment in the instant case (see paragraphs 32 -3 7 above).", "47. In the High Court ’ s opinion, the risk of abduction was still real and present ( reell og aktuell ). This risk was related to the applicant ’ s father in particular, but also generally to other people in the community to which he and his family belonged. In this respect, the High Court agreed with the parents ’ counsels that the parents had to be assessed as individuals and not on the basis of what group they belonged to. Knowledge about the mother ’ s environment could nevertheless have a bearing as background information. According to information provided by the police, the Roma community was statistically overrepresented in child abduction cases. This was also consistent with the impression of a psychologist, F. This overrepresentation could be due to the fact that many members of the community did not adhere to the Norwegian model for law enforcement and conflict resolution, and the possibility of keeping children away from the Norwegian authorities provided by family ties abroad.", "48. The applicant had previously found it difficult to break contact with her family and the community. When she had been given a place at R. family centre in September 2011, she had moved back in with her parents a few weeks later (see paragraph 6 above). On 1 November of the same year, she had been placed in the same institution again, but had moved back in with her family again in February 2012, despite the fact that her father had previously been violent to her (see paragraphs 6 and 8 above).", "49. One of the witnesses – A.N., the teacher from the municipal Roma Initiative (see paragraph 31 above) – had given a positive assessment of the applicant ’ s recent development. She was now described as resourceful and eager to learn, she had her own flat, and she had recently had her second child. According to the witness, she could serve as a role model for other Roma women.", "50. The High Court did not disagree that there were positive elements in the applicant ’ s development, but there was also information to indicate that the development had not been as stable as the applicant and A.N. claimed. In May 2013 the applicant had been evicted from her flat after several complaints from neighbours of domestic disputes. She was in receipt of social security benefits because she had no other income with which to support herself and her second child, B. It had also been reported that her work training and school attendance had been somewhat unstable. In the summer of 2013 the police had been called because of an argument between the applicant and her father. Shortly after B ’ s birth in October 2014 (see paragraph 38 above) social services had raised concerns because the applicant had been at risk of losing her home for being behind on her rent. B ’ s father had previous convictions for drug crime, among other things, and, according to the applicant, he had been violent to her during her pregnancy. Considering the circumstances, the High Court considered it natural to assume that the applicant might feel the need for her family ’ s help and protection.", "51. If the applicant were to come under her father ’ s influence again, it was unlikely that she would cooperate with the Child Welfare Service to prevent A from being abducted in connection with a contact session. During the investigation of her father in connection with the stabbing (see paragraph 7 above), she had stated that her father wanted to take over the care of A. The applicant had been told that her father planned to take her to another country, kill her and take her child. She had then asked for a domestic abuse alarm device.", "52. It was the High Court ’ s opinion that, if the applicant ’ s father wanted to take over the care of A, there was little doubt that he would threaten or persuade the applicant to use contact sessions for these purposes if he considered it expedient. He had previously displayed controlling and threatening behaviour in relation to his daughter. He had taken her out of school when she was eight years old. She had been physically abused by him and he had been against her moving out. The High Court ’ s judgment of 11 October 2013, in the criminal case against him, showed that he did not hesitate to carry out aggravated acts of violence when he thought the family ’ s interests were being threatened. According to the judgment, he had visited a neighbouring married couple who had allegedly been involved in the applicant ’ s moving out of her parents ’ flat into the family centre (see paragraph 6 above). The father ’ s message had been that the couple was not to interfere in what was an internal family matter. The confrontation had ended with him stabbing the couple and inflicting life-threatening injuries on them both (see paragraph 7 above). He had been sentenced to four and a half years ’ imprisonment for this offence (see paragraph 35 above). His criminal record also contained many other serious offences (see, inter alia, paragraph 27 above).", "53. After a contact session on 24 September 2012, the emergency foster mother had noticed a car following her (see paragraph 12 above). She had stated that she had decided not to drive straight home, and instead had driven around for a while until her pursuer had lost her by a set of traffic lights. The car had been driven by a young man, and had later been found to be registered to the applicant ’ s maternal grandfather. The episode had been reported to the police, but had not been investigated further. However, the fact that the emergency foster mother had been followed after a contact session by a car belonging to a member of the applicant ’ s family could not be a coincidence. In the court ’ s opinion, this episode confirmed the risk of abduction, although nothing more specific could be said about it.", "54. The fact that there had been no subsequent episodes to indicate that anyone was trying to locate the child or plan to abduct her did not, in the High Court ’ s opinion, reduce the risk of abduction to any significant extent. It could just as well be due to a lack of opportunity as a change in attitude. The applicant ’ s father had been serving a prison sentence during this entire period, and the foster parents ’ identity and address were not known to the applicant ’ s family.", "55. The High Court considered that there would also be a real and present ( reell og aktuell ) danger of abduction in relation to Y if he were to have contact sessions. It was unlikely that he himself would abduct the child, but he might be pressured or tricked into aiding an abduction, for example by being threatened or tricked into disclosing information about A that could help to identify the foster home and foster parents. Y had previously stated that he had received such threats. He had told the police that the applicant ’ s cousin and younger brother had threatened to kill him, and that this had allegedly taken place on 15 December 2010. His lawyer had written in a letter to the Child Welfare Service dated 8 November 2011 that Y had repeatedly received death threats from the applicant ’ s father, brother and cousin when he had asked for a paternity test. In the summer of 2012 Y had told the Child Welfare Service that he had reported the applicant ’ s family to the police twice. One of the official complaints concerned the applicant ’ s brother and cousin, who he had reported for threatening to shoot him. The second concerned threats from the applicant ’ s father and uncle. The complaints had been withdrawn because the parties had reached an agreement. He had raised concerns before the Board that the child might be kidnapped. The High Court did not attach decisive weight to the fact that Y, according to his testimony, no longer had any contact with the applicant or her family, and that he no longer shared the Child Welfare Service ’ s concerns about an abduction.", "56. An abduction would clearly be harmful to A, who would in such a case be torn away from the care of her foster parents. A psychologist, F., had testified before the City Court that the child showed signs of having suffered neglect at an early age. She was still a vulnerable child with attachment problems. She needed a calm life, extra security and therapy. She would probably be subjected to more neglect if she were abducted.", "57. Other than the general assumption that it was a good thing for a child to get to know its culture and background, there was little to indicate that contact sessions would be beneficial if they were to take place. Contact would be quite limited and the possibility for the child to get to know her background and Roma culture would thus in any case be significantly reduced. In addition, the foster parents had stated that A had shown strong reactions to the contact sessions that had actually taken place. She was a child with special needs. According to the foster parents, the contact sessions had caused her sleep and digestive problems. If contact were to be resumed, psychologist F. feared that it could cause a significant feeling of insecurity and a reaction against the foster parents for allowing this insecurity, particularly as A had suffered significant neglect in her biological family. Both the foster parents and the Child Welfare Service still considered A to be suffering from separation anxiety, which could be exacerbated by contact. The contact sessions could also be stressful for her. The Child Welfare Service had stated that it had to consider the risk of abduction and make the contact sessions supervised and subject to police protection, regardless of the High Court ’ s conclusion. The High Court had to assume that this would further impair the quality of the contact sessions.", "58. The effects that contact would have on the foster parents also had to be taken into consideration. Contact with the biological parents could create insecurity that could in turn have a negative impact on the conditions in the foster home. The incident in which a car had followed the emergency foster mother could be taken into account in this context. The episode had not been investigated, and not much was known for certain about it. In any case, it had to have been an unpleasant experience, and was likely to have created a sense of fear in the foster parents.", "59. Neither the 1989 Convention on the Rights of the Child, the Convention nor the Council of Europe ’ s Framework Convention could lead to any other conclusion. The High Court did not interpret any of these conventions to mean that parents had an unconditional right to contact if it was contrary to the child ’ s best interest. Under Article 9(3) of the Convention on the Rights of the Child, the right of contact could be exercised except if it was contrary to the child ’ s best interests (see paragraph 6 9 below). The right to family life was also not unconditional, in accordance with Article 8 ( 2 ) of the Convention. These exceptions had to be considered as expressions of a general principle in family law ( barneretten ) to consider the best interests of the child, a principle that had also to be applied when interpreting Article 30 of the Convention on the Rights of the Child (ibid. ) and the relevant provisions in the Council of Europe ’ s Framework Convention (see paragraph 7 2 below). These provisions also had to allow for contact to be denied in cases, such as this one, where special and compelling reasons so indicated.", "60. The State ’ s obligation to protect its citizens could not lead to any other conclusion either. The risk of abduction not only applied in connection with contact sessions. It was also related to the possibility of the applicant ’ s family discovering the foster family ’ s identity and address. If that were to happen, the measures required to protect the child from abduction would be so extensive as to be unrealistic. In the High Court ’ s view, denial of contact was sufficient to fulfil the State ’ s obligation to protect A from being abducted.", "61. Based on the above, the appeal was dismissed.", "2. The Supreme Court ’ s Appeals Leave Committee", "62. Both parents appealed to the Supreme Court. The applicant maintained, among other things, that security measures in connection with contact sessions were not unusual, and that contact sessions had taken place also after the “car incident” (see paragraph 12 above) without abductions having been attempted. In its response at this point, the child welfare authorities submitted, inter alia, that the fact that some contact sessions had been carried out subsequent to the County Social Welfare Board ’ s decision (see paragraphs 15-19 above) without abduction having been attempted, could not be decisive. It argued that these sessions, which had taken place with police assistance, had occurred at a time when A had not yet started to talk and did not understand much of the situation.", "63. On 7 July 2015 the Supreme Court ’ s Appeals Leave Committee ( Høyesteretts ankeutvalg ) – composed of three Supreme Court Justices – refused leave to appeal.", "64. The Committee remarked that during the High Court proceedings, the child ’ s foster mother had testified by telephone without her identity being revealed to the appellants. This was a procedural error. However, it was clear to the Committee that it could not have had a bearing on the substance of the decision, and there was therefore no reason to refer the appeal on this matter for consideration by the Supreme Court.", "65. The High Court ’ s reasons had clearly been sufficient. As to the appellants ’ attack on the substance of the High Court ’ s judgment, the Committee found that neither the decision ’ s significance beyond the scope of the current case nor any other circumstances indicated that the case should be heard by the Supreme Court. The decision to refuse leave to appeal was unanimous." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. Domestic law", "66. Articles 92, 102 and 104 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in May 2014, read as follows:", "Article 92", "“ The authorities of the State shall respect and ensure human rights as they are expressed in this Constitution and in the treaties concerning human rights that are binding for Norway. ”", "Article 102", "“ Everyone has the right to the respect of their privacy and family life, their home and their communication. Search of private homes shall not be made except in criminal cases. The authorities of the state shall ensure the protection of personal integrity. ”", "Article 104", "“ Children have the right to respect for their human dignity. They have the right to be heard in questions that concern them, and due weight shall be attached to their views in accordance with their age and development.", "For actions and decisions that affect children, the best interests of the child shall be a fundamental consideration.", "Children have the right to protection of their personal integrity. The authorities of the State shall create conditions that facilitate the child ’ s development, including ensuring that the child is provided with the necessary economic, social and health security, preferably within their own family.”", "67. The relevant sections of the Child Welfare Act of 17 July 1992 ( barnevernloven ) read as follows:", "Section 4-1. Consideration of the child ’ s best interests", "“ When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child ’ s best interests. This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided.", "... ”", "Section 4-6. Interim orders in emergencies", "“ If a child is without care because the parents are ill or for other reasons, the child welfare service shall implement such assistance as is immediately required. Such measures may not be maintained against the will of the parents.", "If there is a risk that a child will suffer material harm by remaining at home, the head of the child welfare administration or the prosecuting authority may immediately make an interim care order without the consent of the parents.", "In such a case, the head of the child welfare administration may also make an interim order under section 4-19.", "If an order has been made under the second paragraph, an application for measures as mentioned in section 7-11 shall be sent to the county social welfare board as soon as possible, and within six weeks at the latest, but within two weeks if it is a matter of measures under section 4-24.", "If the matter is not sent to the county social welfare board within the time-limits mentioned in the fourth paragraph, the order lapses.", "... ”", "Section 4-12 Care orders", "“ A care order may be issued", "(a) if there are serious deficiencies in the day-to-day care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development,", "(b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required,", "(c) if the child is mistreated or subjected to other serious abuse at home, or", "(d) if it is highly probable that the child ’ s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child.", "An order may only be made under the first paragraph when necessary based on the child ’ s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by measures of assistance under section 4-4 or measures under section 4-10 or section 4-11.", "An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7.", "... ”", "Section 4-19. Contact rights. Secret address", "“ Unless otherwise provided, children and parents are entitled to have contact with each other.", "When a care order has been made, the county social welfare board shall determine the extent of contact, but may, for the sake of the child, also decide that there should be no contact. The county social welfare board may also decide that the parents should not be entitled to know the child ’ s whereabouts.", "...", "The private parties may not demand that a case regarding contact should be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months.", "... ”", "Section 7-2. The composition of the county social welfare board.", "“ Each county social welfare board shall consist of", "(a) one or more chairs who are qualified to act as judges,", "(b) a committee of experts,", "(c) a committee of ordinary members. The Ministry may decide that the committee shall be divided into sub-committees covering different parts of the board ’ s territorial jurisdiction.", "... ”", "Section 7-5. The board ’ s composition in individual cases.", "“ In individual cases, the county social welfare board shall consist of a chairperson, one member of the ordinary committee and one member of the expert committee. When necessary due to the complexity of the case, the chairperson may decide that, in addition to the chairperson, the board shall consist of two members of the ordinary committee and two members of the expert committee.”", "68. The first paragraph of section 36-4 and the last paragraph of section 36-10 of the Dispute Act of 17 July 2005 ( tvisteloven ) read:", "Section 36-4. Composition of the court. Expert panel", "“ The district court shall be composed of two lay judges, one of whom shall be an ordinary lay judge and the other an expert. In special cases, the court may be composed of two professional judges and three lay judges, one or two of whom shall be experts.", "... ”", "Section 36-10. Appeal", "“ ...", "(4) At the oral appeal hearing in the court of appeal, the court shall sit with two lay judges, of whom one shall be an ordinary lay judge and the other shall be an expert. The provisions of this Chapter shall otherwise apply to the appeal hearing to the extent appropriate.”", "B. International law material", "69. The relevant provisions of the United Nations Convention on the Rights of the Child, concluded in New York on 20 November 1989, read as follows:", "Article 8", "“ 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.", "2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. ”", "Article 9", "“ 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence.", "2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.", "3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests.", "... ”", "Article 19", "“ 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.", "2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. ”", "Article 20", "“ 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.", "2. States Parties shall in accordance with their national laws ensure alternative care for such a child.", "3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child ’ s upbringing and to the child ’ s ethnic, religious, cultural and linguistic background.", "... ”", "Article 30", "“ In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.", "... ”", "Article 39", "“ States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”", "70. The relevant parts of the UN Committee on the Rights of the Child (CRC), General Comment No. 11 (2009): Indigenous children and their rights under the Convention [on the Rights of the Child], 12 February 2009, CRC/C/GC/11, read as follows :", "“15. The Committee notes that the Convention contains references to both minority and indigenous children. Certain references in this general comment may be relevant for children of minority groups and the Committee may decide in the future to prepare a general comment specifically on the rights of children belonging to minority groups.", "...", "17. Although article 30 is expressed in negative terms, it nevertheless recognizes the existence of a “right” and requires that it “shall not be denied”. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. The Committee concurs with the Human Rights Committee that positive measures of protection are required, not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.”", "71. Article 27 of the 1966 International Covenant on Civil and Political Rights reads as follows:", "“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”", "72. The relevant provisions of the Council of Europe ’ s 1995 Framework Convention for the Protection of National Minorities read as follows :", "Article 5", "“ 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.", "2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.", "... ”", "Article 10", "“ 1. The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing.", "... ”", "Article 14", "“ 1. The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language.", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "73. The applicant complained that the refusal to allow her contact with A had violated her right to respect for family life as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "74. The Government contested that argument.", "A. Admissibility", "75. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "76. The applicant pointed out that the Supreme Court, in its judgment of 23 October 2014, had stated that the High Court had not fully looked into the case, and that it had pointed to circumstances concerning the applicant and her development. The High Court had, however, not carried out this examination in the subsequent rehearing of the case. It had also denied the applicant ’ s request to have a psychologist appointed as an expert.", "77. The authorities had presented old cases mentioning people from the Roma population, even though these people had had no connection whatsoever to the applicant or her family, including her father. This way of handling the case had emerged as racist and had not at all been suited to clarifying the applicant ’ s situation. The High Court had, furthermore, spoken of a statistical overrepresentation of Roma in abduction cases, even though there had been no connection between the random criminal cases that had been presented and the applicant and her family.", "78. The evidence had not shown that there had been a real and present risk of abduction, amounting to special and compelling reasons to deny the applicant contact. Attention was drawn to the fact that contact sessions had taken place between A and her parents in 2012, following the “car incident”, and that no issues had arisen. No adequate reasons had been given as to why such sessions could not be facilitated later.", "79. The applicant highlighted the Government ’ s positive obligations under Article 8. She and A had shared interests – there was no risk involved in contact between them as such, and it was for the Government to ensure that she and her daughter were safe when meeting each other.", "80. As to A ’ s cultural background, it was clear that a girl of her age could not take responsibility for learning about her culture from books or pictures.", "(b) The Government", "81. The Government submitted that relevant and sufficient reasons had been adduced for the decision to deny the applicant contact. The denial of contact had been decided in order to protect A, as an abduction would have been detrimental to her interests.", "82. Furthermore, the decision-making process had been fair and had afforded due respect to the applicant ’ s rights. The applicant had had legal aid and counsel throughout the proceedings. She had been fully free to present evidence and give testimony. The domestic courts had carried out an in-depth examination of the case. There appeared to be no disagreement between the parties as to the threshold used by the national courts when assessing whether the risk of kidnapping sufficed to warrant a restriction of the applicant ’ s contact rights – a “ real and present ” risk. As to the issue of whether a real and present risk had existed in the case, this was a question of fact. In accordance with the “fourth instance doctrine”, it was primarily for the domestic courts to assess evidence.", "83. The risk of abduction in the instant case had been assessed a total of five times by the Board, the City Court, the Supreme Court and the High Court. Taking account of how the domestic courts had had the benefit of direct contact with the persons concerned, the Government invited the Court to join the High Court ’ s assessments of the facts. The High Court had examined the applicant and Y individually. The information about other members of the Roma community had been relevant, but not decisive.", "84. When considering what was in A ’ s best interests, the Court had to bear in mind the consequences of her being kidnapped. The Government had been under an obligation to protect A from abduction. Reference was made to Article 3 of the Convention and Articles 19 and 20 of the Convention on the Rights of the Child. Furthermore, A was vulnerable and in need of a calm and stable environment. Reference was at that point made to Article 39 of the Convention on the Rights of the Child. In addition, considerable time had lapsed since the applicant had been refused contact. Moreover, allowing contact sessions might affect the foster parents ’ ability to care for A as well as their own safety. Lastly, it would be open to the applicant to apply for a review of the question of contact in the future.", "85. As to the applicant having the care of B, this did not alter the assessment of the situation with respect to A. With respect to positive obligations, there was little the Government could do to ensure contact between the applicant and A, as had been observed by the High Court. The international protection of ethnic minorities could not alter the assessment under Article 8 of the Convention, in so far as it was the best interests of the child that carried paramount importance. The Government stated that A ’ s foster parents reported of telling her stories about her ethnic origin and that the Child Welfare Services had offered to relay books and pictures from the applicant, but that she had not responded.", "2. The Court ’ s considerations", "86. It has not been contested by the Government that refusing the applicant contact with A amounted to an “interference” with her right to respect for her family life under Article 8 of the Convention. Nor has the applicant disputed that the measure complained of was “in accordance with the law” and adopted with the aim of ensuring A ’ s “rights and freedoms” and their “health or morals” under the second paragraph of that provision.", "87. On the basis of the material submitted to it, the Court finds no reason to conclude otherwise, and will accordingly examine whether the interferences complained of were “necessary in a democratic society”.", "(a) General principles", "88. The Court reiterates that, in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 179, 24 January 2017 ). The essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see, for example, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 118, 28 June 2007).", "89. In accordance with the Court ’ s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests. In determining whether an interference was “necessary in a democratic society”, the Court takes into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (see Paradiso and Campanelli, cited above, § 180).", "90. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. When a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K. and T. v. Finland [GC], no. 25702/94, § 155, ECHR 2001 ‑ VII).", "91. Where children are involved, their best interests must be taken into account. The Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk, cited above, § 135). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child ’ s interests must come before all other considerations (see Jovanovic v. Sweden, no. 10592/12, § 77, 22 October 2015, and Gnahoré, no. 40031/98, § 59, ECHR 2000 IX ).", "92. On the one hand, the best interests of the child dictate that the child ’ s ties with his or her family must be maintained, except in cases where the family has proved particularly unfit. On the other hand, it is clearly also in the child ’ s interests to ensure his or her development in a sound environment, and a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child ’ s health and development (see, among many other authorities, Neulinger and Shuruk, cited above, § 136).", "93. According to the Court ’ s case-law, measures that totally deprive an applicant of his or her family life with the child and are inconsistent with the aim of reuniting them should “only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child ’ s best interests ” (see, for instance, Johansen, cited above, § 78, and Aune v. Norway, no. 52502/07, § 66, 28 October 2010). It should also be reiterated that in Gnahoré v. France, cited above, § 59; see also Görgülü v. Germany, no. 7 4969/01, § 48, 26 February 2004 ), the Court held:", "“ ... it is clear that it is equally in the child ’ s interest for its ties with its family to be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that the interest of the child dictates that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to ‘ rebuild ’ the family.”", "94. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions taken, the parents have been sufficiently involved in the decision-making process, seen as a whole, to be provided with the requisite protection of their interests and fully able to present their case. Thus, it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, particularly those of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child. In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child (see, inter alia, Y.C., cited above, § 138).", "95. In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged, or immediately after their implementation. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for regulating the care of children and the rights of parents whose children have been taken into local authority care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland, cited above, § 154).", "(b) Application of those principles to the present case", "96. The primary question in the instant case is whether the alleged danger of abduction and its implications for the contact sessions justified the authorities ’ decision to refuse the applicant contact with her daughter despite potential negative long-term consequences for the relationship between the child and her mother if no contact were to take place.", "97. Based on the assessments of evidence made by the domestic courts, and from which there are no reasons for the Court to depart, there had been indications that there was a real risk of abduction which emanated predominantly from the applicant ’ s father, but was not limited to him. For instance, the applicant ’ s father had stabbed a neighbouring married couple in the belief that they had helped the applicant to take the child out of their home (see paragraph 7 above); the applicant had been told that her father planned to take her to another country, kill her and take her child (see paragraph 51 above); A ’ s father had received death threats when he had sought to establish his paternity (see paragraph 55 above); and a family member had followed one of the foster parents, possibly as part of discovering A ’ s whereabouts (see paragraph 12 above). The Court has no basis for finding that the domestic courts erred in assessing the abduction risk and qualifying it as “a real risk” in accordance with domestic case-law (see, for example, paragraphs 19 (the Board), 34 and 36 (the Supreme Court), and 46-47 (the High Court) above).", "98. The Court also accepts the national authorities ’ assessment that the consequences of an abduction would be detrimental for A ’ s development as she would again be likely to suffer neglect (see paragraph 56 above). It reiterates in this respect that the national authorities have had the benefit of direct contact with all the persons concerned (see paragraph 95 above).", "99. As to the procedure, the Court notes that after the care order was issued by the Board in December 2012 (see paragraph 15 above), the case was examined once by the City Court (see paragraphs 21-25 above), twice by the High Court (see paragraphs 26-30 and 39-59 above), and once in full by the Supreme Court (see paragraphs 31-37 above). In addition, a review was carried out by the Supreme Court ’ s Appeals Leave Committee in July 2015 when it examined whether leave to appeal should be granted (see paragraphs 62-65 above). The High Court ’ s bench was composed of three professional judges, a lay judge and a psychologist (see, in particular, paragraph 41 above). Thus, it cannot be said that there was a lack of expert advice. There is nothing to indicate that the High Court had been wrong to consider that the appointment of an expert witness in accordance with the applicant ’ s request was not the appropriate way to shed light on the applicant ’ s ability and will to protect A from persons in the family (see paragraph 39 above). The applicant, with legal aid counsel, was allowed to present evidence and give testimony in the City Court and on both occasions in the High Court (see paragraphs 22, 26 and 41 above). Taking all this into account, the Court finds that the domestic decision-making process was comprehensive and that the applicant was sufficiently involved in it as she was provided with the requisite protection of her interests and fully able to present her case (see paragraph 94 above).", "100. The Court further observes that the national courts did not only assess the situation of the applicant and A at the moment when A was taken into care, but followed up on later developments. Thus, the High Court, in its judgment of 29 April 2015, carried out an extensive assessment of the applicant ’ s recent development and situation at that time, including her father ’ s having served a prison sentence during the entire period (see, in particular, paragraphs 50-54 above). It essentially concluded that although there were positive signs, there were also a number of factors pointing in the opposite direction (see, in particular, paragraph 50 above). Many different aspects were thus taken into account in the decision-making process, not only the degree of the risk of abduction (see paragraphs 50-55 above), but also the consequences if an abduction were to happen, A ’ s signs of having suffered neglect, her vulnerability and needs (see paragraph 56 above), her interests in knowing her Roma background and culture (see paragraph 57 above), and the effects that contact would have on the foster parents and the conditions in the foster home (see paragraph 58 above). In the Court ’ s view, there are no grounds for contesting that the domestic authorities carried out a sufficiently in-depth examination of the case or that the decision was taken based on what was considered to be in A ’ s best interests.", "101. The question remains whether the High Court ’ s decision was based on an interpretation and application of the notion of the “best interests of the child” compatible with the Court ’ s jurisprudence (see paragraphs 91-92 above), taking into account the guiding principle whereby a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit (see paragraph 90 above), which is, furthermore, followed by the positive duty to take measures to facilitate family reunification as soon as reasonably feasible (see, among other authorities, K. and T. v. Finland, cited above, § 178).", "102. The Court takes note of the High Court ’ s consideration that the risk of abduction did not only relate to the moment when contact sessions would take place, but also to the danger of the foster family ’ s home and identity becoming known to the applicant ’ s family (see paragraph 60 above). While the Court accepts that the organisation of such sessions might therefore be difficult, and that any number of sessions could potentially entail that information about where A lived was revealed, it also emphasises that it was never foreseen to have more than four contact sessions a year, a factor that would reduce the risk of A ’ s whereabouts being revealed and the difficulties on the authorities.", "103. Furthermore, the decision complained of entailed the danger that family relations between the applicant and A were effectively curtailed (see paragraph 90 above). In its decision the High Court did not explicitly mention that the applicant and A had not seen each other for three years – subsequent to the few contact sessions that took place after the “car incident” (see paragraph 12 above). Moreover, the High Court ’ s decision did not focus on reuniting A and the applicant (see paragraph 93 above) or on preparing for reunification in the near future, but rather on protecting A from a potential abduction and its consequences. Taking into account the circumstances of the present case, the Court considers that there was a risk that A could completely lose contact with her mother. According to the Court ’ s jurisprudence it is imperative to consider also the long-term effects which a permanent separation of a child from her natural mother might have (see, mutatis mutandis, Görgülü v. Germany, no. 74969/01, § 46, 26 February 2004). This is all the more so as the separation of A from her mother could also lead to an alienation of A from her Roma identity.", "104. In conclusion, although the Court accepts that the decisions of the national authorities were made in what they considered to be the best interests of the child and bears in mind that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another (see paragraph 95 above), the Court holds that in the instant case, the potential negative long-term consequences of losing contact with her mother for A and the positive duty to take measures to facilitate family reunification as soon as reasonably feasible were not sufficiently weighed in the balancing exercise.", "105. In the light of the above, the Court concludes that there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "106. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "107. The applicant requested that the Court award her non-pecuniary damage on the basis of its discretion.", "108. The Government left the question of non-pecuniary damage, including the eventual amount, to the Court ’ s discretion.", "109. The Court finds that the applicant must have sustained non ‑ pecuniary damage through distress, in view of the violation found above. It awards the applicant EUR 2 5,000 in respect of non-pecuniary damage.", "B. Default interest", "110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant, who is of Roma origin, was born in 1988 and lives in Gyöngyöspata, a village of 2,800 people, about 450 of whom are of Roma origin.", "7. On 6 March 2011 the Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom ), a right-wing political party, held a demonstration in Gyöngyöspata. Between 1 and 16 March 2011, in connection with the demonstration, the Civil Guard Association for a Better Future ( Szebb Jövőért Polgárőr Egyesület ) and two right-wing paramilitary groups ( Betyársereg and Véderő ) organised marches in the Roma neighbourhood of the village.", "8. On 6, 9, and 10 March 2011, during the demonstration and the marches, there was a considerable police presence in Gyöngyöspata.", "9. At around 11 a.m. on 10 March 2 0 11 Mr J.F., the president of the local Roma minority self-governing body, informed the police that he and the mayor of the municipality had been threatened by people they did not know. The mayor reported on the same events to the police, explaining that earlier that day some fifty members of the Roma minority had confronted approximately fifteen members of the Civil Guard Association, who were joined by four or five unknown persons, one of whom had an axe and another a whip.", "10. As it appears from the case file, at around the same time four men passed by the applicant ’ s house, yelling “Go inside, you damned dirty gypsies!” At this time the applicant was outside the house in her garden together with her daughter and some acquaintances. In response to the four men, the applicant and her acquaintances told them to leave, saying that it was their village. One of the men continued threatening them by yelling that he would build a house in the Roma neighbourhood “out of their blood”. He stepped towards the fence swinging an axe towards the applicant, but was held back by one of his companions.", "11. At around 2 p.m. on the same day police officers K.K. and A.B. stopped and searched four individuals, Mr S.T., Mr F.W., Mr Cs.F., and Mr G.M. The mayor of Gyöngyöspata identified two of them, Mr S.T. and Mr F.W., as having participated in the incident that morning. The men were members of Betyársereg. Mr S.T. informed the police that he was the leader of one of the “clans” within the organisation. He said that because some members of his group, about 200 people, intended to come to Gyöngyöspata “to put the Roma situation in order”, he was there to “scout” the village. Later the same day, Mr S.T., who by then was extremely drunk, was again spotted by the police being dragged away from the Roma settlement by a female acquaintance. When questioned by the police, he said he only wanted to play football with the Roma children.", "12. On 7 April 2011 the applicant lodged a criminal complaint against “ unknown perpetrators ” with the Heves County Regional Police Department, alleging offences of violence against a member of an ethnic group, harassment and attempted grievous bodily assault. The police opened an investigation on charges of violent harassment under section 176/A (2) of the Criminal Code.", "13. In parallel, the Gyöngyös District Public Prosecutor ’ s Office opened an investigation on suspicion of harassment based on the report of a third person, Mr J.F., the president of the local Roma minority self-governing body.", "14. On 12 April 2011 the applicant was heard as a witness concerning the events. She testified that three men and a woman had passed by her house and one of them, brandishing a whip, had threatened to build a house out of her blood.", "15. At the request of her lawyer, the Gyöngyös Police Department informed the applicant that criminal proceedings had been instituted on charges of harassment on the basis of the criminal complaint lodged by Mr J.F. Subsequently, the applicant was informed that her complaint had been joined to that of Mr J.F.", "16. On 14 July 2011 the Gyöngyös Police Department discontinued these proceedings on the grounds that harassment was punishable only if directed against a well-defined person, and that criminal liability could not be established on the basis of threats uttered “in general”.", "17. The police also instituted minor offence proceedings on the ground that the impugned conduct was “ antisocial ”.", "18. On 14 September 2011 a hearing was held in the ensuing minor offence proceedings in which Mr S.T. and five other persons, Mr C. S.F., Mr F. W., Mr G.M., Mrs A.B.I., and Mr I.N.I. appeared before the Gyöngyös District Court on charges of disorderly conduct.", "All six persons subject to the proceedings denied having threatened any members of the Roma community.", "Mr J.F., questioned as a witness, maintained that two of the persons subject to the proceedings had been wielding an axe and a whip and had threatened the inhabitants of the Roma settlement that they would kill them and paint the houses with their blood.", "Mr L.T., the mayor of Gyöngyöspata, identified one of the persons as having been present in Gyöngyöspata on 10 March 2011, but could not confirm that the threats had been directed at the Roma.", "Another witness, P.F., identified three of the persons as having participated in the incident and maintained that it was Mr I.N.I. who had threatened the inhabitants of the Roma settlement.", "The applicant, who was also heard as a witness, identified Mr S.T. and Mr F.W. as having been armed and Mr S.T. as having said that he would “paint the houses with [ the applicant ’ s ] blood. ”", "19. On an unspecified date the applicant attached to the criminal file extracts from comments posted on a right-wing Internet portal in which Mr S.T. had been referred to as the man who had “enforced order among the Roma of Gyöngyöspata with a single whip”.", "20. At a further court hearing on 5 October 2011 the applicant ’ s legal representative requested that the minor offence proceedings be stayed because criminal proceedings against unknown perpetrators were pending.", "21. On 7 October 2011, following a complaint that procedural errors had been committed by the Heves County Regional Police Department in the investigation of Mr J.F. ’ s complaint, the Gyöngyös District Public Prosecutor ’ s Office informed the applicant that it had opened a separate investigation into the allegations of harassment on the basis of the applicant ’ s complaint.", "22. On 20 October 2011, in the criminal proceedings on charges of harassment, the applicant ’ s lawyer requested the Gyöngyös District Prosecutor ’ s Office to open an investigation into “violence against a member of an ethnic group” under article 174/B (1) of the Criminal Code. He maintained that the motive of the threats uttered against the applicant was her Roma origin. His allegation was supported by the fact that at the material time various paramilitary groups were “ inspecting ” the Roma settlement with the aim of “ hindering Gypsy criminality”.", "23. On 3 November 2011 the prosecutor ’ s office refused the request, finding that the use of force, the objective element of the criminal offence of “violence against a member of a group” under article 174/B (1) of the Criminal Code as in force at the material time could not be established at that stage of the proceedings.", "On 28 November 2011 the applicant reiterated her request, apparently without success.", "24. The identities of the persons who had passed by the applicant ’ s house and that of the alleged perpetrator, Mr S.T., were established by the investigating authorities. Moreover, the Police Department questioned a number of witnesses, including the applicant ’ s acquaintances present during the incident, but only two of them provided statements relevant for the case. Mr S.T. refused to testify.", "25. On 2 February 2012 the Gyöngyös Police Department discontinued the investigation into harassment on the grounds that none of the witnesses heard had substantiated the applicant ’ s allegation that she had been threatened. The Police Department noted that Mr S.T. had refused to testify and the witness testimony of Mrs I.B. had confirmed only that threats had been made, but not that they had been directed against a certain person.", "26. The applicant challenged that decision, arguing that the witness testimonies had clearly stated that Mr S.T. had uttered degrading threats and that from the circumstances of the case it was clear that they had been directed against her. She also submitted that the investigating authorities had failed to hear Mr S.T. and two other individuals suspected of the offences.", "27. On 21 March 2012 the Gyöngyös District Public Prosecutor ’ s Office upheld the first-instance decision. The Prosecutor ’ s Office found that it could not be established on the basis of the witness testimonies whether Mr S.T. had been armed and whether the threats and insults he had uttered had been directed at the applicant. Thus neither the criminal offence of harassment, nor “violence against a member of a group” could be established.", "This decision was served on the applicant on 2 April 2012, informing the applicant of the possibility to pursue substitute private prosecution proceedings.", "28. On 1 June 2012 the applicant, acting as substitute private prosecutor, lodged an application with the Gyöngyös District Court, which was declared admissible on 13 June 2012.", "29. On 6 November 2012 the criminal proceedings were discontinued since the applicant had withdrawn the charges, in her submission, because of for fear of reprisals." ]

[ "II. RELEVANT DOMESTIC LAW", "30. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows:", "Violence against any member of a national, ethnic, racial or religious group", "Article 174/B", "“(1) Whosoever uses violence against another because that other person belongs to a national, ethnic, racial or religious group, or forces that person by violence or threats to do or not to do something or to tolerate any conduct is guilty of committing an offence punishable by imprisonment of up to three years .”", "Harassment", "Article 176/A", "“ (1) Any person who, with the intention of intimidating another person or of arbitrarily disturbing the privacy or everyday life of another person, engages in the pestering of another person on a regular basis, in particular by contacting him against his will by means of telecommunication or personally, is guilty of a misdemeanour punishable by imprisonment not exceeding one year, insofar as the act did not result in a more serious criminal offence. ”", "31. On 19 April 2011 the Parliamentary Commissioner for National and Ethnic Minorities issued a report on the events of March 2011 in Gyöngyöspata. It contained the following passages:", "“ The Roma population was unable to determine, despite the difference in uniforms, whether they had been insulted by members of the Civil Guard or of another group ... Many of them maintained that although there had been a certain difference between members of the Civil Guard, Védegylet and Betyársereg, their attitude had been openly anti-Roma. This attitude had materialised mostly in the form of verbal violence: statements such as ‘ You are going to die ’, ‘ We are going to cook soap out of you ’ or ‘ We will paint the walls with your blood ’ had been uttered. No actual physical violence had occurred, mostly because the Roma population had not yielded to the provocation. Many maintained that a member of Betyársereg had threatened and attacked a young Roma woman with a whip, and it was only due to the intervention of his acquaintances that no assault had taken place.”", "As regards the demonstration of the political party held on 6 March 2011, the Ombudsman observed the following:", "“ The organiser of the event made the necessary announcement to the Gyöngyös Police Department on 2 March 2011. As regards the aim of the event, the application contained the following: ‘ We are demonstrating in the interest of the local population of Gyöngyöspata terrorised by the local Roma population earning its living from criminality ... ’", "The announcement makes it clear that the aim of the event was not to provide a forum for local and national politicians of a political party to address the participants but to ‘ send a message ’ to the presumed criminals among the Roma population.”", "Concerning the conduct of the police, the report made the following observations:", "“According to the police, ‘ [ they ] could not restrict the movement of the Civil Guard in the settlement, since no one can be hindered in their civil right to freedom of movement. According to the assessment of the police forces and the local population, they [the Civil Guard] were not in breach of the law ’. In my view, the police misinterpret the law, since the threatening presence and marches of a paramilitary group cannot be viewed as ‘ patrolling ’, monitoring or prevention of danger.", "The police can be ‘ praised ’ that by means of two weeks of continuous presence, they were able to ensure that no violence against people or property took place and the aggression remained at the level of words. Irrespective of this, I need to highlight that, despite the lacunae and contradictions in the legal provisions, the police could have been ‘ firmer ’ in their behaviour to relieve ethnic tensions.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION READ ALONE AND IN CONJUNCTION WITH ARTICLE 14", "32. The applicant submitted that the verbal abuse and threats to which she had been subjected from a member of a right-wing group had amounted to inhuman and degrading treatment. She complained that the authorities had failed in their obligation to conduct an effective investigation into the incident. She relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "33. The applicant, member of Roma minority, also complained that the domestic authorities had not taken sufficient action to establish a possible racist motive for the assault, given that she was a member of the Roma minority. She relied on Article 14 of the Convention read in conjunction with Article 3.", "Article 14 provides as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "The Government contested these arguments.", "A. The parties ’ submissions", "34. The Government submitted that this complaint was incompatible ratione materiae with the provisions of the Convention, since the impugned treatment did not reach the minimum threshold of severity required for Article 3 to come into play. There was no evidence that the applicant was a victim of any physical assault. Nor were the verbal threats and insults so serious as to attain the minimum level of severity required.", "35. In the alternative, the Government requested the Court to declare the complaint inadmissible for the failure to exhaust domestic remedies. They contended that the applicant should have pursued the substitute private prosecution proceedings, which would have provided an adequate remedy in the circumstances of the present case.", "36. The applicant maintained that she had been attacked by a member of an extremist group and it had been only by chance that she had not been severely injured. She submitted that she and her daughter had been threatened with an axe by a member of an anti-Gypsy organisation, and that she had escaped suffering actual physical harm only because of the intervention of a third person. This incident had to be assessed against other circumstances, namely that she had been subjected to continuous harassment due to the presence in Gyöngyöspata over several days of racist, paramilitary groups.", "37. The applicant further invited the Court to dismiss the Government ’ s preliminary objection concerning non- exhaustion of domestic remedies, maintaining that the substitute private prosecution proceedings did not provide an effective remedy affording redress in respect of hate crimes.", "38. The European Roma Rights Centre considered that in the circumstances of the case the applicant should not be obliged to have recourse to this remedy. Members of a disadvantaged group could not be expected to pursue substitute private prosecution proceedings in cases concerning hate crimes, since it would give the impression that the duty of public authorities to investigate was less important.", "B. The Court ’ s assessment", "39. The authorities ’ duty to prevent hatred-motivated violence on the part of private individuals, as well as to investigate the existence of a possible link between a discriminatory motive and the act of violence can fall under the procedural aspect of Article 3 of the Convention, but may also be seen to form part of the authorities ’ positive responsibilities under Article 14 of the Convention to secure the fundamental value enshrined in Article 3 without discrimination. Owing to the interplay of the two provisions, issues such as those in the present case may indeed fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require simultaneous examination under both Articles. This is a question to be decided in each case in the light of its facts and the nature of the allegations made (see Identoba and Others v. Georgia, no. 73235/12, § 63, 12 May 2015 ).", "40. In the present case, the applicant alleged that the insults and threats directed against her had had racist overtones, which rendered the treatment sufficiently severe to attain the relevant threshold under Article 3. She further alleged that the authorities had failed both to protect her from and sufficiently to investigate that bias-motivated verbal violence. Consequently, the Court prefers to subject the applicant ’ s complaints to a simultaneous dual examination under Article 3 taken in conjunction with Article 14 of the Convention (compare with Abdu v. Bulgaria, no. 26827/08, § 31, 11 March 2014).", "41. The primary issue in respect of this complaint is whether the applicant ’ s treatment at the hands of the protestors constituted ill-treatment within the meaning of Article 3. If it did not, then the issue of whether the respondent Government fulfilled its obligations under that provision taken together with Article 14 does not arise.", "42. In the present case, the Court does not find it necessary to examine the Government ’ s objection concerning the applicant ’ s failure to exhaust domestic remedies, as the present complaint is in any event inadmissible for the reasons set out below.", "43. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative by definition, and depends on all the circumstances of the case, including the duration of the ill-treatment, its physical and mental effects and, in some cases, the victim ’ s sex, age and state of health. Further factors to be taken into account include the purpose of the ill-treatment and the underlying intention or motivation (see, for example, El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 196, ECHR 2012). The Court has considered some types of treatment “inhuman”, particularly where it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV).", "44. Even where the victim did not suffer serious or lasting physical injuries, the Court has held that corporal punishment inflicted on an adolescent should be described as “degrading” in so far as it constituted an assault on “precisely that which it is one of the main purposes of Article 3 to protect, namely a person ’ s dignity and physical integrity” (see Tyrer v. United Kingdom, 25 April 1978, § 33, Series A no. 26). By the same token, in a case concerning harassment of a person suffering from physical and mental disabilities, the Court ruled that the feelings of fear and helplessness caused by the ill-treatment were sufficiently serious to attain the level of severity required to fall within the scope of Article 3 of the Convention, even though the applicant had suffered physical injuries on only one occasion (see Đorđević v. Croatia, no. 41526/10, § 96, ECHR 2012). The Court has on several occasions examined from the angle of Article 3 situations in which the applicants had not suffered any physical injuries (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 131, ECHR 2010, concerning threats of torture, and Kurt v. Turkey, 25 May 1998, §§ 133-34, Reports of Judgments and Decisions 1998-III, relating to the disappearance of a relative).", "45. Moreover, the Convention organs have accepted, in the context of acts attributable to State officials, that discrimination based on race could, in certain circumstances, of itself amount to “degrading treatment” within the meaning of Article 3 (see Horváth and Vadászi, cited above, and East African Asians v. United Kingdom, nos. 4403/70 and others, Commission report of 14 December 1973, Decisions and Reports 78, pp. 57 and 62, §§ 196 and 207). Discriminatory remarks and racist insults must in any event be considered as an aggravating factor when assessing a given instance of ill-treatment in the light of Article 3 (see Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, § 111, ECHR 2005-VII (extracts), and B.S. v. Spain, no. 47159/08, § 41, 24 July 2012). This approach was confirmed in respect of treatment attributable to private individuals (see Identoba and Others, cited above, § 65; Abdu, cited above, §§ 23-24; and Koky and Others v. Slovakia, no. 13624/03, §§ 223-25, 12 June 2012 ).", "In the context of religious intolerance, the Court has held that the guarantees under Article 3 could not be limited to acts of physical ill-treatment, but could also cover the infliction of psychological suffering by third parties (see Begheluri and Others v. Georgia, no. 28490/02, § 100, 7 October 2014).", "46. Turning to the present case, the applicant admitted that she had not suffered physical injury at the hands of Mr S.T. or any other person participating in the marches on 10 March 2011; her complaint was based on the psychological effect which the conduct of Mr S.T. had had on her and other members of the Roma minority. She stressed that the purpose of the demonstration had been to spread fear among the Roma in Gyöngyöspata and that when the incident had occurred her young child had been with her.", "47. In the light of the evidence before it, in particular the report of the Parliamentary Commissioner for National and Ethnic Minorities, the Court accepts that the behaviour of those participating in the marches was premeditated and motivated by ethnic bias. It also notes that the marches continued for about two weeks after the incident in question and were designed to cause fear among the Roma minority (see paragraph 3 1 above).", "48. Nonetheless, the applicant ’ s situation is not comparable to the case of P.F. and E.F. v. the United Kingdom, where young schoolgirls and their parents were found to have been subjected to considerable mental suffering when they were exposed to two months of daily abuse – including “throwing bricks, rubbish, balloons filled with urine and dog excrement, firecrackers and, on one occasion, an explosive device ...; shouting death threats, sectarian abuse and obscenities of a sexual nature; displaying explicit pornographic material; accusing priests ... of being paedophiles; spitting at the children and their parents; wearing masks; and using whistles, sirens, horns and other instruments to create an intimidating atmosphere” (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, 23 November 2010).", "49. The case is also to be distinguished from the cases of Begheluri and Others ( cited above ) and Members of the Gldani Congregation of Jehovah ’ s Witnesses and Others v. Georgia (no. 71156/01, 3 May 2007), where the threats directed against members of the religious community were accompanied by searches, severe beatings, robbery and a series of humiliating and intimidating acts. The continuous organised harassment was designed to force the applicants to act against their will and conscience, and took place within a general national climate of religious intolerance.", "50. Lastly, the applicant ’ s situation stands in contrast to Identoba and Others (cited above), where the verbal abuse and serious threats directed against the applicants – marchers promoting lesbian, gay, bisexual and transgender rights – were discriminatory. They were followed by actual physical assault on some of the applicants in circumstances where the demonstrators were surrounded by an angry mob that outnumbered them.", "51. It the present case, although the right-wing groups were present in the applicant ’ s neighbourhood for several days, they were continuously monitored by the police. Indeed, throughout most of that period there was a considerable police presence in the municipality. As it appears from the case file, no actual confrontation took place between the Roma inhabitants and the demonstrators. Mr S.T. ’ s utterances and acts, although openly discriminatory and performed in the context of marches with intolerant overtones, were not so severe as to cause the kind of fear, anguish or feelings of inferiority that are necessary for Article 3 to come into play.", "52. In view of the foregoing, the Court finds that the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention has not been attained. Accordingly, the Court rejects the applicant ’ s complaint about the authorities ’ failure to fulfil their positive obligations under Article 3 read in conjunction with Article 14 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "53. The applicant complained that the authorities had failed to apply relevant, in particular criminal - law, measures against the participants of the anti-Roma rallies so as to discourage them from the racist harassment that eventually took place. She also maintained that by failing to properly investigate this incidence of racist verbal abuse, the authorities had neglected their positive obligations. She relied on Article 8 of the Convention, which provides as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "54. The Government contested those arguments.", "A. As regards the complaint concerning the domestic authorities ’ failure to carry out an effective investigation", "1. Admissibility", "(a) The parties ’ submissions", "55. The Government requested the Court to declare this complaint inadmissible for failure to exhaust domestic remedies. They submitted that the applicant should have pursued the substitute private prosecution proceedings; and the criminal complaint lodged by the applicant against unknown perpetrators could not be regarded as an effective remedy for the domestic authorities ’ alleged failure to carry out an effective investigation. The alleged violation of the State ’ s procedural obligations under Article 3 could only have been remedied by the pursuit of the substitute private prosecution proceedings. The substitute private prosecution procedure had been conceived to redress faults allegedly committed by the authorities in criminal proceedings.", "56. The Government further submitted that the Court ’ s findings in Borbála Kiss v. Hungary (no. 59214/11, §§ 25-26, 26 June 2012) and Gubacsi v. Hungary (no. 44686/07, §§ 31-32, 28 June 2011) were not applicable in the present case, since in those cases the reason for dismissing the Government ’ s preliminary objection of non-exhaustion of domestic remedies was the apparent legal uncertainty concerning the substitute private prosecution proceedings. In the present case, however, the applicant had been informed by means of the decision of 21 March 2012 of the Gyöngyös Public Prosecutor ’ s Office about the possibility of instituting private prosecution proceedings (see paragraph 27 above). She had availed herself of that remedy, but had subsequently dropped the charges. Furthermore, a court judgment in such proceedings could have also opened the way for a constitutional complaint. The Government suggested that the Court should take the same approach as it had in the case of Horváth and Vadászi v. Hungary ((dec.) no. 2351/06, 9 November 2010), which was declared inadmissible for non-exhaustion of domestic remedies on the ground that the applicants had not raised the issue of the racist motives of the alleged criminal offence in the substitute private prosecution proceedings.", "57. The Government also argued that the admittedly low success rate of substitute private prosecution proceedings did not mean that this procedure was inefficient, since the dismissal of such applications was mainly due to incompliance with the formal requirements of private prosecution.", "58. The applicant, for her part, submitted that substitute private prosecution proceedings did not provide an effective remedy affording redress in respect of hate crimes, in particular given the difficulties in obtaining evidence, for example as to the intent of the perpetrator. She argued that the low success rate of substitute private prosecution proceedings proved that they had no prospect of success either in her case or in general. Lastly, she maintained that she had decided to drop the charges against Mr S.T. since she had serious reasons to believe that the Hungarian authorities were unwilling to protect her from further racist harassment which was likely to follow if she pursued prosecution.", "59. The European Roma Rights Centre submitted that Roma persons could not be expected to pursue substitute private prosecution proceedings in cases involving failures by the domestic authorities to investigate hate crimes. In its view, the requirement for them to institute substitute private prosecution proceedings would be tantamount to exempting the public authorities from investigating hate crimes. Furthermore, it would be particularly unfair to require a member of a disadvantaged group to perform investigative activities. Lastly, if the failure to conduct effective investigations was due to institutional racism, then to require Roma victims to pursue substitute private prosecution would expose them to the consequences of challenging an entrenched aspect of anti-Gypsyism.", "(b) The Court ’ s assessment", "60. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Where there is a choice of remedies open to an applicant, Article 35 must be applied to reflect the practical realities of the applicant ’ s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see, inter alia, Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000, and Krumpel and Krumpelova v. Slovakia, no. 56195/00, § 43, 5 July 2005). Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court tends to interpret the requirement of exhaustion of domestic remedies in the applicant ’ s favour (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 110, ECHR 2008 (extracts), and the cases cited therein). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 56, 12 April 2007 and the cases cited therein).", "61. In the instant case the applicant lodged a criminal complaint against unknown perpetrators on charges of “violence against a member of a group”. There is nothing to indicate that the ensuing proceedings were in principle not capable of leading to the identification and, if appropriate, punishment of those responsible.", "62. In the Court ’ s view, by virtue of that remedy the State was afforded an opportunity to put matters right. The applicant must therefore be regarded as having brought the substance of her complaint to the notice of the national authorities and as having sought redress through the domestic channels for her complaint. She was thus not required in addition to pursue the matter by instituting substitute private prosecution proceedings, which would have had the same objective as her criminal complaint (see, mutatis mutandis, Borbála Kiss, cited above, § 26, and Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006).", "63. In particular, the Court cannot subscribe to the Government ’ s view that in the cases of Borbála Kiss and Gubacsi, the applicants were not required to pursue private prosecution proceedings because of the uncertainty prevailing at that time concerning the effectiveness of that legal avenue. Rather, it was the fact that the applicants had already lodged a criminal complaint concerning the alleged ill-treatment that led the Court to conclude that they could not be expected to have lodged a second, virtually identical but nominative complaint about particular individuals (see Borbála Kiss, cited above, § 26, and Gubacsi, cited above, § 32).", "64. As to the Government ’ s reference to the application of Horváth and Vadászi, the Court considers that the related conclusions reached in that case are not applicable to the present circumstances, since the private prosecution proceedings in that case did not concern racial discrimination but endangering minors. The effectiveness of such proceedings in examining a claim of racial discrimination could not therefore be examined.", "65. It follows that the Government ’ s preliminary objection as to non-exhaustion of domestic remedies must be dismissed.", "66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) The parties ’ submissions", "67. The applicant submitted that the law-enforcement authorities had not paid attention to the investigation of racist motives. She pointed out that her lawyer had requested the police to concentrate the investigation on charges of violence against a member of a group, instead of harassment, since the assault against her had been motivated by racial bias; nonetheless, the police had disregarded that aspect of her case. She argued that the police had ignored the evidence supporting her allegations, namely the fact that Mr S.T. was a member of an extreme right-wing organisation, his statements given to a police officer and the manner in which the incident had been described on a right-wing online news portal.", "68. The applicant also argued that the ineffectiveness of investigations into hate crimes committed against members of vulnerable minority groups and the failure to take such crimes seriously was a structural problem in Hungarian law-enforcement practice.", "69. The applicant further complained of several perceived omissions on the part of the investigating authorities. In particular, the police had not promptly informed her that her case had been joined to one concerning the criminal complaint lodged by Mr J.F. As a consequence, the domestic authorities had failed to follow up the applicant ’ s criminal complaint promptly: the investigation into her specific allegations had not been opened until seven months after the incident, in October 2011. Moreover, the police had not taken the necessary measures in due time to hear witnesses, who were first questioned some nine months after the incident. Nor had the witnesses been confronted with each other or with her to clarify certain contradictions in their testimonies.", "70. Furthermore, the domestic authorities had ignored the evidence pointing to a racist motive of the incident such as the perpetrator ’ s membership of Betyársereg, a paramilitary right-wing organisation, his statements given to the police about his intention “to enforce public order in the local Roma community”, and his subsequent comments on an Internet portal about enforcing “order among the Roma of Gyöngyöspata with a single whip”.", "71. The Government submitted that the domestic authorities had complied with their positive obligations in that they had conducted an effective investigation into the applicant ’ s complaint.", "72. In the Government ’ s view, the criminal investigation undertaken after the rallies into the conduct of Mr S.T. had complied with the State ’ s procedural obligation to establish the criminal responsibility of the perpetrator and to unmask his alleged racist motives. They submitted that by alleging that the investigations had been inadequate, the applicant was seeking the reassessment of evidence obtained in the investigations. Moreover, her perceived argument that the domestic authorities should have applied a lower standard of proof to establish the criminal responsibility of the alleged perpetrator was misplaced, since it was not the Court ’ s role to interpret the domestic law.", "73. As regards the other alleged shortcomings in the investigation, the Government pointed out that the applicant had been confronted with Mr S.T. in the course of the minor-offence proceedings, and that the record of the confrontation had been included in the file concerning the charges of harassment. As regards the allegation that the applicant ’ s witnesses had been heard belatedly, this had had no influence on the outcome of the case since neither of them had claimed that they did not remember the incident owing to the lapse of time.", "74. The Government also submitted that at the material time, right-wing paramilitary marches were a new phenomenon. The legislator realised the unlawful character of this conduct and adopted Act no. XL of 2011 on the amendment of the Criminal Code, extending the definition of violence against a member of a group to conducts of provocative anti-social behaviour causing fear. This provision, however, could not have a retroactive effect and was not applicable to the applicant ’ s complaint.", "75. The European Roma Rights Centre viewed the issue in the present case through the lens of “anti-Gypsyism” and maintained that there had been an increase in anti-Roma rhetoric, racism and physical violence against the Roma in Hungary. It pointed out that the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, Amnesty International and the European Union Fundamental Rights Agency (“the FRA”) had all reported patterns of anti-Roma attacks, including harassment, assault and threats, and the growth of paramilitary organisations with racist platforms.", "76. The European Roma Rights Centre also submitted that the general situation in Hungary was one of institutional racism against the Roma minority within State bodies, evidenced by the “failure of the authorities to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin”. It relied on the FRA ’ s thematic report entitled “ Racism, discrimination, intolerance and extremism: learning from experiences in Greece and Hungary”, which showed that the laws on investigating and prosecuting racially motivated crimes were not being implemented effectively. It also pointed out that the report on the visit to Hungary of the Council of Europe Commissioner for Human Rights from 1 to 4 July 2014 expressed concerns about the Hungarian authorities ’ failure to identify and respond effectively to hate crimes.", "77. The European Roma Rights Centre further argued that vulnerable victims alleging racially motivated violence were unlikely to be able to prove beyond reasonable doubt that they had been subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. It maintained that the Court ’ s analysis under Article 14 read in conjunction with the procedural limb of Article 2 or Article 3 (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII, and Šečić v. Croatia, no. 40116/02, 31 May 2007) was limited in that it had not addressed the question whether the failure to carry out an effective investigation in general had been due to institutional racism. It invited the Court to find that the failures in investigations into hate crimes overall were due to discrimination, depriving the Roma of access to the evidence needed to prove a violation of Article 14 read in conjunction with the procedural limb of Article 3.", "(b) The Court ’ s assessment", "78. The notion of “private life” within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of a person ’ s physical and social identity. The Court has accepted in the past that an individual ’ s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group ’ s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 58, ECHR 2012 ).", "79. The Court ’ s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse (see Khan v. Germany, no. 38030/12, § 35, 23 April 2015, and Costello - Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C).", "80. Turning to the circumstances of the present case, the Court notes that the applicant, who is of Roma origin, felt offended and traumatised by the allegedly anti-Roma rallies organised by different right-wing groups between 1 and 16 March 2011 in the predominantly Roma neighbourhood of Gyöngyöspata and, in particular, the racist verbal abuse and attempted assault to which she had been subjected on 10 March 2011, in the presence of her child. For the Court, the central issue of the complaint is that the abuse that occurred during ongoing anti-Roma rallies was directed against the applicant for her belonging to an ethnic minority. This conduct necessarily affected the applicant ’ s private-life, in the sense of ethnic identity, within the meaning of Article 8 of the Convention.", "81. As to the applicant ’ s contention that the investigation of the alleged racist abuse was ineffective, the Court recalls that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Tavlı v. Turkey, no. 11449/02, § 28). Moreover, as far as positive obligations under Article 8 are concerned, this is an area in which Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94).", "82. The Court ’ s task is not to substitute itself for the competent Hungarian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković v. Croatia, no. 38478/05, § 46, 5 March 2009).", "83. When investigating violent incidents, State authorities have an additional duty under Article 3 of the Convention to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have also played a role in the events (see Abdu, cited above, § 44, and Šečić, cited above, § 66). Furthermore, the Court has previously found under Article 8 of the Convention that acts of violence such as inflicting minor physical injuries and making verbal threats may require the States to adopt adequate positive measures in the sphere of criminal-law protection (see Sandra Janković, cited above, § 47).", "84. The Court therefore considers that a similar obligation might arise in cases where alleged bias-motivated treatment did not reach the threshold necessary for Article 3, but constituted an interference with the applicant ’ s right to private life under Article 8, that is, when a person makes credible assertions that he or she has been subjected to harassment motivated by racism, including verbal assaults and physical threats. In this connection it stresses that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V). Moreover, in the Court ’ s view, in situations where there is evidence of patterns of violence and intolerance against an ethnic minority (see paragraphs 75-76 above), the positive obligations incumbent require a higher standard of States to respond to alleged bias-motivated incidents.", "85. The Court will therefore examine whether the Hungarian authorities, in dealing with the applicant ’ s case, were in breach of their positive obligations under Article 8 of the Convention, and in particular whether the manner in which the criminal-law mechanisms were implemented in the instant case were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 8 of the Convention.", "86. In the present case the criminal complaint into the verbal abuse and threats directed against the applicant by the participants of the rallies was lodged less than a month after the incident, on 7 April 2011. The Police Department joined the applicant ’ s case to another criminal complaint concerning the same events and initiated an investigation into the offence of harassment. Following the applicant ’ s enquiry about the outcome of her criminal complaint, a separate investigation into her allegations was opened on 7 October 2011.", "87. In the initial criminal complaint of 7 April 2011 the applicant had already submitted that she had been victim of a racially motivated attack, alleging that it constituted violence against a member of a group and harassment. Nonetheless, in the reinitiated investigation the law-enforcement authorities concentrated again on harassment. In her subsequent requests of 20 October and 28 November 2011 to have the scope of the investigation extended to “violence against a member of an ethnic group” the applicant submitted a detailed description of the events and argued that the anti-Roma motive had been an important element and should have been assessed in the investigation. However, her submissions were to no avail, the Prosecutor ’ s Office finding that the use of force, an objective element of the alleged crime, could not be established. Thus, the police confined themselves to assessing whether Mr S.T. ’ s threats had been directed against the applicant or uttered “in general” and they found that the threats not being addressed directly to the applicant, the offence of harassment had not occurred.", "88. The impugned insults and acts took place during an anti-Roma rally lasting for several days and came from a member of an openly right-wing paramilitary group. Because of these factual circumstances the Court considers that there were grounds to believe that it was because of her Roma origin that the applicant had been insulted and threatened by a member of a right-wing paramilitary group. Thus, it was essential for the relevant domestic authorities to conduct the investigation in that specific context, taking all reasonable steps with the aim of unmasking the role of racist motives in the incident. The necessity of conducting a meaningful inquiry into the discrimination behind the incident was indispensable given that it was not an isolated incident but formed part of the general hostile attitude against the Roma community in Gyöngyöspata (see paragraph 31 above).", "89. As to the criminal-law mechanisms in the Hungarian legal system the Court notes that Article 174/B (violence against a member of a group) and Article 269 (incitement against a group), as in force at the material time, appear to provide an apt legal basis for launching a criminal investigation into alleged bias-motives. However, in the applicant ’ s case the law-enforcement authorities found that an objective element of the crime of violence against a member of a group could not be established and there were no grounds to pursue the investigations into that offence. The Court also observes that the provision of the Criminal Code on harassment does not contain any element alluding to racist motives.", "90. Having regard to the specific and substantiated allegations made by the applicant during the investigation and the factual circumstances of the incident, the competent authorities had evidence at their disposal suggesting a racist motive for the verbal violence directed against the applicant. However, the legal provisions, as in force at the material time, provided no appropriate legal avenue for the applicant to seek remedy for the alleged racially motivated insult.", "91. In the Court ’ s view, this state of affairs did not provide adequate protection to the applicant against an attack on her integrity and showed that the manner in which the criminal-law mechanisms were implemented in the instant case were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 8 of the Convention.", "B. As regards the complaint concerning the authorities ’ inaction during the rallies", "1. The parties ’ submissions", "92. The Government urged the Court to declare the complaint inadmissible for failure to exhaust domestic remedies. In their view, the applicant could have brought a civil action for damages, claiming a violation of her personality rights.", "93. The Government relied on the findings of a report by the Parliamentary Commissioner for National and Ethnic Minority Rights, according to which “by means of two weeks of continuous presence, the police was able to ensure that no violence against people or property took place and the aggression remained at the level of words”. They stated that the Hungarian authorities had taken all the necessary steps to protect the Roma minority in Gyöngyöspata by policing the rallies.", "94. The Government also maintained that when deciding on the dispersal of the rallies, the domestic authorities had had to strike a fair balance between the applicant ’ s right under Article 8 and that of the demonstrators under Articles 10 and 11 of the Convention.", "95. As regards the possibility of lodging a civil action for damages against the authorities, the applicant argued that the Government had not submitted any relevant case-law to support their assertion as to the availability and efficacy of that remedy in any relevant context.", "96. The applicant further contended that by promptly applying criminal or at least minor - offence sanctions against the participants of the rallies as of 1 March 2011, the police could have prevented the escalation of the situation and the racist harassment that she had suffered. By failing to do so, they had infringed their positive obligation under Article 8 to protect the applicant ’ s right to respect for her private life.", "2. The Court ’ s assessment", "97. The Court does not consider it necessary in the present case to rule on the Government ’ s objection as to the non-exhaustion of domestic remedies, as this complaint is in any event inadmissible for the following reasons.", "98. As it has been outlined above, the concept of private life extends also to the sphere of the relations of individuals between themselves (see paragraph 80 above). States have a duty under Article 8 to protect the physical and moral integrity of an individual from other persons (see A. v. Croatia, no. 55164/08, § 60, 14 October 2010).", "99. Nonetheless, as the Court held in the context of Articles 2 and 3, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation on the authorities to take preventive operational measures in certain well-defined circumstances to protect an individual must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Đorđević v. Croatia, no. 41526/10, § 139, ECHR 2012, and Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII). For the Court, the same consideration holds true as regards the State ’ s positive obligation under Article 8 to protect an individual ’ s private life from the acts of another individual, while taking into account the wide margin of appreciation the Contracting States enjoy in this area (see paragraphs 80 above). In this context, the Court accepts that in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration for the protection of an individual ’ s private life under Article 8. Nonetheless, in the present case, the applicant ’ s complaint was merely directed against the authorities ’ failure to apply criminal-law sanctions against the demonstrators to prevent an infringement of her private life.", "100. In this respect, the Court finds that another relevant consideration in the assessment of State ’ s positive obligations in this area is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Members of the Gldani Congregation of Jehovah ’ s Witnesses and Others v. Georgia, no. 71156/01, § 96, 3 May 2007, and Osman, cited above, § 116 ).", "101. Although the Court accepts that the ongoing demonstrations may have been stressful for the applicant, it considers that the response of the police to the events as they unfolded was reasonable in the circumstances and not incompatible with the authorities ’ duty under Article 8. The impugned operational decision of the police about the manner in which it maintained order and security during the marches fell within the ambit of legitimate police discretion. Thus, there has been no appearance of a breach of the State ’ s positive obligation implied by Article 8 of the Convention to safeguard the applicant ’ s physical and psychological integrity.", "102. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "103. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "104. The applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage.", "105. The Government found that amount excessive.", "106. The Court considers that the applicant must have suffered some non-pecuniary damage on account of the violation found and awards her the full sum claimed.", "B. Costs and expenses", "107. The applicant also claimed EUR 3,717 plus VAT for the costs and expenses incurred before the Court. This sum corresponds to fifty-nine hours ’ legal work billable by his lawyer at an hourly rate of EUR 63 plus VAT.", "108. The Government contested this claim.", "109. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to award the full sum claimed, that is, EUR 3,717.", "C. Default interest", "110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant was born in 1971 and lives in Devecser. The second applicant was born in 1979 and lives in Ajka. The applicants are of Roma origin.", "6. Mr G.F., a Member of Parliament from the right-wing Movement for a Better Hungary Party ( Jobbik Magyarországért Mozgalom Párt, hereinafter referred to as Jobbik ), announced that a demonstration would take place on 5 August 2012 in Devecser under the slogan “Live and let live”. The reason for the demonstration was that riots had broken out between Roma and non-Roma families of the municipality on 25 July 2012. Following that incident, seventeen people were questioned by the police, and an enhanced police presence was ordered in the municipality, with the constant surveillance of streets inhabited by the Roma community.", "7. In the applicants ’ submission, the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts. The police had been informed through official sources that in addition to the members of Jobbik, nine far-right groups, known for their militant behaviour and anti-Roma and racist stance, would also be present at the demonstration. They had also been informed that the demonstrators would seek conflict with the police and the minority community. According to the far-right organisations ’ websites, the demonstration was aimed “against Roma criminality”, “against the Roma of Devecser beating up Hungarians” and “against the Roma criminals unable to respect the rules of living together”.", "8. Devecser was classified as special zone of risk, ( kiemelten veszélyeztetett ) and eight police patrol units were dispatched to the municipality to ensure an increased presence and carry out checks as of 1 August 2012. About 200 police officers were deployed in Devecser to secure the demonstration, including members of the Operational Squad. On the day of the demonstration checks were increased throughout the county, including traffic check points. The Veszprém county police department also asked members of the Ethnic Roma Self-Government of Veszprém county to inform the Roma population about the upcoming demonstration.", "9. About 400 to 500 people were present at the demonstration. Mr G.F. announced that the demonstration was about the justified self-protection of Hungarians. Invoking the crimes committed by members of the Roma community, he demanded the reintroduction of the death penalty and threatened the Roma community that if the criminality continued, Jobbik would return to Devecser. He also announced that the Roma were not “normal”.", "10. In his speech, Mr L.T., leader of the Sixty - four Counties Youth Movement ( Hatvannégy Vármegye Ifjúsági Mozgalom ), mentioned that Roma criminality was omnipresent in the country and wherever this ethnic group appeared, only destruction, devastation and fear came. In his opinion the Roma population wanted to exterminate Hungarians, which left the latter with the choice of becoming victims or fighting back. Mr A.L., leader of the Civil Guard Association for a Better Future ( Szebb Jövőért Polgárőr Egyesület ) stated that hundreds of Hungarians were killed yearly by the Roma with the approval of the State. In his view there was a destruction of civilians going on in Hungary. He called on the demonstrators to sweep out the “rubbish” from the country, to revolt and to chase out the treasonous criminal group supressing Hungarians. He closed his speech by saying that the Hungarians were entitled to use all means to achieve those goals. Mr Zs.Ty., leader of the Outlaws ’ Army ( Betyársereg ), spoke about the characteristics of a racial war and an ethnic-based conflict. He said that before such conflict escalated, a message should be sent. He mentioned that the Roma minority was genetically encoded to behave in a criminal way and declared that the only way to deal with the Roma was by applying force to “ stamp out this phenomenon that needs to be purged”. Mr I.M., the leader of the New Guard ( Új Gárda ), called on the Government to end Roma criminality and warned that if Hungarians ran out of patience, there would be trouble. Finally, Mr I.O., the vice-president of Jobbik in Veszprém county, told participants that there would be no mercy and that every criminal act and every prank would be revenged; if the State authorities did not live up to their obligations to protect civilians from Roma criminality, this would be done by the population itself.", "11. Following the speeches, the demonstrators marched down Vásárhelyi Street, the neighbourhood of Devecser inhabited by the Roma community, chanting “Roma criminality”, “Roma, you will die”, and “We will burn your house down and you will die inside”, “We will come back when the police are gone”, and obscene insults. They also called on the police not to protect the Roma residents from the demonstrators and to let them out from their houses. Sporadically, quasi ‑ military demonstrations of force occurred, involving military-style uniforms, formations, commands and salutes.", "12. Certain demonstrators covered their faces, dismantled the cordon and were equipped with sticks and whips. Those leading the demonstration threw pieces of concrete, stones and plastic bottles into the gardens, encouraged by the crowd following them.", "13. The Government and the applicants disagreed as to other aspects of the demonstration.", "14. During the march through the Roma neighbourhood, which lasted approximately thirty minutes, both applicants stayed in the gardens of houses in Vásárhelyi Street. The first applicant submitted that he had overheard the police stating on their radio that the demonstrators were armed with sticks, stones, whips and metal pipes. Furthermore, one of his acquaintances had been injured by a stone thrown into his garden, but the police officer to whom the applicant had reported the incident had not taken any steps. In the second applicant ’ s submission, two of the demonstrators leading the march had had a list and had pointed out to the crowd the houses that were inhabited by Roma people.", "15. According to the applicants, the police were present during the demonstration but remained passive and did not disperse the demonstration; nor did they take any steps to establish the criminal responsibility of the demonstrators. The report of the police ’ s contact officer noted that the organiser of the demonstrations, Mr G.F. had not been able to keep the events under control and had been unwilling to confront the participants.", "16. According to the Government, the commander of the security forces immediately took action when the participants started to act violently, managed the crowd appropriately and separated hostile demonstrators from others.", "17. On 21 September 2012 the Minister of the Interior, reacting to a letter from civil society organisations, informed the public that the conduct of the police had been adequate and that forty people, including five demonstrators, had been questioned by the police. Following a statement from two injured persons, the police opened criminal proceedings against unknown perpetrators on charges of “disorderly conduct” ( garázdaság ), which was subsequently amended to “violence against a member of a group” ( közösség tagja elleni erőszak). It appears from the case file that a further criminal investigation was opened into charges of “violence against a member of a group” several months after the incident.", "18. In November 2012 the Office of the Commissioner for Fundamental Rights published a report on the events. The report concluded that the police had failed to assess whether the event had infringed the rights and freedoms of others. Such assessment would have led to the conclusion that the people living in the neighbourhood were forced as a “captive audience” to listen to the injurious statements that had been made. According to the report, the demonstration had been used to incite ethnic tensions on the basis of the collective guilt of the ethnic group. It went on to state that by not enforcing the limits of freedom of assembly, the police had caused anomalies in respect of the right to peaceful assembly and the Roma population ’ s right to dignity and private life. It also pointed out that certain speeches had been capable of inciting hatred, evidenced by the fact that stones had been thrown at Roma houses following the speeches. The Commissioner found it regretful that the police had failed to identify the perpetrators on the spot, which was inconsistent with their task of preventing and investigating crimes and with the right to dignity, non-discrimination and physical integrity.", "19. Both applicants complained to the Veszprém county police department about the failure of the police to take measures against the demonstrators, thereby endangering their life and limb and their human dignity.", "20. On 22 November 2012 the police department dismissed the applicants ’ complaint, finding that the conditions for dispersal of the demonstration had not been met, since any illegal or disorderly conduct on the part of the demonstrators had ceased within ten minutes. The police department held that the demonstration had remained peaceful, since, apart from the throwing of stones, no actual conflict had broken out between the police, the demonstrators and members of the Roma minority. It also found that only a small group of demonstrators had been armed with sticks and whips. As regards the failure of the police to carry out identity checks on demonstrators and to hold suspects for questioning ( előállítás ), the police department found that such measures would only have aggravated the situation and strengthened the demonstrators ’ hostility towards the police.", "21. On appeal, the National Police Service upheld the first-instance administrative decision. Following a request for judicial review lodged by the applicants, it nonetheless overruled the first-instance decision and remitted the case to the county police department.", "22. By its decisions of 29 October 2013 and 25 June 2014 the Veszprém county police department dismissed both applicants ’ complaints again on identical grounds. The police department found that the demonstration had remained essentially peaceful, because the majority of the participants had not aligned themselves with those committing violent acts. The police department observed that there had been grounds to disperse the demonstration, since some participants had been armed and there had been a reasonable suspicion that some of them had committed the criminal offence of violence against a member of a group. Nonetheless, it concluded that dispersing the demonstration would have carried a high risk since, based on previous experience, those participants intent on violence would probably have turned against the police.", "23. The National Police Service upheld those decisions on appeal on 19 December 2013 and 5 August 2014, respectively, stating that although under section 14 of Act no. III of 1989 (“the Freedom of Assembly Act”) the police had been under an obligation to disperse the demonstration, they could refrain from such action if it carried a higher risk than allowing the demonstration to continue. Furthermore, the commander of the operation had been right not to apply measures against certain individuals, since that would have led to a clash between the demonstrators and the police, endangering not only the police themselves, but the local residents too. The second-instance authority acknowledged that the unlawful acts of certain demonstrators had infringed the fundamental rights of the applicants, but concluded that seeking to protect those rights would have caused more harm than good.", "24. The applicants sought judicial review of those decisions, arguing that under section 14 of the Freedom of Assembly Act the police were under an obligation to disperse non-peaceful demonstrations irrespective of the proportionality of such a measure.", "25. In its judgments delivered on 3 December 2014 and 19 March 2015 the Veszprém Administrative and Labour Court dismissed the applicants ’ claims. It found that although the non-peaceful character of a demonstration could serve as grounds for its dispersal, this was only so if the demonstration as a whole had ceased to be peaceful. Sporadic acts of violence, as in the present case, could not serve as legitimate grounds for dispersal. The court also considered that the police had a margin of discretion when deciding on the dispersal of a demonstration. As regards the applicants ’ claim that the police should have taken law-enforcement measures against certain individuals, the court pointed out that such actions would have led to clashes between the demonstrators and the police. The court therefore concluded that even if there had been grounds to terminate the demonstration or to apply law-enforcement measures against certain individuals, the police had been justified in not having done so. It added that, in any event, the potential infringement of the applicants ’ fundamental rights had been caused not by the alleged inactivity of the police, but by the conduct of the demonstrators.", "26. The applicants lodged a petition for review with the Kúria. In its judgments of 23 September 2015 and 6 January 2016 the Kúria reiterated that under the Freedom of Assembly Act no. III of 1989 the dispersal of demonstrations was a possibility rather than an obligation for the police and restrictions on the fundamental rights of others did not in themselves justify the restriction of the right of assembly. Furthermore, dispersal could only be used as a last resort, if the demonstration was likely to entail serious consequences. Relying on the report by the Commissioner for Fundamental Rights, the Kúria considered that despite certain violent actions, the demonstration had on the whole remained peaceful. The court went on to find that the police had been under an obligation to respect the principle of proportionality and had been right to conclude that dispersing the march could have caused more serious prejudice to the Roma community than allowing the demonstration to continue in a controlled manner.", "As regards the lack of individual measures, the Kúria found that an operational unit of the police ( csapaterő ) had been deployed to maintain order, and that such a measure had not allowed for police officers to single out and act against individual demonstrators.", "The Kúria also rejected the applicants ’ argument that the police had done nothing to protect them and other members of the Roma minority. It found it established that the police had used a cordon to contain the demonstrators and had ensured the subsequent prosecution of perpetrators by logging events, and taking video footage and photographs.", "27. The applicants, together with the Hungarian Helsinki Committee, lodged a criminal complaint concerning the speeches delivered at the demonstration and the attacks to which the Roma community had been subjected. The case was subsequently joined to a criminal complaint lodged by third persons concerning the same issue. On 22 November 2012 the Veszprém county police department opened an investigation into charges of violence against members of a group under Article 174/B of the Criminal Code. The police department opened a separate investigation, under Article 269 point (b) of the Criminal Code (incitement against a group), into the issue of the speeches delivered during the demonstration.", "28. The investigation into incitement against a group was discontinued by the police department on 24 September 2013. The police department considered that although the content of the speeches had been injurious to the Roma minority and was morally reprehensible, it could not be classified as a crime. In particular, the speeches had not been meant to trigger unconsidered, instinctive, harmful and hostile reactions. By the same decision, the police department informed the applicants that it had asked the prosecutor ’ s office to press charges against an individual for violence against member of a group.", "29. Following a complaint lodged by the applicants, the Veszprém County Prosecution Office upheld the decision to discontinue the investigation. It held that the legally protected interest in the criminalisation of incitement against a group was public morale. Thus the applicants were not victims of the alleged criminal act and had no standing to lodge a complaint against the decision to discontinue the investigation. However, the county prosecution office re-examined the decision on its own motion. It held that the speeches delivered in Devecser contained abusive, demeaning statements concerning the Roma minority and might have contained statements that evoked hatred, but that they had not provoked active hatred and had not called on the audience to take violent action against the local Roma.", "30. As regards the investigation into the offence of violence against a member of a group, the police established that four persons had taken part in violent acts, in particular the throwing of stones. Three of the alleged perpetrators could not be identified, while the Veszprém County Prosecutor ’ s Office pressed charges against the fourth person, Mr T.K. He was found guilty as charged on 2 June 2015 by the Ajka District Court and sentenced to ten months ’ imprisonment, suspended for two years. On appeal the Veszprém High Court upheld Mr T.K. ’ s conviction but amended his sentence to one year and three months ’ imprisonment, suspended for three years.", "31. The applicants, together with a third person, also lodged a criminal complaint against unknown perpetrators for breach of discipline in the line of duty, under Article 438 of the Criminal Code. Those proceedings were discontinued on 17 October 2012 by a decision of the Central Investigation Office of the Public Prosecutor, which held that the criminal offence could only be committed by soldiers in military service, but not by police officers." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "32. The Fundamental Law of Hungary provides as follows:", "Article VI", "“(1) Everyone has the right to respect for his or her private and family life, home, communications and good reputation.”", "33. Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”) provides as follows:", "Section 26", "“ (1) In accordance with Article 24 (2) c) of the Fundamental Law, person or organisation affected by a concrete case may submit a constitutional complaint to the Constitutional Court if, due to the application of a legal regulation contrary to the Fundamental Law in their judicial proceedings", "a) their rights enshrined in the Fundamental Law were violated, and", "b) the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available.", "(2) By way of derogation from paragraph (1), Constitutional Court proceedings may also be initiated by exception if", "a) due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights were violated directly, without a judicial decision, and", "b) there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy.", "... ”", "Section 27", "“Any individual or organisation involved in a case may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 (2) d) of the Fundamental Law, if the ruling on the merits or another decision terminating the court proceedings", "a) violates the complainant ’ s right enshrined in the Fundamental Law, and", "b ) the complainant has already exhausted the available legal remedies or no legal remedy is available .”", "Section 55", "“ ...", "(3) If the motion does not meet the requirements on the format and content of such a motion specified in this Act, the Secretary General shall call upon the petitioner to submit a duly completed petition, which the petitioner shall be obliged to do within 30 days. If the petitioner fails to submit a duly completed petition within the time-limit or submits it unduly again, the petition shall not be examined on the merits.", "(4) Besides the case specified in paragraph (3), the petition shall not be adjudicated on the merits if", "a) the petitioner fails to observe the time-limit of the submission of a petition specified by an Act or, despite the call-up to him or her, fails to justify the omission,", "b) the entity was manifestly unauthorised to submit such a petition,", "c) the adjudication of the petition manifestly does not fall within the competence of the Constitutional Court,", "d) the document submitted does not qualify as a petition, or", "e) the petition is manifestly unfounded.", "(5) The decision of the Constitutional Court to reject a petition without examining its merits shall be taken – at the proposal of the Secretary General – by a single judge of the Constitutional Court.”", "34. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows:", "Violence against a member of a national, ethnic, racial or religious group", "Article 174/B", "“(1) Whosoever uses violence against another because that other person belongs to a national, ethnic, racial or religious group, or forces that person by violence or threats to do or not to do something or to tolerate any conduct is guilty of committing an offence punishable by a term of imprisonment of up to three years .”", "Incitement against a group", "Article 269", "“Any person who, before the public at large, incites hatred against:", "a) the Hungarian nation;", "b) any national, ethnic, racial or other group of the population", "is guilty of committing an offence punishable by a term of imprisonment not exceeding three years.”", "35. Constitutional Court judgment no. 75/2008 (V.29) AB of 27 May 2008 reads, in so far as relevant, as follows:", "“ 6. The Constitutional Court has reviewed separately section 14(1) of ARA [ Freedom of Assembly Act ] on the disbanding of assemblies. Under the relevant provision, the police must disband an assembly if the exercise of the right of assembly constitutes a criminal offence or a call to commit such offence, if it violates the rights and freedoms of others, if the participants of the assembly appear to be armed or in possession of weapons, if an assembly under the obligation of prior notification is being held without notification, if an assembly is being held at a time or location, or with a purpose or agenda different from the data in the notification, or if an assembly under the obligation of prior notification is being held despite a decision prohibiting it.", "6.1. As held by the Constitutional Court, the first and the second provisos of the list found under section 14(1) (criminal offence or a call to commit such offence, violation of the rights and freedoms of others, and participants appearing in an armed manner or with weapons) do not restrict freedom of assembly. Article 62 para. (1) of the Constitution acknowledges the right to peaceful assembly, clearly not including the committing of crimes, the violation of rights or armed rallies. In such cases, Act XXXIV of 1994 on the Police (hereinafter: PA) empowers the police to apply coercive measures.", "...", "7 .... It is part of the police ’ s role of applying the law to interpret ARA in concrete cases and to weigh fundamental rights against aspects of public interest. Each assembly held in a public area requires a concrete decision on the issues of interpreting the law. It is impossible to preclude debates about interpreting and applying the norms. The police have to consider whether the assembly falls under the scope of ARA and of the prior notification obligation, whether it is happening in accordance with the provisions of ARA and the notification, and whether it violates or not the fundamental rights and freedoms of others etc. Similarly, the police have to assess whether the disbanding of the event and the application of coercive measures are justified or not. The court is in charge of reviewing the application of the law by the police. The law as applied by the courts is to be followed by the police, too. Unification of the legal practice reduces the danger of legal uncertainty. When adopting the decision, the Constitutional Court took into consideration the risk of abusing the right of assembly. ARA offers some legal remedies against abuse of the application of the law by the authorities, and the Constitutional Court has already assessed them in CCDec. Similarly, there exists another risk to be taken into account: the initiators, organisers and participants of some assemblies may abuse the right of assembly, i.e. the rights acknowledged in the Constitution and ARA.", "However, in the opinion of the Constitutional Court, the right of assembly is a freedom to be enjoyed by all, and it should not be restricted on the grounds that some people might abuse it. ARA and PA offer an adequate framework for acting against illegal assemblies that violate or directly endanger the rights of others. According to section 14(1) of ARA – held to be constitutional – non-peaceful assemblies are to be disbanded. PA provides for the application of coercive measures against those who resist the measures applied by the police, and on the basis of section 59 of PA, if the crowd shows illegal conduct, the police may use tools designed to disperse it. ”", "36. The Supreme Court ’ s Guiding Resolution no. 2215/2010 contains the following relevant passages:", "“Criminal law – by criminalising incitement against a group – provides means for those situations where a racist statement, because of the circumstances in which it was made, poses an immediate and clear threat of violence and of the infringement of others ’ rights. Inciting [hate] speech and violence cannot go unpunished.", "The interpretation, according to which incitement to hatred, based on the above, is the emotional preparation for violence, is clearly established in case-law ... Accordingly ... the judicial practice qualifies as capable of inciting violence only conduct which – even if committed with conditional intent – inevitably involves recognition that the incited hatred might turn into extreme activities (intolerant, prejudicial, injurious conduct and, ultimately, violent actions) .”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "37. The applicants complained that the failure of the domestic authorities adequately to protect them from the demonstrators and properly to investigate the incident amounted to a violation of their rights under Article 8 of the Convention. This provision reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. Compatibility of the complaints with the Convention", "(a) The parties ’ submissions", "38. The Government submitted that Article 8 of the Convention was not applicable to the applicants ’ case and they were not victims of a violation of the Convention right they relied upon. In this connection, they contended that since the applicants had been staying at the scene of the demonstration as visitors, they could not invoke under Article 8 their right to respect for their home. Furthermore, since the applicants had not suffered any physical injury, they could not rely on Article 8 and the State ’ s obligation to protect their physical integrity against attacks by third persons. The Government also maintained that the applicants ’ complaint concerning interference with their psychological integrity was to be considered under Article 3 rather than under Article 8 of the Convention, as in the cases of Karaahmed v. Bulgaria (no. 30587/13, 24 February 2015) and P.F. and E.F. v. the United Kingdom ((dec.), no. 28326/09, 23 November 2010). In this respect the Government also submitted that the impugned treatment had not reached the minimum threshold of severity required for Article 3 to come into play.", "39. The applicants submitted that contrary to the Government ’ s assertion, in order for Article 8 of the Convention to apply, it was irrelevant that they had not suffered actual injuries, since their physical integrity had been exposed to a clear and imminent danger. The first applicant, Mr Király, was a resident of Devecser and although he had not stayed in his own house during the demonstration but had been at his brother ’ s house, his ties to the place and to the persons living there were close enough that it could be considered his “home” for the purposes of Article 8. They further argued that even threats that had not actually materialised into concrete acts or physical violence could affect a person ’ s psychological integrity as protected under Article 8. This was particularly the case if the threat of violence was made with reference to a person ’ s Roma origin. In their view, the threats uttered against the Roma community in an openly racist rally and accompanied by acts of violence had caused such a degree of fear and distress, as well as a feeling of menace and inferiority, that they had affected their psychological integrity, rendering Article 8 applicable in the present case. This was particularly the case, since the applicants had been subjected to intentional harassment as members of a captive audience, unable to avoid the message conveyed by the speakers and demonstrators.", "40. The applicants also referred to the general context of the demonstration and the widespread discrimination suffered by the Roma minority, including repeated instances of hate speech and a series of hate-motivated killings. Lastly, they relied on the judgment of Bensaid v. the United Kingdom to point out that the Court ’ s case-law did not exclude that treatment which did not reach the severity required to bring it within the ambit of Article 3 might nonetheless breach Article 8 in its private-life aspect where there were sufficiently adverse effects on physical and moral integrity ( Bensaid v. the United Kingdom, no. 44599/98, § 46, ECHR 2001 ‑ I).", "(b) The Court ’ s assessment", "41. The notion of “private life” within the meaning of Article 8 of the Convention is a broad term that is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of a person ’ s physical and social identity. The Court has accepted in the past that an individual ’ s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008 -V, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group ’ s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group (see Perinçek v. Switzerland [GC], no. 27510/08, § 200, ECHR 2015 (extracts). On this basis, the Court found in Aksu that proceedings in which a person of Roma origin who had felt offended by passages in a book and dictionary entries about Roma in Turkey had sought redress had engaged Article 8 (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 60, ECHR 2012).", "42. The Court ’ s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C and R.B. v. Hungary, no. 64602/12, § 79, 12 April 2016 ).", "43. Turning to the circumstances of the present case, the Court observes that the threats uttered against the Roma minority, which constitute the basis of the applicants ’ complaint under Article 8 of the Convention, did not actually materialise into concrete acts of physical violence against the applicants themselves. Nonetheless, it considers that the fact that certain acts of violence were carried out by at least some of the demonstrators, and that following the speeches the demonstrators marched down Vásárhelyi Street in the Roma neighbourhood (see paragraph 11 above) where the police requested the inhabitants not to leave their houses and the demonstrators shouted that they would come back later, any threats made during the demonstration would have aroused in the applicants a well-founded fear of violence and humiliation. Furthermore, the demonstration of an openly anti-Roma stance took place in a municipality where there had already been tension between Roma and non-Roma inhabitants (see paragraph 6 above). Lastly, the threats were directed against the inhabitants of Devecser on account of their belonging to an ethnic minority, necessarily affecting the feelings of self-worth and self-confidence of members of the group, including the applicants. More generally, as the Court has held before in the context of Article 11, the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of an ethnic minority, especially when they are in their homes and as such constitute a captive audience (see Vona v. Hungary, no. 35943/10, § 66, ECHR 2013). These elements, in the Court ’ s estimation, would be enough to affect the applicants ’ psychological integrity and ethnic identity, within the meaning of Article 8 of the Convention.", "44. The application is therefore not incompatible ratione materiae with the provisions of the Convention. The Court accordingly dismisses the Government ’ s first objection to the admissibility of the complaint.", "2. Alleged failure to exhaust domestic remedies", "(a) The parties ’ submissions", "45. The Government contended that the applicants had not exhausted available domestic remedies. They could have brought a constitutional complaint seeking the quashing of the judgment of the Kúria of 23 September 2015. In such proceedings they could have argued that the Kúria ’ s judgment had infringed their rights enshrined in the Fundamental Law, either because the Kúria had applied a law which was unconstitutional or because it had interpreted or applied a law in an unconstitutional manner.", "46. The applicants contested the Government ’ s objection. They emphasised that a Government claiming non-exhaustion bore the burden of proving to the Court that an effective remedy had been available in theory and in practice at the relevant time. They argued that the Government had failed to demonstrate that a constitutional complaint would have been an effective remedy in their situation. In any case, in their view, the constitutional complaint could only have resulted in “several remittals” to the lower-level courts and finally to the police. The proceedings before the police, however, did not constitute an effective remedy on account of their lengthy nature and the general political context. They further submitted that the police complaints procedure whereby a complaint passed to a higher - level authority within the police could not lead to an independent examination of the case, since there was a hierarchical and institutional connection between the lower-level police instances responsible for the alleged omissions and those carrying out the inquiries into the events. In this context, they also referred to the Court ’ s judgment in Szerdahelyi v. Hungary (no. 30385/07, § 31, 17 January 2012), where the Court had stated that it had not been “convinced” that the police complaints procedure could be considered an effective remedy.", "(b) The Court ’ s assessment", "47. The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be used are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts) ).", "48. In the present case, the applicants ’ complaint concerns the domestic authorities ’ failure to fulfill their positive obligation to protect their right to private life. The Government have not referred to any decisions or judgments of the Constitutional Court which, like this Court ’ s case-law, inferred from the right to private life ( protected by the Fundamental Law under Article VI ( 1 ) ) the protection of an individual ’ s ethnic identity (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008) and the positive obligation to adopt measures designed to secure respect for private life even in the sphere of individuals ’ relationships with each other (see Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).", "49. The Court notes that under sections 27 and 55 of the Constitutional Court Act, the absence of a constitutional right renders a complaint inadmissible for examination on the merits. The Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life (see, mutatis mutandis, Apostol v. Georgia, no. 40765/02, § 39, ECHR 2006 ‑ XIV ). It follows that the application cannot be dismissed for failure to exhaust domestic remedies.", "3. Conclusion as to admissibility", "50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a ) The applicants", "51. The applicants emphasised that the police had been clearly aware that the demonstration constituted a danger to the Roma minority, following previous experience of the behaviour of extreme right-wing groups during rallies and the fact that the demonstration had explicitly been planned in the Roma neighbourhood. This had clearly been indicated by the extensive preparations carried out by the police prior to the events. Furthermore, there had been reported incidents of violence and aggressive behaviour throughout the demonstrations. Notwithstanding, the police had failed to discharge their obligations under Article 8 to protect the applicants from violent attacks by individuals.", "52. First, the demonstration fell to be regulated by the authorities. In this regard, the applicants emphasised that the legislative framework provided insufficient protection against racist rallies, in that there were no legal grounds for the police to ban a demonstration, even if it had been knowingly targeting the Roma minority its participants were prone to violence. The police could have used their powers to divert the demonstration to another place or to deny the demonstrators access to the Roma neighbourhood. Moreover, they should have intervened by calling the demonstrators to cease their unlawful conduct.", "53. Secondly, the police had not even considered using their powers under section 14 of the Freedom of Assembly Act to disperse the demonstration on the grounds that it constituted a criminal offence, its character was no longer peaceful, it infringed the rights and freedoms of others, and its participants were armed. In their view, the police had failed to understand that not only the sporadic acts of violence, but also any threatening behaviour constituted a criminal offence, in particular violence against members of a group. They also submitted that none of the authorities had properly assessed that an anti-Roma demonstration of that kind, by its very nature, infringed the rights and freedoms of others. Furthermore, the applicants found it contradictory that the domestic authorities had insisted on the generally peaceful nature of the demonstration, whereas the police had admitted having decided not to take individual measures against certain demonstrators for fear of violence. The applicants also emphasised that although a small number of the demonstrators had engaged in acts of violence, they had been largely supported by the crowd.", "As regards the domestic authorities ’ obligation to balance the applicants ’ rights under Article 8 of Convention with that of the demonstrators, the applicants maintained that the perpetrators of vehement verbal attacks on ethnic minorities, aimed at inciting hatred, could not rely on the protection of their Convention rights.", "54. Thirdly, the police had failed to take the necessary measures to single out and identify individual perpetrators in order to restore the peaceful nature of the demonstration but also for the purposes of subsequent criminal investigations.", "55. Lastly, the applicants submitted that the investigations into the incident had been defective. Despite several of the participants being involved in intimidating the Roma community out of racial hatred by chanting anti-Roma slogans, conduct punishable under Article 174/B of the Criminal Code, the investigating authorities had limited the scope of their enquiries to those who had committed acts of violence. Furthermore, in the applicants ’ submission, the domestic authorities had erred in discontinuing the investigation against certain speakers on account of hate speech, since their utterances inciting people to start an ethnic war could clearly have triggered violence among the audience, given the threatening nature of the event.", "(b) The Government", "56. The Government submitted that even if the Court found Article 8 applicable in this case, the domestic authorities had complied with their positive obligations under that Article by properly policing the demonstration. Contrary to the applicants ’ allegations, this was not a case in which the police had stood by and done nothing: they had taken a wide range of preventive measures prior to the demonstration, including vehicle checks, identity checks and consultations with the representatives of the Roma minority. They had also considered that the most effective method to secure the demonstration had been for the force to act as a team and not to take measures against certain individuals. This operational decision fell within the ambit of legitimate police discretion, as confirmed by the domestic courts ’ decisions.", "57. The Government also submitted that the case concerned on the one hand, the right of a political group to freedom of expression and assembly, guaranteed by Articles 10 and 11 of the Convention and, on the other, the right of the local residents to their private life, guaranteed by Article 8. The alleged failure of the police to ban or disperse the demonstration had corresponded to their obligation to strike a fair balance between those two competing interests. In the Government ’ s opinion, the interference with the applicants ’ right to private life had been negligible, since, contrary to their submissions, they had not been members of a captive audience, but had been visiting Devecser to confront the demonstrators. On the other hand, the domestic authorities had a very narrow margin of discretion in restricting the exercise of the freedoms protected under Articles 10 and 11.", "58. The Government further emphasised that the demonstration, a one-off event, had lasted only two hours and the sporadic acts of violence only a couple of minutes. Thus the event could not be characterised as violent, justifying possible dispersal.", "59. Finally, the criminal investigation undertaken after the demonstration had complied with the State ’ s positive obligations under Article 8. In particular, as regards the punishment of the alleged hate speech, the Government submitted that domestic authorities, having a better knowledge of a particular society, were better placed to decide where the limits of free speech and hate speech should be set, and an open debate would allow for mitigating racist tensions within the society.", "2. The Court ’ s assessment", "(a) General principles", "60. The Court reiterates that while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations between individuals (see Söderman, cited above, § 78). To that end, States are required to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009, and A v. Croatia, no. 55164/08, § 60, 14 October 2010).", "61. The State ’ s positive obligation under Article 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports 1998 ‑ VIII, and C.A.S. and C.S. v. Romania, no. 26692/05, § 72, 20 March 2012 ) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, A, B and C v. Latvia, no. 30808/11, § 149, 31 March 2016 ), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007 ). More generally, however, in respect of less serious acts between individuals which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection ( see Söderman, cited above, § 85 ).", "62. The Court also reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods for protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Hungary, in handling the applicants ’ case, has been in breach of its positive obligation under Article 8 of the Convention (see mutatis mutandis, Sandra Janković, cited above, § 46).", "(b) Application of the above principles in the instant case", "63. The Court notes that the applicants ’ complaints concern the alleged inadequacy of the Hungarian authorities ’ response to the intimidating anti-Roma demonstration that had taken place in their neighbourhood. In particular, they pointed out the failure of the police to take preventive measures and react promptly, either by dispersing the demonstration or by applying measures against certain individuals, as well as the shortcomings in the subsequent criminal prosecutions.", "64. As regards the decision of the police, subsequently reviewed by the Administrative and Labour Court and the Kúria, not to disperse the demonstration, this Court has previously accepted that in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration in order to protect an individual ’ s private life under Article 8 (see R.B. v. Hungary, cited above, § 99). Examining the domestic approach to dispersal of demonstrations, it appears that the police have a similar obligation to disband an assembly if the exercise of the right of assembly constitutes a criminal offence or a call to commit such an offence, or if it violates the rights and freedoms of others, as demonstrated by the judgment of the Constitutional Court (see paragraph 3 5 above).", "65. When assessing whether such an obligation had arisen in the present case, the domestic courts gave consideration to the applicants ’ arguments concerning the unlawful nature of the demonstration. They nonetheless concluded that in the light of previous case-law, there had been no legal basis to disperse the demonstration, since it had maintained its generally peaceful nature, despite some unruly incidents. The Kúria also attached weight to respect for the principle of proportionality when having recourse to force, and the risk of violence to the Roma community the measure could have had implied.", "66. The Court notes in this respect that in cases where the applicants were able to raise their arguments before the domestic courts, which gave them careful consideration, it is not for this Court to substitute its own assessment for that of the national courts; indeed, it cannot question that assessment, unless it is manifestly unreasonable or there is clear evidence of arbitrariness (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 89, ECHR 2007 ‑ I). In the present circumstances, the Court is satisfied that there was no appearance of arbitrariness or a manifest lack of judgment on the part of the authorities as regards the decision of the police not to disperse the demonstration.", "67. In a similar vein, the absence of individual measures ( for example, identity checks and questioning) was fully considered, first by the investigating authorities and, secondly, by the domestic courts (see paragraphs 25-26 above). In particular, the national courts engaged in an assessment of whether the action taken by the police had been professionally justified and whether they had been sufficient to protect the applicants and the Roma community in general. The courts emphasised that the police had taken a number of preparative steps, had changed the classification of the demonstration and had placed themselves between the protesters and the local residents.", "68. In this regard, the Court reiterates its previous finding that the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 41, 23 November 2010).", "69. Consequently, the Court does not consider it appropriate to call into question the findings of the domestic courts concerning the adequacy of the police reaction to the demonstration.", "70. Nonetheless, the fact remains that the applicants were unable to avert a demonstration advocating racially motivated policies and intimidating them on account of their belonging to an ethnic group.", "71. As regards the ensuing criminal proceedings against the speakers and the participants of the demonstration, the Court notes that the criminal investigation into the crime of incitement against a group was discontinued because the domestic authorities found that the speakers ’ statements during the march were not covered by the said offence (see paragraph 29 above). It also notes that an investigation was opened into the criminal offence of violence against a member of a group, in the course of which four demonstrators were found to have thrown stones at a house inhabited by a Roma family. The ensuing criminal proceedings led to the conviction of one of the demonstrators, the other three remaining unidentifiable (see paragraph 30 above).", "72. The Court has already dealt with cases of harassment motivated by racism which involved no physical violence, but rather verbal assault and physical threats. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicant ’ s rights had been defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 8 of the Convention (see R.B. v. Hungary, cited above, §§ 84-85 ).", "73. In considering the present case, the Court will draw inspiration from the principles formulated in its previous case-law under Article 10 of the Convention concerning statements alleged to have stirred up violence, hatred and intolerance. The key factors in the Court ’ s assessment were whether the statements had been made against a tense political or social background (see Zana v. Turkey, 25 November 1997, §§ 57-60, Reports 1997-VII; Sürek v. Turkey (no. 1) [GC], no. 26682/95, §§ 52 and 62, ECHR 1999-IV; Soulas and Others v. France, no. 15948/03, § 33, 10 July 2008, and Féret v. Belgium, no. 15615/07, §§ 66 and 76, 16 July 2009 ), whether the statements, fairly construed and seen in their immediate or wider context, could have been seen as a direct or indirect call for violence or as a justification for violence, hatred or intolerance (see, among other authorities, Özgür Gündem v. Turkey, no. 23144/93, § 64, ECHR 2000-III and Fáber v. Hungary, no. 40721/08, §§ 52 and 56-58), and the manner in which the statements had been made, and their capacity – direct or indirect – to lead to harmful consequences (see Karataş v. Turkey ([GC], no. 23168/94, §§ 51-52, ECHR 1999 ‑ IV).", "74. In all of those cases, it was the interplay between the various factors, rather than any one of them taken in isolation, that determined the outcome of the case. The Court ’ s approach to that type of case can thus be described as highly context-specific (see Perinçek, cited above, § 208).", "75. Aware of its subsidiary role, the Court is mindful that it is prevented from substituting its own assessment of the facts for that of the national authorities. Nonetheless, based on the above, it cannot but consider that the domestic authorities should have paid particular attention to the specific context in which the impugned statements were uttered.", "76. In particular, the rally in general quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, with the intention of intimidating this vulnerable group. Besides the adherents of a right-wing political party, it was attended by members of nine far-right groups, known for their militant behaviour and acting as a paramilitary group, dressed in uniforms, marching in formation and obeying commands. The speakers called on participants to “fight back” and “sweep out the rubbish from the country”. Their statements referred to an ongoing ethnic conflict and the use of all necessary means of self-protection. It was following the speeches that the demonstrators marched down Vásárhelyi Street between the houses inhabited by the Roma, uttered obscenities against the inhabitants and engaged in acts of violence. Throughout the event, the police placed themselves between the demonstrators and the Roma residents to ensure the protection of the latter, while the participants themselves threatened the Roma that they would come back once the police had gone and demanded the police not to protect the Roma minority.", "77. Moreover, the event was organised in a period when marches involving large groups and targeting the Roma minority had taken place on a scale that could qualify as “large-scale, coordinated intimidation” (see Vona, cited above, § 69).", "78. For the Court, these were relevant factors that should have been taken into consideration when assessing the nature of the speeches. This is all the more so that according to the domestic courts ’ case-law, racist statements together with the context in which they were expressed could constitute a clear and imminent risk of violence and violation of the rights of others (see paragraph 3 6 above). However, it appears that the investigating authorities paid no heed to those elements when concluding that the statements had been hateful and abusive but that they had not incited violence. Thus, the domestic authorities inexplicably narrowed down the scope of their investigations.", "79. As regards the criminal investigations into the offence of violence against a member of a group, the Court recalls that for an “investigation to be regarded as ‘ effective ’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means” (see, albeit in the context of Article 3, Identoba and Others v. Georgia, no. 73235/12, § 66, 12 May 2015). In the present case, these proceedings lasted almost three years; and their scope was statutorily bound to be limited to the actual acts of violence. The authorities eventually identified one incident liable to prosecution; the perpetrator was prosecuted for, and charged with, violence against a member of a group and convicted of that offence. Although the police had had sufficient time to prepare themselves for the event and should have been able to interrogate numerous persons after the incident (see paragraph 17 above), only five demonstrators were questioned; and three of the alleged perpetrators could not be identified. For the lack of any other elements possibly falling within the hypothesis of the offence in question, the police were not in a position to extend the scope of the prosecution to any other protagonists. In these circumstances, the Court finds that this course of action in itself was not “capable of leading to the establishment of the facts of the case” and did not constitute a sufficient response to the true and complex nature of the situation complained of.", "80. The cumulative effect of those shortcomings in the investigations, especially the lack of a comprehensive law enforcement approach into the events, was that an openly racist demonstration, with sporadic acts of violence (see paragraphs 11-12 and 25-26 above) remained virtually without legal consequences and the applicants were not provided with the required protection of their right to psychological integrity. They could not benefit of the implementation of a legal framework affording effective protection against an openly anti-Roma demonstration, the aim of which was no less than the organised intimidation of the Roma community, including the applicants, by means of a paramilitary parade, verbal threats and speeches advocating a policy of racial segregation. The Court is concerned that the general public might have perceived such practice as legitimisation and/or tolerance of such events by the State.", "81. In the light of these findings the Court does not consider it necessary to address separately the applicants ’ argument that the demonstration should have been banned.", "82. Having regard to the above -mentioned considerations, the Court is not satisfied that the domestic laws and practice ensured protection of the applicants ’ right to respect for their private life. Notwithstanding the respondent State ’ s margin of appreciation in this field, the Court concludes that the State did not comply with its positive obligations under Article 8 of the Convention.", "There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "83. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "84. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage.", "85. The Government contested those claims.", "86. The Court considers that the applicants must have suffered non-pecuniary damage on account of the violations found, and awards them, on an equitable basis, EUR 7,500 each in respect of non-pecuniary damage.", "B. Costs and expenses", "87. Mr Király also claimed EUR 450 in respect of the court fees and legal costs he had had to pay in the domestic proceedings. He also claimed EUR 2,755 plus value-added tax (VAT) for the costs and expenses incurred before the Court. That amount corresponds to EUR 2,560 in legal costs charged by his lawyer for 23.5 hours of legal work at an hourly rate of EUR 102 plus VAT, and EUR 195 in clerical costs. In total Mr Király claimed EUR 3,205 plus VAT.", "88. Mr Dömötör claimed EUR 480 in respect of the court fees and legal costs he had had to pay in the domestic proceedings. He also claimed EUR 2,755 plus VAT for the costs and expenses incurred before the Court. That amount corresponds to EUR 2,560 in legal costs charged by his lawyer for 23.5 hours of legal work at an hourly rate of EUR 102, plus VAT, and EUR 195 in clerical costs. In total Mr Dömötör claimed EUR 3,235 plus VAT.", "89. The Government contested those claims.", "90. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to award the sums claimed in their entirety, that is EUR 3,205 plus VAT to Mr Király and EUR 3,235 plus VAT to Mr Dömötör.", "C. Default interest", "91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "A. The background", "7. The applicant is a British citizen and a Gypsy. She lives with her three children in caravans parked on land owned by her off Meadow Drove, Willingham, South Cambridgeshire, England. She is married but separated from her husband in 1991.", "8. As far back as can be traced, the applicant's family have been Gypsies based in South Cambridgeshire. She has lived in caravans all her life and as a child travelled with her parents in this area. She continued this itinerant life until shortly before the birth of her third child in 1988.", "9. In 1988 the applicant's sister and brother-in-law acquired a one-acre (approximately 4000 square metres) site off Meadow Drove, Willingham, and were granted personal, temporary planning permission for one living unit, comprising two caravans.", "10. At her sister's invitation she moved on to this site in November 1988 when she was expecting her third child, because she had found it hard being constantly on the move with young children. During this period of settled living the two eldest children were able to attend a local school, where they integrated well.", "11. On an unspecified date in 1988, the applicant acquired part of her sister's land (0.16 hectare) to the rear of the site, furthest away from Meadow Drove. She moved her three caravans on to this plot.", "12. Her land is now part of a group of six adjacent sites which are occupied by Gypsies. One plot has received permanent planning permission for the residential use of three caravans. The site occupied by the applicant's sister enjoyed temporary permission until 4 August 1995. The remaining three sites have been occupied without planning permission and the occupants have been subject to enforcement proceedings (see paragraph 32 below). The occupants of two of those sites have also introduced applications before the European Commission of Human Rights.", "13. The applicant has stated that she intends to resume her travelling life sometime in the future, and to pass on this tradition to her children. In 1993 she travelled with her sister to Saint Neots in Cambridgeshire because her father-in-law was dying. She was able to park on waste ground for two weeks, but had to move on shortly after the funeral.", "B. The application for planning permission", "14. On 4 December 1989 the applicant applied retrospectively to South Cambridgeshire District Council for planning permission for the three caravans on her site.", "She was refused on 8 March 1990 on the grounds that (1) adequate provision had been made for Gypsy caravans elsewhere in the South Cambridgeshire area, which had in the Council's opinion reached \"saturation point\" for Gypsy accommodation; (2) the planned use of the land would detract from the rural and open quality of the landscape, contrary to the aim of the local development plan which was to protect the countryside from all but essential development (see paragraph 30 below); and (3) Meadow Drove was an agricultural drove road which was too narrow to allow two vehicles to pass in safety.", "15. On 9 April 1990 the Council issued an enforcement notice requiring the caravans to be removed within a month.", "The applicant appealed against the enforcement notice to the Secretary of State for the Environment (see paragraph 33 below).", "16. An inspector was appointed by the Secretary of State to report on the appeal (see paragraph 33 below). The inspector visited the site and considered written representations submitted by the applicant and the District Council.", "In her report issued on 14 February 1991 the inspector observed that the local authority had granted planning permission to two caravan sites between the applicant's site and Meadow Drove (the applicant's sister's site and another), and to an agricultural workshop on land to the east of the site (which was occupied at the time of the inspection by an unauthorised road haulage business). The applicant's caravans were screened from the road because of these authorised and unauthorised developments. However, the inspector wrote that:", "\"... whether seen or not, the development subject of these notices [i.e. the applicant's caravan site] extends development further from the road than that permitted. It thus intrudes into the open countryside, contrary to the aim of the Structure Plan [see paragraph 30 below] to protect the countryside from all but essential development.\" The inspector also found that the access road to the site was too narrow for two vehicles to pass, and thus that the use of the site for caravans would not be in the interests of road safety. She considered the applicant's special status as a Gypsy and observed that in January 1990 there were over sixty Gypsy families on unauthorised sites in the district of South Cambridgeshire. She continued: \"It is therefore clear in my mind that a need exists for more authorised spaces. ... Nevertheless, I consider it important to keep concentrations of sites for gypsies small, because in this way they are more readily accepted by the local community. ... [T]he concentration of gypsy sites in Willingham has reached the desirable maximum and I do not consider that the overall need for sites should, in this case, outweigh the planning objections.\"", "She concluded by recommending that the appeal be dismissed.", "17. The Secretary of State dismissed the appeal on 16 April 1991. The reasons given included the following:", "\"The decisive issue in regard to the planning merits of your appeals is considered to be whether the undisputed need for additional gypsies' caravan site provision, in the administrative areas of the District Council, and of the County Council, is so pressing that it should be permitted to override the objections on planning policy and highway safety grounds to the retention of the use of the appeal site as a residential caravan site for gypsies. On this approach, the view is taken that the objections to the continued use of the appeal site as a residential gypsy caravan site are so strong, on planning policy and highway safety grounds, that a grant of planning permission could not be justified, either on a temporary or personal basis. In reaching this conclusion, full consideration has been given to policy advice in the Department's Circular 28/77, giving guidance to Councils on the need to provide adequate accommodation in the form of caravan sites, for gypsies residing in or resorting to their area. However, on the available evidence, the view is taken, in agreement with the officer's appraisal, that the concentration of gypsy caravan sites around the Willingham area has reached the desirable maximum, and the overall need for additional sites should not outweigh the planning and highway objections arising from the continued use of this particular site.\"", "The applicant did not appeal to the High Court because she was advised by counsel that no grounds arose in her case (see paragraph 34 below).", "C. Criminal proceedings against the applicant", "18. The applicant has been prosecuted for failure to comply with the enforcement notice of May 1990. On 7 January 1992 she was fined £50 and required to pay £10 costs. She has again been prosecuted on two occasions after the introduction of her application to the Commission on 7 February 1992. On 12 January 1994 the magistrates granted her an absolute discharge but ordered her to pay the prosecution costs. Finally, on 16 November 1994 she was fined £75 and ordered to pay £75 costs.", "D. Designation", "19. By a letter dated 20 May 1993, the Department of the Environment informed the District Council that the Secretary of State had decided to designate the area of South Cambridgeshire under section 12 of the Caravan Sites Act 1968 (see paragraph 37 below). It was noted that a small number of Gypsies still remained on unauthorised sites but that, in light of the provision made for sites which was greater than in any other district, it was considered \"not expedient for adequate accommodation to be provided for Gypsies residing in or resorting to South Cambridgeshire district\". The order designating the district of South Cambridgeshire came into force on 13 August 1993, but no longer applies because of the provisions of the Criminal Justice and Public Order Act 1994 (see paragraph 41 below).", "E. Subsequent developments", "20. On 19 September 1994 the applicant again applied for permission to station her caravans on her site, in the light of a change in the law (see paragraphs 40-42 below).", "21. She was refused on 14 November 1994 on the grounds that (1) local planning policy dictated that development in open countryside should be restricted and no evidence to justify a departure from this policy had been advanced, and (2) adequate provision for Gypsies had been made along Meadow Drove (see paragraph 24 below).", "22. The applicant (together with others occupying the neighbouring sites) appealed against this decision to the Secretary of State. A report was prepared by an inspector in May 1995. The inspector considered, first, whether the continued use of the land as a Gypsy caravan site would detract from the rural nature of the area, and, secondly, if so, whether there were any special circumstances sufficient to outweigh this objection. She found that the road safety objection, which had been one of the grounds of refusal in April 1991 (see paragraph 16 above), no longer applied. With regard to the first question, the inspector found that the applicant had a mobile home, three touring caravans and three sheds on her site. These were hidden from the road by the caravans on the sites in front and by an agricultural engineering business, the same depth as the applicant's site to the east. They were visible from other vantage points but could be adequately screened by planting hedges. However, she concluded that:", "\"... the continued use of the rear plots considerably extends the depth of development south of the road. This intensification of use in itself inevitably detracts from the rural appearance and generally open character of the area, contrary to the objectives of national and local countryside policy. I must therefore conclude that the continued occupation of the land as gypsy caravan sites is harmful to the character and appearance of the countryside.\"", "With regard to the special circumstances of the case, in particular the applicant's Gypsy status, the inspector made the following observations. She described the applicant's site as \"clean, spacious and well-ordered\". By contrast, the council-run site on Meadow Drove (see paragraphs 24-26 below) was \"isolated, exposed and somewhat uncared for\". Nevertheless, it was", "\"a relevant consideration that there is available alternative accommodation close by, which would enable the appellants to stay in the Willingham area and their children to continue at the local schools\".", "On the other hand,", "\"little weight [could] be given to the private sites at Cottenham. No substantive evidence was given by either the Council or the appellants as to whether plots were actually available there or their price\".", "The inspector considered the impact of Circular 1/94 (see paragraph 43 below) on the applicant's case, but concluded that, although it placed greater emphasis on the provision of sites by Gypsies themselves, it was government policy that proposals for Gypsy sites should continue to be determined solely in relation to land-use factors. She concluded that there had been no material changes since the last appeal was heard and the present appeal should therefore be dismissed.", "23. Accepting the inspector's conclusions and recommendations, the Secretary of State dismissed the appeal on 12 December 1995. The applicant has filed an appeal to the High Court, which is now pending.", "F. Authorised Gypsy sites in the district of South Cambridgeshire", "24. In November 1992 the County Council opened an official Gypsy caravan site in Meadow Drove, about 700 metres away from the applicant's land. The site consists of fifteen pitches, each comprising a fenced, partially grassed area with hard standing for caravans and its own brick building containing a kitchen, shower and toilet. Each pitch is designed to accommodate one permanent caravan, one touring caravan, one lorry and one car. They are joined by a central road and the site stands in open countryside.", "25. Between November 1992 (when the site opened) and August 1995, twenty-eight vacancies have arisen there. The District Council contacted the applicant by letters dated 17 February 1992 and 20 January 1994, informing her of the possible availability of pitches on this site and advising her to apply for one to the County Council. The applicant has never taken any action in this regard.", "26. Since the site opened, the following incidents have reportedly taken place there: (1) an unsubstantiated allegation in May 1993 that one of the residents was in possession of a firearm; (2) a fight in December 1993 during which a resident on the site was punched in the eye by another; (3) in 1994 a car was brought on to the site and set alight; (4) in the same year there was an incident of domestic violence; (5) also in 1994, the warden's office on the site was burgled and damaged when temporarily vacant; (6) in 1995 a site resident was convicted of conduct likely to cause a breach of the peace after exchanging words and threatening gestures with a District Council refuse collector on the site; (7) in March 1995 four pitches were damaged by vandalism and/or fire.", "27. There are authorised privately run sites at Smithy Fen, Cottenham, about 7 kilometres from Willingham. In May 1995 the cost of purchasing a pitch on one of them reportedly varied between £7,000 and £40,000." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. General planning law", "28. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (\"the 1990 Act\") consolidated pre-existing planning law.", "29. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).", "30. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The local development plan in South Cambridgeshire restricts development in the countryside to that essential to the efficient operation of particular rural uses, such as horticulture, agriculture and forestry.", "31. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, para. 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).", "32. If a development is carried out without the grant of the required planning permission, the local authority may issue an \"enforcement notice\", if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).", "33. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.", "34. Again there is a further right of appeal \"on a point of law\" to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.", "B. Gypsy caravan sites provision", "1. The Caravan Sites Act 1968", "35. Part II of the Caravan Sites Act 1968 (\"the 1968 Act\") was intended to combat the problems caused by the reduction in the number of lawful stopping places available to Gypsies as a result of planning and other legislation and social changes in the post-war years. Section 16 defined \"gipsies\" as: \"persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such\".", "36. Section 6 of the 1968 Act provided that it should be the duty of local authorities: \"to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area\". The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).", "37. Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could \"designate\" that district or county (section 12 of the 1968 Act). The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10). In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of section 10.", "2. The Cripps Report", "38. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, \"the Cripps Report\"). Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that: \"Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.\" The report made numerous recommendations for improving this situation.", "3. Circular 28/77", "39. Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on \"statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management\". It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. Among other advice, it encouraged local authorities to enable self-help by Gypsies through the adoption of a \"sympathetic and flexible approach to [Gypsies'] applications for planning permission and site licences\". Making express reference to cases where Gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.", "4. Circular 57/78", "40. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that \"it would be to everyone's advantage if as many gypsies as possible were enabled to find their own accommodation\", and thus advised local authorities that \"the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions\". In addition, approximately £100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating Gypsy sites.", "5. The Criminal Justice and Public Order Act 1994", "41. Section 80 of the Criminal Justice and Public Order Act 1994 (\"the 1994 Act\"), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act (see paragraphs 35-37 above) and the grant scheme referred to in paragraph 40 above.", "42. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as \"a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent\". Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).", "6. Circular 1/94", "43. New guidance on Gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see paragraph 40 above). Councils were told that:", "\"In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.\" However: \"As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...\"", "PROCEEDINGS BEFORE THE COMMISSION", "44. In her application (no. 20348/92) of 7 February 1992 to the Commission, Mrs Buckley alleged that she was prevented from living with her family in caravans on her own land and from following the traditional lifestyle of a Gypsy, contrary to Article 8 of the Convention (art. 8). 45. On 3 March 1994 the Commission declared the application admissible. In its report of 11 January 1995 (Article 31) (art. 31) the Commission expressed the opinion that there had been a violation of Article 8 (art. 8) (seven votes to five). The full text of the Commission's opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "46. In their memorial the Government requested the Court \"to decide and declare that the facts [disclosed] no breach of the applicant's rights under Article 8 of the Convention (art. 8)\". The applicant requested the Court \"to decide and declare that the facts [disclosed] a breach of [her] rights under Article 8 (art. 8) and/or Article 8 in conjunction with Article 14 (art. 14+8)\" and to award her just satisfaction.", "AS TO THE LAW", "I. SCOPE OF THE CASE BEFORE THE COURT", "A. Applicant's complaint under Article 14 of the Convention taken together with Article 8 (art. 14+8)", "47. In her application to the Commission, the applicant claimed that the designation system under the Caravan Sites Act 1968 (see paragraph 37 above) and the criminalisation of \"unauthorised camping\" under the Criminal Justice and Public Order Act 1994 (see paragraph 42 above) discriminated against Gypsies by preventing them from pursuing their traditional lifestyle. In its report the Commission did not express an opinion on this point. The Commission's Delegate, speaking at the Court's hearing, stated that the Commission had come to the conclusion that it could not examine the complaint as such because the applicant could not show that she had been directly and immediately affected by either of the Acts in question.", "48. Although the Commission considered the case only under Article 8 of the Convention (art. 8), this additional complaint is encompassed in the Commission's decision declaring the application admissible. The Court accordingly has jurisdiction to examine it (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, para. 56).", "B. Applicant's \"formal objections\"", "49. At the Court's hearing on 19 February 1996, the Government mentioned, in support of their contention that the applicant had had available to her sufficient procedural safeguards, that the applicant did not appeal to the High Court against the Secretary of State's decision of 16 April 1991 (see paragraph 17 above). In a letter received at the registry on 21 February 1996, the applicant's solicitor sought to place on record \"formal objections\" against the Government's reliance on that fact. The Government had based no preliminary objection on it at any time prior to the Court's hearing. Accordingly, any such objection should be dismissed as out of time (Rule 48 para. 1 of Rules of Court A) and barred by estoppel.", "50. The Court observes that the applicant decided not to bring an appeal before the competent court after being advised by counsel that such an appeal was bound to fail (see paragraph 17 above). However, as indicated above, the Government have not framed their comment as a preliminary objection. It is an argument going to the merits, to be considered by the Court at the appropriate juncture (see paragraph 79 below).", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)", "51. The applicant submitted that since she was prevented from living in caravans on her own land with her family and from following a travelling life there had been, and continued to be, a violation of her right to respect for her private and family life and her home. She relied on Article 8 of the Convention (art. 8), which provides as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The Government contested this argument but the Commission accepted it.", "A. Whether a right protected by Article 8 (art. 8) is in issue", "52. The Government disputed that any of the applicant's rights under Article 8 (art. 8) was in issue. In its contention, only a \"home\" legally established could attract the protection of that provision (art. 8).", "53. In the submission of the applicant and the Commission there was nothing in the wording of Article 8 (art. 8) or in the case-law of the Court or Commission to suggest that the concept of \"home\" was limited to residences which had been lawfully established. They considered, in addition, that since the traditional Gypsy lifestyle involved living in caravans and travelling, the applicant's \"private life\" and \"family life\" were also concerned.", "54. The Court, in its Gillow v. the United Kingdom judgment of 24 November 1986 (Series A no. 109), noted that the applicants had established the property in question as their home, had retained ownership of it intending to return there, had lived in it with a view to taking up permanent residence, had relinquished their other home and had not established any other in the United Kingdom. That property was therefore to be considered their \"home\" for the purposes of Article 8 (art. 8) (loc. cit., p. 19, para. 46). Although in the Gillow case the applicant's home had initially been established legally, similar considerations apply in the present case. The Court is satisfied that the applicant bought the land to establish her residence there. She has lived there almost continuously since 1988 - save for an absence of two weeks, for family reasons, in 1993 (see paragraphs 11 and 13 above) - and it has not been suggested that she has established, or intends to establish, another residence elsewhere. The case therefore concerns the applicant's right to respect for her \"home\".", "55. In view of the above conclusion it is unnecessary for the Court to decide whether the case also concerns the applicant's right to respect for her \"private life\" and \"family life\".", "B. Whether there was an \"interference by a public authority\"", "56. The applicant asked the Court to review the designation regime under the Caravan Sites Act 1968 (see paragraphs 35-37 above), which in her contention made it extremely difficult for Gypsies to follow their traditional lifestyle, and the criminalisation of \"unauthorised campers\" by the Criminal Justice and Public Order Act 1994 (see paragraphs 41-42 above), which, she submitted, was even more restrictive.", "57. The Commission considered that it was empowered only to examine the applicant's complaints in so far as she had been directly affected by the measures in question. Neither the Caravan Sites Act 1968 nor the Criminal Justice and Public Order Act 1994 had ever been applied to the detriment of the applicant.", "58. The Government submitted that \"to the extent that there [had] been any interference with the applicant's rights under Article 8 para. 1 (art. 8-1)\", such interference consisted of the enforcement against her of planning controls.", "59. It not being the Court's task to review legislation in the abstract, the Court will confine itself as far as possible to examining the specific issues raised by the case before it (see, as a recent authority, the Bellet v. France judgment of 4 December 1995, Series A no. 333-B, p. 42, para. 34). It does not appear that any measures based on either the Caravan Sites Act 1968 or the Criminal Justice and Public Order Act 1994 have ever been taken against the applicant. What is more, the order designating South Cambridgeshire entered into force only on 13 August 1993 (see paragraph 19 above), well after the enforcement notice (9 April 1990 - see paragraph 15 above) and the decision of the Secretary of State (16 April 1991 - see paragraph 17 above). It is not therefore within the competence of the Court to entertain those of the applicant's claims which are based on these Acts.", "60. On the other hand, the applicant was refused the planning permission which would have allowed her to live in the caravans on her land, was required to remove the caravans and prosecuted for failing to do so (see paragraphs 14-18 above), all pursuant to the relevant sections of the Town and Country Planning Act 1990. This undoubtedly constitutes \"interference by a public authority\" with the applicant's exercise of her right to respect for her home (see, mutatis mutandis, the above-mentioned Gillow judgment, p. 19, para. 47).", "C. Whether the interference was \"in accordance with the law\"", "61. It was not contested that the measures to which the applicant was subjected were \"in accordance with the law\". The Court finds no cause to arrive at a different conclusion.", "D. Whether the interference pursued a \"legitimate aim\"", "62. According to the Government, the measures in question were taken in the enforcement of planning controls aimed at furthering highway safety, the preservation of the environment and public health. The legitimate aims pursued were therefore public safety, the economic well-being of the country, the protection of health and the protection of the rights of others. The Commission accepted this in substance but noted that the aspect of highway safety, which figured prominently in the Council's decisions of 8 March 1990, the inspector's report of 14 February 1991 and, by implication, the Secretary of State's decision of 16 April 1991 (see paragraphs 14-17 above), was no longer relied on in later decisions. The applicant did not dispute that the authorities had acted in the furtherance of a legitimate aim.", "63. On the facts of the case the Court sees no reason to doubt that the measures in question pursued the legitimate aims stated by the Government.", "E. Whether the interference was \"necessary in a democratic society\"", "1. Arguments before the Court", "(a) The applicant", "64. The applicant accepted that Gypsies should not be immune from planning controls but argued that the burden placed on her was disproportionate. She stated that, seeking to act within the law, she had purchased the site to provide a safe and stable environment for her children and to be near the school they were attending.", "65. She drew attention to the fact that at the time of the events complained of, the official site further down Meadow Drove had not yet opened. In any event, the official site had since proved unsuitable for a single woman with children. There had been reports of crime and violence there and the inspector's report of May 1995 had noted that the site was bleak and exposed (see paragraph 22 above). In the circumstances, therefore, the official site could not be considered an acceptable alternative for the applicant's own site. On the other hand, the same report had noted that the applicant's site was well maintained. It could also be adequately screened by vegetation, which would lessen its visual impact on the countryside.", "66. Finally, the applicant considered that there was no further alternative open to her as the cost of stationing her caravans on a private site in the vicinity was prohibitive.", "(b) The Government", "67. The Government noted that planning laws were necessary in a modern society for the preservation of urban and rural landscape. This reflected the needs of the entire population. In assessing the need for particular measures, the domestic authorities required a wide margin of appreciation. In the present context, it was necessary to construe Article 8 of the Convention (art. 8) consistently with Article 1 of Protocol No. 1 (P1-1), which allowed the State, amongst other things, to enforce such laws as it deemed necessary to control the use of property in accordance with the general interest.", "68. National law was designed to achieve a fair balance between the interests of individuals and those of the community as a whole. In particular, it provided for a quasi-judicial procedure allowing individuals to challenge planning decisions (see paragraph 31 above); this procedure, moreover, had been found by the Court in its Bryan judgment cited above to meet the requirements of Article 6 of the Convention (art. 6).", "69. In so far as it was necessary to afford Gypsies special protection, this need had been taken into account. The Government had provided legislation and guidelines requiring authorities involved in the planning process to have particular regard to the specific constraints imposed by Gypsy life (see paragraphs 35-37 and 39 above). Moreover, Gypsies' accommodation needs were met by local authorities through the provision of authorised caravan sites and by advising Gypsies on the prospects of planning permission for private sites. In the applicant's case, the reports of the inspectors showed that her Gypsy status had been weighed in her favour, as indeed was required by the pertinent guidelines (see paragraph 16 above). In any event, it was unacceptable to exempt any section of the community from planning controls, or to allow any group the benefit of more lenient standards than those to which the general population was subject.", "70. The applicant had had sufficient alternative options open to her. She had been invited to apply for a pitch on the official site further down Meadow Drove, both before and after it opened (see paragraph 25 above). She had failed to do so on each occasion. The Government denied that crime and violence were rife there; in any event, in so far as the applicant's failure was based on such allegations, it was clear that they could not have been material considerations before the site had even opened. Moreover, in the Government's contention, sufficient private sites were available in the area (see paragraph 27 above), most of them owned by Gypsies. The true position was that the applicant had consistently refused to countenance living anywhere else than on her own land. Finally, the sanctions which had been applied to the applicant had been limited to small fines (see paragraph 18 above).", "(c) The Commission", "71. The Commission submitted that Gypsies following a traditional lifestyle required special consideration in planning matters and considered that this had been recognised by the Government. In the specific circumstances of the applicant's case, however, a proper balance had not been achieved.", "72. The area in question had not been singled out for special protection, whether as a national park, as an area of outstanding natural beauty or as a green belt. The stationing of caravans on the frontage of the site had been authorised, as had the erection of buildings belonging to an agricultural engineering business on neighbouring land (see paragraph 16 above). An official Gypsy caravan site had been opened further down Meadow Drove (see paragraph 24 above). Moreover, the inspector, in her report of May 1995, had found that the applicant's site could be adequately screened from view by planting hedges (see paragraph 22 above).", "73. For the same reasons as given by the applicant, the Commission accepted that the applicant could not be required to move to the official site further down Meadow Drove. It further accepted that the space available on other official caravan sites in the South Cambridgeshire area was insufficient (see paragraph 16 above). Nor could the applicant be required to move to a private authorised site, the inspector herself having expressed doubts as to the availability of plots on such sites and their price (see paragraph 22 above).", "2. The Court's assessment", "(a) General principles", "74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the \"necessity\" for an interference, as regards both the legislative framework and the particular measure of implementation (see, inter alia and mutatis mutandis, the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, para. 59, and the Miailhe v. France (no. 1) judgment of 25 February 1993, Series A no. 256-C, p. 89, para. 36). Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context (see, inter alia and mutatis mutandis, the above-mentioned Leander judgment, ibid.). Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.", "75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community (in the context of Article 6 para. 1 (art. 6-1), see the Bryan judgment cited above, p. 18, para. 47; in the context of Article 1 of Protocol No. 1 (P1-1), see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, para. 69; the Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117, pp. 65-66, paras. 74-75 and 78; the Poiss v. Austria judgment of 23 April 1987, Series A no. 117, p. 108, paras. 64-65, and p. 109, para. 68; the Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, para. 57, and p. 19, para. 63). It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.", "76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her \"home\", a right which is pertinent to her and her children's personal security and well-being (see the above-mentioned Gillow judgment, p. 22, para. 55). The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 (art. 8) contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (art. 8) (see the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, para. 87).", "77. The Court's task is to determine, on the basis of the above principles, whether the reasons relied on to justify the interference in question are relevant and sufficient under Article 8 para. 2 (art. 8-2).", "(b) Application of the above principles", "78. The applicant complained about the rejection of her appeal against the enforcement notice.", "79. The law governing the decision-making process leading to the contested decision entitled the applicant to appeal to the Secretary of State on the ground, inter alia, that planning permission ought to be granted. Moreover, the appeal procedure comprised an assessment by a qualified independent expert, the inspector, to whom the applicant was entitled to make representations (see paragraphs 16 and 33 above). The Court is satisfied that the procedural safeguards provided for in the regulatory framework were therefore such as to afford due respect to the applicant's interests under Article 8 (art. 8). Subsequent judicial review by the High Court was also available, notably in so far as the applicant felt that the inspector (or the Secretary of State) had not taken into account relevant considerations or had based the contested decision on irrelevant considerations (see paragraph 34 above). In the event, the applicant declined to appeal to the High Court on the advice of counsel that such an appeal was bound to fail (see paragraph 17 above).", "80. In the instant case, an investigation was carried out by the inspector, who actually saw the land for herself and considered written representations submitted by the applicant and the District Council (see paragraph 16 above). In conformity with government policy, as set out in Circulars 28/77 and 57/78 (see paragraphs 39 and 40 above), the special needs of the applicant as a Gypsy following a traditional lifestyle were taken into account. The inspector and later the Secretary of State had regard to the shortage of Gypsy caravan sites in the area and weighed the applicant's interest in being allowed to continue living on her land in caravans against the general interest of conforming to planning policy (see paragraphs 16 and 17 above). They found the latter interest to have greater weight given the particular circumstances pertaining to the area in question. Thus, in her report the inspector stated:", "\"... [the applicant's caravan site] extends development further from the road than that permitted. It thus intrudes into the open countryside, contrary to the aim of the Structure Plan to protect the countryside from all but essential development.\"", "and:", "\"It is ... clear in my mind that a need exists for more authorised spaces. ... Nevertheless, I consider it important to keep concentrations of sites for gypsies small, because in this way they are more readily accepted by the local community. ... [T]he concentration of gypsy sites in Willingham has reached the desirable maximum and I do not consider that the overall need for sites should, in this case, outweigh the planning objections.\"", "The Secretary of State's reasoning in his decision included the following:", "\"The decisive issue in regard to the planning merits of your appeals is considered to be whether the undisputed need for additional gypsies' caravan site provision, in the administrative areas of the District Council, and of the County Council, is so pressing that it should be permitted to override the objections on planning policy and highway safety grounds to the retention of the use of the appeal site as a residential caravan site for gypsies. On this approach, the view is taken that the objections to the continued use of the appeal site as a residential gypsy caravan site are so strong, on planning policy and highway safety grounds, that a grant of planning permission could not be justified, either on a temporary or personal basis. In reaching this conclusion, full consideration has been given to policy advice in the Department's Circular 28/77, giving guidance to Councils on the need to provide adequate accommodation in the form of caravan sites, for gypsies residing in or resorting to their area.\"", "81. The applicant was offered the opportunity, first in February 1992 and again in January 1994, to apply for a pitch on the official caravan site situated about 700 metres from the land which she currently occupies (see paragraphs 24 and 25 above). Evidence has been adduced which tends to show that the alternative accommodation available at this location was not as satisfactory as the dwelling which she had established in contravention of the legal requirements (see paragraph 26 above). However, Article 8 (art. 8) does not necessarily go so far as to allow individuals' preferences as to their place of residence to override the general interest.", "82. It is also true that subsequently, in her report of July 1995, the second inspector found that the applicant's caravans could have been adequately screened from view by planting hedges; this would have hidden them from view but, so the inspector concluded, would not have reduced their intrusion into open countryside in a way which national and local planning policy sought to prevent (see paragraph 22 above).", "83. After the refusal of planning permission the applicant was fined relatively small sums for failing to remove her caravans (see paragraph 18 above). To date she has not been forcibly evicted from her land but has continued to reside there (see paragraph 7 above).", "84. In the light of the foregoing, the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interest under Article 8 (art. 8), and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The latter authorities arrived at the contested decision after weighing in the balance the various competing interests in issue. As pointed out above (at paragraph 75), it is not the Court's task to sit in appeal on the merits of that decision. Although facts were adduced arguing in favour of another outcome at national level, the Court is satisfied that the reasons relied on by the responsible planning authorities were relevant and sufficient, for the purposes of Article 8 (art. 8), to justify the resultant interference with the exercise by the applicant of her right to respect for her home. In particular, the means employed to achieve the legitimate aims pursued cannot be regarded as disproportionate. In sum, the Court does not find that in the present case the national authorities exceeded their margin of appreciation.", "(c) Conclusion", "85. In conclusion, there has been no violation of Article 8 (art. 8).", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)", "86. The applicant claimed to be the victim of discrimination on the ground of her Gypsy status, contrary to Article 14 of the Convention taken together with Article 8 (art. 14+8). Article 14 of the Convention (art. 14) provides:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "In her contention, both the 1968 Act and the Criminal Justice and Public Order Act 1994 prevented Gypsies from pursuing their traditional lifestyle by making it illegal for them to locate their caravans on unoccupied land.", "87. The Government denied that the applicant had been the victim of any difference of treatment. The Commission confined itself to noting that she had never been directly and immediately affected by either of the Acts in question.", "88. The Court has already found (at paragraph 59 above) that it cannot consider any of the applicant's claims based on the Caravan Sites Act 1968 or the Criminal Justice and Public Order Act 1994. More generally, it does not appear that the applicant was at any time penalised or subjected to any detrimental treatment for attempting to follow a traditional Gypsy lifestyle. In fact, it appears that the relevant national policy was aimed at enabling Gypsies to cater for their own needs (see paragraphs 39 and 40 above).", "89. That being so, the applicant cannot claim to have been the victim of discrimination contrary to Article 14 taken together with Article 8 (art. 14+8). Accordingly, there has been no violation under this head (art. 14+8)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1955 and lives in or about Lancashire.", "9. The applicant and his family are gypsies. They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at Cottingley Springs. They lived there permanently for about thirteen years, until February 1997 when they moved off. They stated that they moved off the site at that time due to the anti-social behaviour of others living on the site and others who came onto the site, e.g. vehicles being driven round the site at night, violence and disturbances such that they could not sleep at night or the children play safely during the day. They moved into a rented house but were unable to adapt to these conditions. They gave up their tenancy when offered two plots for the family at Cottingley Springs.", "10. The applicant returned to the site with his family in October 1998.", "11. By a licence agreement dated 22 October 1998, Leeds City Council (“the Council”) granted the applicant and his wife a contractual licence to occupy plot no. 35 at Cottingley Springs caravan site in Leeds. The licence in Clause 12 required the applicant as occupier to comply with the Site Regulations, while Clause 18 stated:", "“No nuisance is to be caused by the occupier, his guests, nor any member of his family to any other person, including employees of the Council, the occupiers of any other plots on the Site, or occupiers of any land or buildings in the vicinity of the Site.”", "12. On 29 March 1999, the applicant’s adult daughter Margaret Connors was granted a licence to occupy the adjacent plot, Plot 36, where she lived with Michael Maloney who later became her husband. She also cared for the applicant’s mother-in-law, Margaret Kelby, until she went into a residential nursing home in the area. The applicant’s adult sons, James Junior and Joseph, did not reside with the applicant but were frequent visitors both to his plot and their sister next door.", "13. During 1999, the applicant and his family were in dispute with the Council due to its alleged failure to undertake repairs on Plot 36 (there was no electricity supply or other facilities for some time), their objection to paying electricity charges which they considered to be overcharging and concerning the Council’s refusal to accept payment by instalment for the site deposit. Their complaints were referred to the Local Authority Ombudsman to investigate.", "14. The Government stated that the applicant’s children (including his adult sons James Junior and Joseph) and Michael Maloney misbehaved and caused considerable nuisance at the site. The Council’s Travellers Services Manager, based at the site, was aware of many incidents of nuisance caused by the applicant’s children and visitors. The Manager visited the applicant and Margaret Connors on a number of occasions to report the misbehaviour and nuisance. On 16 December 1998, the Council gave the applicant written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Nevertheless, both the applicant’s children and his visitor Michael Maloney continued to cause nuisance at the caravan site.", "15. In January 2000, when it became known that Margaret Connors was going to marry Michael Maloney, the applicant alleged that the Council manager of the site stated, “The minute you marry Michael Maloney you’ll be out that gate”. Michael Maloney was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “a magnet for trouble”. In February 1997, the Maloney family had moved from the site. They remained in the Leeds area until the summer of 1999 when they went to Nottingham.", "16. On 31 January 2000, notice to quit was served on the family requiring them to vacate both plots. No written or detailed reasons were given by the Council, though the issue of “magnet for troublemakers” had been raised.", "17. On 12 February 2000, Margaret Connors married Michael Maloney and they continued to live on Plot 36.", "18. On 20 March 2000, the Council issued two sets of proceedings for summary possession pursuant to Order 24 of the County Court Rules, one concerning the applicant and his wife and family on Plot 35 and the other against Margaret Connors and “persons unknown” on Plot 36. On 24 March 2000, the applicant was served with various documents. The grounds for possession stated that the defendants were in occupation without licence or consent. In the witness statement dated 17 March 2000, the site manager referred to Clause 18 of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit. No particulars of breach were given. He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines set out in the Department of the Environment Circular 18/94.", "19. The applicant disputed that they were in breach of Clause 18, that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare.", "20. At this stage, the applicant’s family consisted of his children Charles aged 14, Michael aged 13, Daniel aged 10 and Thomas aged 4 months. Thomas had been suffering from serious illness, with kidney problems and rashes of unknown origin, while the applicant’s wife, who was asthmatic, had suffered several attacks requiring visits to hospital. The applicant himself had been having chest pains and was awaiting a hospital appointment. Daniel had settled well into full-time education at the nearby primary school, and the others were receiving assistance, including teaching at home.", "21. The Council served further witness statements containing particulars of the allegations of nuisance. These were disputed by the applicant. They related largely to Margaret and Michael Maloney on Plot 36.", "22. On 14 April 2000, the summary possession proceedings were adjourned pending the determination of the applicant’s application for permission to apply for judicial review of the Council’s decision to determine the licence of his plot which had been lodged on 10 April 2000. During the hearing, Margaret and Michael Maloney indicated an intention to leave the site. As the bulk of the complaints were against them, the applicant stated that the Council were requested to review its decision to terminate the licence of the applicant and his family.", "23. On 12 May 2000, the High Court refused permission to apply for judicial review. The judge noted that the applicant’s counsel accepted that the necessary investigations had been carried out by the Council and rejected as unarguable the contention, as regarded procedural fairness, that the applicant had not been given prior warning of the threat of eviction.", "24. On 16 May 2000, the applicant applied to the Director General of Fair Trading for a ruling that the terms of the licence agreement were unfair, in particular that Clause 18 was unfair in holding him responsible for the actions of visitors whom he could not reasonably be expected to control.", "25. The Council took the decision to proceed with the eviction. It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn. On 19 June 2000, the County Court granted a possession order. The Council undertook not to execute a warrant for possession until 14 July 2000 on condition that the applicant and his family were of good behaviour and kept the peace.", "26. Further representations were made by the applicant to the Council without success.", "27. On 13 July 2000, as the applicant had not given up possession, the Council obtained a warrant for possession of the plot. The Government stated that the applicant and his family barricaded themselves in the plot and refused to leave when the County Court bailiffs attended to execute the warrant. The Council applied to the High Court for enforcement of the order for possession. On 24 July 2000, the High Court ordered the Sheriff to execute the warrant for possession. The Sheriff’s officer, the bailiffs and the West Yorkshire police carried out a planning and risk assessment. The Sheriff’s officer attended the site and requested the applicant to vacate the plot. He refused.", "28. On 1 August 2000, early in the morning, the Council commenced enforcement of the eviction, in an operation involving Council officers, the Sheriff’s officers and numerous police officers. The applicant stated that also police helicopter, police dogs, control centre, numerous police vehicles and detention vans were employed. The operation lasted five hours.", "29. The Government stated that the police arrested the applicant and his son Daniel for obstruction under section 10 of the Criminal Law Act 1977. The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested. He was handcuffed and held in a police van for an hour and subsequently at the police station, though he was complaining of chest pains. At about midday, he was taken to hospital for emergency admission.", "30. According to the applicant, his thirteen-year-old son Michael was also seized and held in a van by the police for five hours during the eviction. The applicant’s wife was left to cope alone, the baby Thomas being ill.", "31. The family’s two caravans were removed (they owned one and the other was rented). The applicant stated that it was not until late afternoon that their own caravan was returned to them. However many of their possessions were still held by the Council, including medicine needed for Thomas. During 3 August 2000, the Council returned their possessions, including a washing machine, drier, microwave, gas bottles, kettle and clothing. This was dumped on the roadside some distance away from the applicant’s caravan. The Government stated that on 1 August 2000 the Council removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them. At the request of the applicant, the Council returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at Cottingley Drive owned by the Council, where the presence of gypsies was sometimes tolerated for short periods. As they claimed it was not possible to get into the field to deliver the goods directly, the Council unloaded the goods at the edge of the field, informed the applicant and kept watch until they were collected.", "32. A group of gypsies was at that time on the land at Cottingley Drive for the purpose of attending a wedding. This group did not however leave by 1 August as previously agreed, staying on to attend the funeral of a baby who had died on 31 July 2000. The Council prepared eviction proceedings and included the applicants as “persons unknown”. The applicant alleges that no assistance or advice was given to them as to where they could go, save for an offer of accommodation at Bridlington (on the east coast) which failed to take into account the local community ties of the family who had lived on Cottingley Springs site for most of 13 years and in the Leeds area for some 20 to 30 years.", "33. An application for adjournment of the possession proceedings was rejected by the County Court on 14 August 2000. The applicant and his family moved from the land and travelled around the Leeds area stopping for a few days at a time.", "34. The Government stated that the applicant and his family had returned to the caravan site three times since as trespassers. The Council applied for an injunction to ban the applicant and his family from entering the site. The outcome of these proceedings is not known.", "35. The applicant stated that following the eviction he and his family were required to move on repeatedly. Partly at least due to the stress and uncertainty, the applicant’s wife chose to move into a house with the younger children and they were separated in May 2001. Daniel lived for a while with the applicant. Following the eviction, he did not return to school. The applicant stated that he continued to travel in his caravan, with his son Michael and occasionally Daniel, but that they were unable generally to remain in any place for more that two weeks. He continued to have chest pains for which he received medication and tests. As he had no permanent address, he used his wife’s address for postal purposes, including medical appointments.", "ii. Site availability. There must be a substantial availability of sites for gypsies. Stanley Burnton J referred to the problem of ‘balance’ in general terms in Isaacs in paragraph 33: [cited above].", "The submission is thus that there is no good clogging up all the caravan sites with those who do not move, and effectively removing them from the stock of available sites, by giving security of tenure." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "1. Provision for gypsy sites", "36. Prior to 1994, the Caravan Sites Act 1968 provided in section 6 that it should be the duty of local authorities “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). In addition, approximately 100 million pounds sterling (GBP) was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites.", "37. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. The change in policy underlying the repeal was explained by the Parliamentary Under-Secretary of State:", "“In the past 13 years the number of gypsy caravans stationed on unauthorised sites has remained broadly the same... The shortfall in provision has been largely due to natural growth in the gypsy population. Plainly site provision is barely keeping pace with the growth in demand and is not reducing the shortfall...", "We recognise that council site provision has contributed to alleviating the difficulties experienced by the gypsy community. Indeed the predicament of gypsies in England and Wales is now far different from in 1968. At that time, probably fewer than 10 per cent of gypsy caravans in England and Wales were stationed on authorised sites, whereas the figure is now about 46 per cent. A further 24 per cent are on authorised private sites, and many more are stationed on tolerated sites where they are allowed to stay with reasonable security from eviction. ...", "We believe that public provision of sites has now reached an acceptable level. Public accommodation has been provided for 46 per cent of the total number of gypsy caravans in England and Wales. We do not believe that it is in the public interest to continue to maintain what has become an open-ended commitment to provide sites for all gypsies seeking accommodation at the public’s expense. It is our view that the right approach now is to encourage more gypsies to establish their own sites through the planning system. We know that many gypsy families would prefer to establish their own sites rather than reside on council sites. The National Gypsy Council has for a long time supported the case for private provision. Private site provision has increased by more than 135 per cent since 1981. Our intention is to encourage that trend.”", "38. Local authorities remain empowered to provide gypsy sites under section 24 of the 1960 Act and such sites remain the largest single component of the overall supply. Under current policy guidance, the Government have emphasised the importance that local authorities maintain their existing sites and consider if it is appropriate to provide further sites (Circular 18/94, paragraphs 21-22). In 2000, the Government announced that they were making available 17 million pounds sterling over the period 2001-2004 to help local authorities to maintain their sites.", "2. Unauthorised stationing of caravans", "39. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as", "“... a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”.", "40. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).", "41. Guidance issued by the Secretary of State dated 23 November 1994 (Circular 18/94) concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”:", "“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ...", "8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.", "9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”", "42. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 ( R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales, and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.", "3. Security of tenure on caravan sites", "43. Occupiers of gypsy caravan sites run by a local authority receive limited security of tenure pursuant to Part 1 of the 1968 Act. An occupier’s contractual right can be determined by four-week’s notice and he may only be evicted by court order. Local authorities are in addition required to have regard to the guidance on best practice in managing gypsy sites, e.g. such as set out Circular 18/94 concerning statutory duties to support children, to house the homeless and make appropriate educational provision for school-age children. A local authority failing to have regard to that guidance might be subject to challenge by way of judicial review.", "44. The Mobile Homes Act 1983 (the 1983 Act) confers further protection upon a person who lives in a caravan or mobile home as his only or main residence. Such a person may not be evicted save by court order and on the site owner having established one of the stated grounds, inter alia, that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time and that it is reasonable for the agreement to be terminated. This protection was conferred on occupiers of caravans on privately owned residential sites and also the occupiers of local authority sites. However, section 5(1) excluded land run by the local authority as a caravan site for gypsies. The effect of this exclusion was analysed by the House of Lords in Greenwich London Borough Council v. Powell (1989) 21 HLR 218:", "“... the intention of the legislature in the Act of 1983 was clearly to exclude from the definition of ‘protected site’ sites such as that at Thistlebrook provided by local authorities in discharge of their duty under section 6 of the Act of 1968 to accommodate those whom they bona fide believe to be gypsies because they are nomadic for part of the year, notwithstanding that they may establish a permanent residence on the site by returning from year to year; such a site will not become a ‘protected site’ even if some of the erstwhile nomads, as well they may, give up their nomadic way of life entirely. It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment...”", "45. Secure tenants of conventional flats or houses provided or managed by local authorities under the Housing Act 1985 enjoy a similar regime of security of tenure to that conferred upon occupiers of a residential caravan site by the 1983 Act.", "46. A number of cases have been brought in the domestic courts challenging the lack of security of tenure on local authority gypsy sites.", "(a) Somerset County Council v. Frederick Isaacs [2002] EWHC 1014", "47. In this case, a gypsy, whose licence to occupy a local authority site had been revoked for alleged misbehaviour, claimed in the proceedings brought for possession of the plot, that the eviction would be in breach of Articles 8 and 14 of the Convention and sought a declaration of incompatibility.", "48. In rejecting the gypsy’s claims and ordering possession, the High Court judge, Mr Justice Stanley Burnton, found that the eviction of the applicant would interfere with his rights under Article 8 § 1 but that the statutory framework, as a matter of general principle and policy, satisfied the requirements of Article 8 § 2. He noted two general points:", "“33. ... First, statutory regulation of housing and the consequences of such regulation are matters of some complexity. For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960’s, security of tenure for residential tenants and control of rents were reimposed under the Rent Acts. Doubtless those measures were in the short term interests of residential tenants. However, in the long term they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest.", "34. The second general consideration is related to the first. Housing is very much ‘the area of policy where the court should defer to the decision of Parliament’... The need for, and the consequences of, legislation in this area are matters for Parliament, not the court...", "‘... We do not lose sight of the fact that courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide margin of appreciation in such matters... our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny’. Sheffield City Council v. Smart [2002] EWCA Civ. 04 per Laws LJ", "35. The policy behind the exempting provisions was clearly stated by Lord Bridge in his speech in the House of Lords in Powell at 1012 ...:", "‘Any other construction of ‘protected site’ in section 5(1) of the Act of 1983 would, it seems to me, cause great difficulties both for local authorities and for most of the gypsy community and would undo much of the good work which has been done in this difficult field. Those already established on sites like Thistlebrook would, of course, enjoy full 1983 security of tenure. But local authorities in the position of the council would need to start de novo to discharge their duty under section 6 of the Act of 1968. Many existing designations under section 12 would have to be revoked or would perhaps be automatically invalidated... For the future, local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residence acquiring any degree of permanency. This, I think, they could in practice only do by applying a short rule-of-thumb limit of stay, which would be quite contrary to the interests of the gypsy community.’", "36. [Counsel for the defendant gypsy] submitted that this statement was no longer applicable as a result of the abolition of the duty of the local authority to provide sites for gypsies. I do not accept this submission. The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide, although they are under no duty to do so. Furthermore, as has been seen, central government guidance is that it is important for those sites to be maintained.”", "49. The judge quoted at length the evidence of the Secretary of State’s department on the aims of the two statutory frameworks, one applying to all local authority gypsy caravan sites and the other to all other residential caravan sites run by local authorities and private owners:", "“ ‘ 25. With Part I of the 1968 Act, and with the 1975 and 1983 Acts, Parliament sought to address specific problems of commercial exploitation experienced by occupiers of private sites. There has never been any evidence to suggest that such problems extend to local authority Gypsy sites, and accordingly those legislative provisions that are directed at those problems have not been extended to such sites. The problems faced by Gypsies were wholly different, relating primarily to the acute shortage of sites available to meet their particular accommodation needs. The said problems were addressed by Part II of the 1968 Act, and supplemented by the departmental guidance circulars issued to local authorities. By 1994, the scheme of part II of the 1968 Act was found to have served its purpose as far as it could reasonably be expected to do. There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities. The emphasis of Government policy has now changed to one of encouraging Gypsies themselves to add to that existing supply. Nevertheless existing local authority supply remains an essential component of the Government’s strategy of securing an adequate level of accommodation for Gypsies. The policy of the 1994 Act is to maintain and safeguard that distinct source of supply.", "26. Thus, I draw particular attention to the fact that the statutory protection afforded by Part 1 of the 1968 Act and the 1975 and 1983 Acts has been and still is available to Gypsies if they choose to reside at sites other than those provided by local authorities specifically for Gypsies. In general, the key difference between such sites has been the greater flexibility, which is usually available on local authority Gypsy sites, in order to accommodate the nomadic lifestyle of occupiers. This may allow Gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, while paying a reduced rent as a retainer during the few months of the year while they may be travelling in search of seasonal work. Other local authority sites and private sites, in general, are aimed at longer-term residential occupiers, without the need for such flexibility because they are not pursuing a nomadic lifestyle.", "27. Nevertheless, there are of course a number of Gypsies who occupy sites on a long-term basis, and other mobile home residents who do not consider themselves to be Gypsies, but who prefer to occupy private sites on a more short-term basis. The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families; it is not to classify or categorise individuals or families. Accordingly, Gypsies seeking to settle on a more permanent site may occupy private or local authority (non-Gypsy) sites and benefit from the scheme put in place by Part I of the 1968 Act and the 1983 Act. This diversity of public and private site provision reflects that which is available in housing generally.", "28. The separate statutory framework allows for flexibility in meeting the accommodation needs of Gypsies. It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites, including local authority Gypsy sites. In my view, such a single statutory framework would be detrimental to the interests of Gypsies throughout the country. If the security of tenure provisions of that framework applied equally to local authority Gypsy sites, it would undermine the flexibility that such sites provide in catering for the varied lifestyles of Gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each Gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site, whether or not they pursue a nomadic lifestyle. Inevitably, fewer sites, if any, could be made available specifically for Gypsies pursing a nomadic lifestyle.", "...", "32. Experience suggests that local authorities would face difficulties in managing sites if eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders. There is a balance to be struck between the latter and the merits of flexibility (already mentioned) that such sites offer in catering for the varying accommodation needs of Gypsies. To this (and in favour of the existing position) must be added the fact that in reaching decisions about evictions local authorities, as responsible bodies, need to take into account the range of obligations and considerations outlined in paragraph 29 above. These amount to significant safeguards against unscrupulous or unjustified evictions. Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.’ ”", "50. The judge concluded:", "“38. While I am not over-impressed by the vagueness of the statement in paragraph 32 that ‘experience suggests’, applying the guidance given by Laws LJ in Smart, this evidence satisfies me that the exempting provisions are ‘necessary in a democratic society’, and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant. Moreover, any such safeguards would detract from the flexibility that Parliament has decided is appropriate for exempted sites. ...", "39. I can deal with Article 14 quite shortly. The exemption in section 4(6) of the CSA is justified by the special position of local authorities and the policy considerations referred to above. The exemption is section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant. It therefore raises no question of discrimination contrary to Article 14.", "Conclusion", "...", "41. This conclusion is consistent with that of the Commission in P v. UK (App. No. 14751/89) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under Articles 8 and 14. Mr Watkinson submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies. As I stated above, I do not regard this as a valid distinction between the present position and that before 1994. There are still sites provided by local authorities for gypsies, and indeed if there were none there would be no scope for section 5 of MHA.”", "(b) R. (Smith) v. Barking and Dagenham London Borough [2002] EWHC 2400", "51. In this case, a Romany gypsy, threatened with eviction from a council site, sought a declaration that the provisions of the 1968 Act were in breach of Articles 8 and 14 of the Convention insofar as it failed to provide the protection given to secured tenants of local authority conventional housing. In rejecting the application, Mr Justice Burton noted that the parties had agreed that there had, in the past, been objective justification for the lack of security of tenure of gypsy occupiers of council sites and that the claimant’s case was that, in light of changes, that was no longer the case. He summarised the Secretary of State’s case for justification for the absence of security of tenure as follows:", "“i. Nomadism. The whole raison d’être for gypsy culture and identity, and indeed its defining factor, given the absence of necessary ethnicity - not all gypsies are Romanies, not least the so-called New Travellers - is nomadism. Hence the definition in section 16 of the 1968 Act...", "iii. Flexibility. This is reflected in the decision in Isaacs. There is a stock of secure pitches on private sites, where there is security of tenure by virtue of the MHA. It is in respect of private sites that protection from commercial exploitation is necessary, and in any event the safeguard of administrative law remedies is not available. Thus the necessary ‘mix’ of private and council, secure or insecure, pitches, is maintained.", "Mr Gahagan [Director of Housing at the Department for Transport, Local Government and the Regions] most clearly sets out the effect of these justifications in combination at paragraph 15 of his reply witness statement:", "‘There are limited resources for providing publicly funded accommodation, whether it be for gypsies or members of the ‘settled’ community. The Government is trying to make sure that there is provision for gypsies who have a nomadic way of life. There are other alternative forms of occupation for those with a settled way of life, which are as equally available to gypsies as they are to any other person. However if accommodation which was intended for those with a nomadic way of life could become converted into accommodation for those with a settled way of life just by the life choices made by the occupants, then this would make planning for nomadic persons by local and central Government very difficult.’", "Dr Kenrick [Chairman of the Romany Institute, expert witness instructed by the claimant], while not challenging the historic justification, submits that it no longer applies:", "‘44. Mr Gahagan states that the legislation regarding gypsy accommodation is tailored so as to facilitate a nomadic way of life... The fact is that the nomadic way of life is ending for most gypsies, and therefore the existing legislation is unsatisfactory...", "66. In conclusion, the situation today is very different from what was envisaged at the time of the 1968 ... Act and the [MHA]. The examples I have given of the low turnover and lack of vacancies show that council sites are becoming permanent residences for most of the families. They often have mobile homes and utility buildings. In this changed situation there seems no reason why residents should not have the same right as the tenants of council housing or non-Gypsy mobile home sites.’ ”", "52. The judge summarised the statements of both Mr Gahagan and Dr Kenrick concerning the differing patterns of life chosen by gypsies: Mr Gahagan emphasised the flexibility necessary to cope with those who move on a regular basis or were permanently based on one site but possibly travelling several months a year while Dr Kenrick stated that position had substantially moved on from the time of the 1968 Act when it was anticipated that 20% of families travelled, that local authorities even encouraged families to become permanent residents by allowing them to leave for periods and pay half rent and that for the small minority that travelled all year round there were the existing small number of transit sites. The judge then summarised the conclusions of the October 2002 report (see below) which was found to be the most significant feature in the evidence before him.", "53. The judge concluded:", "“32. It is plain from the passages of the October 2002 Report that I have cited that it is now accepted that there is a substantial majority that no longer travels for any material period, albeit that there is a substantial minority that does travel. No figures have been produced, and, as Dr Kenrick himself has pointed out, no statistics as to turnover yet exist, but the varied passages from the Report which I have cited in paragraph 30(vi) show that it is accepted that some thinking must now be done. Nevertheless when asked by me whether the Secretary of State wanted an adjournment to consider the position further, Mr Mould clearly stated that no such adjournment was sought, and that his case remains that, rethink though there plainly is going to be, the Secretary of State still accepts the onus of showing that the present legislation can still be justified. This is not a case, as adumbrated in Seymour-Smith and Hooper, where the Government now accepts that the position can no longer be justified but asserts an entitlement to a period to correct discriminatory effects before a declaration is made... but rather a situation where the Government is still in the process of monitoring the position and, until it reaches a conclusion, asserts that the present position can be justified.", "33. If this were simply a matter of concluding that there is now a substantial majority of gypsies who are no longer nomadic, whose position can be immediately safeguarded by some new legislation of the kind discussed in general terms in paragraph 31 above, I would not feel inhibited either by the well-established principles of allowing deference and/or a margin of appreciation to Government or Parliament... nor in particular by the principle enunciated by the Court in Mellacher ... whereby the ‘possible existence of alternative solutions does not in itself render the contested legislation unjustified’. However I am satisfied that the position is not so straightforward. There is, in my judgment, quite apart from any simple question of giving security of tenure to those in council caravan sites, a necessary, indeed, crucial, concomitant question to be considered and resolved, before it can be concluded that the present position is unjustified. I conclude that there is a very difficult question of how to define gypsies, to whom security of tenure in such sites is to be given (if it is). If security of tenure is to be given to all long-term caravan occupiers on council sites, as they are on private sites, then how, if at all, is there to be any differentiation between gypsy/traveller occupiers and any other occupiers who wish to place a mobile home on a local authority site, with security of tenure? And if there is to be no such differentiation, then the last state of gypsies whose cultural heritage or spiritual and cultural state of mind is nomadism or travelling may be worse than the first. At present that actual or potential nomadism (‘a substantial nomadic habit of life’) is the justification both for the lack of security of tenure and also for the special arrangements for local authority sites catering especially for them, i.e. within section 24 of the Caravan Sites and Control of Development Act 1960. Dr Kenrick himself refers obliquely to the problem, in paragraph 53 of his witness statement: “ The residents of council sites do not have to retain their Gypsy status (by travelling for an economic purpose...) in order to retain their pitches. ” ...", "35. I am satisfied that ... the absence of security of tenure for all gypsy/travellers on all local authority sites, is still appropriate and justified. I have no doubt that the Government will give further thought to the position, as indicated in the October 2002 Report, will obtain the necessary further statistics and will, pursuant to its own declared intention to give protection to gypsies and their way of life, continue monitoring the present position. Meanwhile, the safeguard of judicial review remains, and, although there is some discussion in the Report (pp. 246-7) about the present lack of security of tenure, eviction of residential gypsy occupiers on local authority caravan sites is not flagged up as a present problem...”", "(c) Sheffield City Council v. Smart [2002] EWCA Civ O4", "54. In this case, which dealt with local authority housing for the homeless that fell outside security of tenure provisions, the Court of Appeal rejected the applicants’ claims that their summary eviction breached Articles 6 or 8 of the Convention:", "“If this court were to hold that a tenant in the circumstances of either of these appellants is by force of Article 8(2) entitled to have the county court judge (or the judicial review court it matters not) decide on the particular facts whether her eviction is disproportionate to the council’s aim (in essence) of managing its housing stock properly, we would in effect thereby convert the non-secure tenancies enjoyed by homeless persons into a form of secure tenancy. We should be imposing a condition, not unlike the requirement of reasonableness presently applicable in relation to secure tenancies under the 1985 Act, which takes the judgment whether possession of the premises should be obtained from the landlord council and gives it to the court...[the appellants’ argument] ... amounts in truth to a ‘macro’ assault on the mechanics of the statutory scheme for protection of homeless persons...”", "4. Report on the Provision and Condition of Local Authority Gypsy/Traveller Sites in England (October 2002)", "55. This report, issued by the Office of the Deputy Prime Minister, summarises the information and conclusions of research on the extent and quality of local authority gypsy sites carried out by the Centre for Urban and Regional Studies at the University of Birmingham.", "56. In the Executive Summary, it is noted that:", "“– There is no clear, widely understood national policy towards accommodation for Gypsies and other Travellers in England; there is a general feeling that such a policy is needed involving local authorities and others but with a strong lead from central government.", "– There are around 320 local authority sites providing about 5,000 pitches. It is important that the existing network is retained and currently closed sites brought back into use. ...", "– We estimate that between 1,000 and 2,000 additional residential pitches will be needed over the next five years. Between 2,000 and 2,500 additional pitches on transit sites or stopping places will also be needed to accommodate nomadism. The latter need to form a national network.", "– There are obvious barriers to site provision, especially through resistance from the settled community. Many believe a statutory duty and central subsidy are needed to ‘encourage’ local authorities to make provision. Treating site provision in the same way as housing for planning purposes could help.", "– Site management is more intensive than is usual for social housing management and requires higher staff/resident ratios. It should be ‘firm but fair’. There are areas where greater formality might be introduced, including performance monitoring...”", "57. Concerning the legal definition of a gypsy (page 7):", "“The legal definition of a ‘Gypsy’ is ‘persons of nomadic habit of life, whatever their race or origin’, excluding members of an organised group of travelling showmen or those engaged in travelling circuses. This was clarified in the case of R v. South Hams ex parte Gibbs as ‘persons who wander or travel for the purpose of making or seeking their livelihood not persons who move from place to place without any connection between their movement and their means of livelihood)’. Thus the legal definition is explicitly concerned with habitual lifestyle rather than ethnicity, and may include both ‘born’ Gypsies or Travellers and ‘elective’ Travellers such as the so-called New (Age) Travellers, once a sufficient nomadic habit of life has been established.", "Alongside the legal definition, there is an ethnic definition of a Gypsy or Traveller... Romany Gypsies were accepted as an ethnic group for race relations legislation in 1989. Irish Travellers ... were accepted as an ethnic group for race relations legislation in August 2000.”", "58. Concerning travelling (page 8):", "“Not all ethnic Gypsies and other Travellers travel regularly. A range of travelling patterns exists. Frequency of travel ranges from full-time Travellers with no fixed base, to families who live in one place most of the year, but still travel with living vehicles for holidays or family events. Some travel long distances across regions even countries, while some regular travellers never leave a single town. Travelling is part of the cultural heritage of traditional Gypsies and Travellers, and is still culturally important, even for those who no longer actively travel...", "There are some indications that fewer Gypsy/Travellers now travel full-time, and some have ‘settled’ for a combination of reasons related to personal circumstances, greater difficulties in travelling and finding safe places to stop, and a desire for a more comfortable lifestyle and education for children. However it would be unwise to assume that any trend towards greater ‘settlement’ is universal, or unidirectional. Individuals can pass from one pattern of travelling to another in line with family cycle, health and personal circumstances.”", "59. Concerning overall Gypsy/Traveller Accommodation Issues (page 11):", "“In most local authorities Gypsy/Traveller accommodation policies are not well-developed, if they exist at all. ... In part this reflects the lack of a specific duty to consider Gypsy/Traveller needs, and in part a tendency to equate Gypsy/Traveller accommodation with site provision - so an authority without a site has no policy.", "Where policies exist, they are not always comprehensive and integrated...History and individual personalities seem to have an influence on the approach taken locally. Most policies have been developed without input from Gypsies and other Travellers...”", "60. Concerning site dynamics and turnover (pages 28-29):", "“Most residential Gypsy/Traveller sites appear to have a very low turnover, and are stable. Most residents have lived on site for three years or more on 86% of sites. ...While there are exceptions, the general picture built up of residential Gypsy/Traveller sites is that they are stable, with long-term residents who travel little during the course of a year. It may be that, for many residents, the attractions of the site lie in the possibilities of living in a trailer (attractive for cultural reasons and leaving the option of travel open) and of living within a culturally distinct community among friends and family. This is not necessarily the same as meeting the needs of a nomadic or semi-nomadic population. For many residential site residents, nomadism appears to be a spiritual and cultural state of mind, rather than a day-to-day reality.”", "(Page 31):", "“Pitch vacancies on residential sites arise infrequently. Eight out of ten residential sites have a waiting list for places ...”", "61. Concerning licence agreements, rules and enforcement (page 31):", "“Enforcement of licence conditions is an important element in overall site management. The ultimate sanction – very rarely evoked in the case studies - is eviction, but most action occurs well before this stage. ...”", "62. Concerning accommodation for nomadism (page 41):", "“An unknown proportion of Gypsies and other Travellers still actively travel whether throughout the year, seasonally or on special or family occasions. Those who travel throughout the year may have no fixed base at all... There is little formal provision to accommodate Travellers and their trailers while on the road. There are just 300 transit pitches provided on local authority sites. Recent Gypsy counts have shown roughly ten times as many caravans on unauthorised encampments. Even taking into account the unknown number of private transit pitches, it is clear that ‘ nomadism ’ is currently mostly accommodated informally and often – from the viewpoint of both the settled community and Travellers – unsatisfactorily.", "... The need for a range of transit accommodation has been recognised for at least forty years, yet supply is still small and, as this research has shown, actually shrinking...”", "63. Concerning conclusions and recommendations:", "“One of the clearest conclusions from the research is the lack of any clear, widely understood national policy towards accommodation for Gypsies and other Travellers in England, and a general feeling that such a policy is needed....” (page 50)", "“Another very clear conclusion from the research is that Gypsies and other Travellers are often socially excluded and still suffer discrimination in many areas of life. There is a need for a clear central lead to affirm the legitimacy of a nomadic way of life and to challenge racism and discrimination against Gypsies and other Travellers. There is also a need to make Gypsies and other Travellers less ‘invisible’ in policies aimed to help socially and economically disadvantaged groups. ...” (page 51)", "“Another approach worth considering it to bring site provision more closely within mainstream housing. Given the stability discovered on many residential sites, it seems entirely appropriate to see them as a form of specially adapted housing for Gypsies and other Travellers... Housing associations could become involved in site provision and management and the Housing Corporation could provide social housing grant as for other general and special needs housing. Issues around site licensing and model standards, and tenure (whether or not the Mobile Homes Act 1983 might apply) would need to be clarified.” (page 52)", "“Residents of residential Gypsy /Traveller sites are licensees with only basic protection against harassment and illegal eviction. Many Gypsy/Travellers and their supporters argue strongly that this is not appropriate and puts Gypsies and other Travellers at a serious disadvantage relative to social housing tenants and especially secure council tenants. Given the changes in tenancies currently being considered, it might be worth thinking further about the status of site residents...” (page 54)", "5. Report on Local Authority Gypsy/Traveller Sites in England (July 2003)", "64. This report, issued by the Office of the Deputy Prime Minister, provided further information and conclusions of research on the provision and management of local authority gypsy sites carried out by the Centre for Urban and Regional Studies at the University of Birmingham.", "65. In the section “Licence Agreements, Rules and Enforcement” (pp. 118-123), it is stated inter alia :", "“Gypsy/Traveller site pitches are let on a licence rather than a tenancy. This is in itself contentious with some Gypsies and other Travellers and their supporters. As licensees, site residents enjoy less security and fewer rights than council tenants. ...", "The less security is argued to be justified on the grounds that local authority sites need greater flexibility in order to accommodate the nomadic lifestyle of occupiers. This envisages shorter stays, and the possibility of retaining a pitch for seasonal travelling (see Somerset County Council v. Isaacs, 2002). ...", "Opinion is mixed between case study respondents on whether site residents should continue as licensees or have some form of tenancy. Some feel that good site management requires the ability to – occasionally and in extreme situations – step in quickly and get a troublemaker off the site. This recognises that violence, crime or anti-social behaviour can have the effect of very quickly emptying a site of residents (who are mobile and take their homes with them) as well as potentially causing severe physical damage to the site and its facilities. The opportunity for prompt action is essential to safeguard the interests of respectable residents and staff who have to visit the site. They therefore do not want anything which gives greater security of tenure.", "Other local authority respondents argue that licensee status makes Gypsies and other Travellers into second class citizens, and that everything possible should be done to regularise their position alongside tenants in permanent housing. They recognise that most residential sites are now stable and provide long-term accommodation rather than specifically catering for nomadism. They see the advent of introductory tenancies for social housing as a protection against bad behaviour from new residents...", "Residents occasionally express the argument often made by site managers... against increasing security of tenure because of the need for a power to be able to get rid of bad or disruptive residents quickly in order to protect the interests of the other residents and the quality of the site as a whole.", "On the other hand, lack of security means that even long-standing residents are dependent on the continued goodwill of the operator, to an extent that few of them seem to realise. The more settled people become, the more important tenure seems likely to be to them as long-term residents begin to improve and develop their plots, build sheds of their own, and so on. Some may acquire mobile homes rather than caravans which would be difficult to move and re-site. It is generally thought hard to find space on an official site – particularly on a good one as there aren’t many sites and a lot of them are thought to be full. It can seem unreasonable that people should still be on four weeks notice if they have lived 20 or 30 years in one place, behaved well over that time and have invested in developments of their plot or home.”", "66. According to statistics given, evictions in fact occurred on four out of 76 sites during 2000/1 (5%). On three sites there was a single eviction and on one there were three evictions. Reasons seem to have combined both arrears and anti-social behaviour.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "67. Article 8 of the Convention provides as relevant:", "“1. Everyone has the right to respect for his private and family life, his home...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "68. The parties were agreed that Article 8 was applicable in the circumstances of this case and that the eviction of the applicant from the site on which he had lived with his family in his caravans disclosed an interference with his right to respect for his private life, family life and home.", "69. The parties were also agreed, in the context of the second paragraph of Article 8, that the interference was “in accordance with the law” and pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site.", "70. The question remaining for examination by the Court is whether the interference was “necessary in a democratic society” in pursuit of that aim.", "A. Whether the interference was “necessary in a democratic society”", "1. The parties’ submissions", "(a) The applicant", "71. The applicant contended that his eviction from the site interfered unjustifiably with his rights under Article 8 of the Convention, as being unnecessary and disproportionate, in particular as he was not given the opportunity to challenge in a court the allegations made against him and his family. He denied that he or members of his family living on the plot had breached any term of the licence as alleged by Council officers and stated that he had no control over the conduct of visitors to the site, such as his adult sons or Michael Maloney. There was significant support for his family from other occupiers of the site which contradicted the situation as described by the Council. He disputed that it was reasonable or proportionate to evict him and his family for reasons relating to other adults. The Council failed to use other methods to control the alleged misbehaviour, such as injunctions or committal proceedings against those adults who were committing the damage or nuisance and appeared to make no distinction concerning the occupation of the two plots, 35 and 36. Nor when the applicant gave undertakings in court on 14 April 2000 did the Council apply for enforcement measures in respect of alleged breaches.", "72. Contrary to the Government’s assertions, the applicant submitted that he had no means of requiring the Council to substantiate its allegations against him and thereby resisting the revocation of his licence or preventing the eviction. There was extensive dispute as to the facts and allegations which could not be tested in the summary proceedings or in the judicial review proceedings, which preceded the coming into force of the Human Rights Act 1998. No opportunity was given for the submission of evidence, hearing or cross-examination of witnesses on these matters. As a result, there was no meaningful assessment as to whether the measures were proportionate or justified in pursuit of any legitimate aim. Following the Human Rights Act 1998, the cases before the domestic courts showed that they would not apply the Convention in such a manner as to overturn the system of security of tenure provided for in the legislation.", "73. The applicant submitted that, notwithstanding the Government’s explanations about alternative provision, there was no evidence in West Yorkshire of any encouragement for gypsies to purchase and occupy their own private sites. Gypsies in that area who wished security of tenure could not move to privately run sites as there were none. On the contrary there were many examples of enforcement action being taken against gypsies’ occupation of their own land. Nor were there any temporary stopping places with basic facilities as envisaged in Government circulars such as 18/94. Since the repeal of the 1968 Act, there had been a reduction of 27% in local authority site provision for gypsies in Leeds, e.g. from 56 plots to 41. The applicant denied that he was advocating a single statutory framework for all sites, arguing that a particular need for flexibility in gypsy provision could be reflected in grounds available for possession (for example, unmaintained caravans, absence exceeding a particular period), but not by ignoring the need to prove disputed facts. Different regimes should not necessitate that gypsies on local authority sites lose the benefit of court protection to test, for example, an alleged breach of licence. As a Council tenant faced with an allegation of anti-social behaviour could argue his/her case in court, he saw no reason why a gypsy facing such allegations should not be able to do so.", "74. As regarded the Government’s policy arguments, he referred to the October 2002 report (paragraphs 55-63 above), which noted that there was in fact no clear national policy on accommodation for gypsies and that the majority of occupants of local authority gypsy sites lived a largely sedentary life, with a very low turnover of vacancies on such sites. In those circumstances, it was not the case that these sites were needed, or used, for the minority of gypsies who followed a substantially nomadic lifestyle and it was appropriate to bring site provision more closely within mainstream housing as a form of specially adapted housing for gypsies. It would be possible to safeguard the interests of the persons of nomadic habit by designating certain pitches for “transit” while at the same time conferring security of tenure on the majority of the residents of local authority gypsy sites. Similar exceptions for special purposes occurred in the Housing Act 1985.", "75. The applicant argued that difficulties of proving anti-social behaviour existed equally on other mobile home sites, including privately run gypsy sites, and on housing estates, to which security of tenure did apply. He saw no reason why, if it was reasonable and workable for owners of privately run sites and housing associations and local authority landlords of housing tenants to prove allegations, local authorities who ran gypsy sites could not be required to the do the same. He noted that ample powers were available to a court to deal as a matter of urgency with troublemakers, including the power to grant interim injunctions and the powers under the Anti-social Behaviour Act 2003 which did not require the attendance of witnesses in court. He also disputed that the regime as it existed brought any financial benefit to gypsies through low costs as the cost of a pitch was variable, the average being much the same as rent for a Council house and in his case being almost double.", "76. Furthermore, the applicant submitted that in his case, which concerned interference with an important right rendering his family homeless with loss of effective access to education and health services, the margin of appreciation should be narrow rather than wide. He considered that his case could be distinguished from Chapman v. the United Kingdom, ([GC] no. 27138/95, ECHR 2001-I, § 92), relied on by the Government, as that concerned a local planning decision grounded in local knowledge and understanding of local conditions whereas his case concerned assessment of a general policy at national level.", "(b) The Government", "77. The Government submitted the interference was justified as necessary in a democratic society and was proportionate to its objectives. The applicant had agreed to occupy the plot on the terms that neither he, his family nor guests would cause a nuisance and he had been warned by the Council that he was in breach. In the circumstances, the Council was entitled to revoke the licence. Similar terms would have applied to a secure housing tenant. Though the licence did not require the Council to give the applicant the opportunity to challenge the allegations of nuisance made against him, it was a public authority obliged to act lawfully, reasonably, fairly and for the proper purposes for which its powers were conferred. Its decisions were therefore amenable to judicial review and the applicant, who was legally represented, was able to challenge the decision in judicial review proceedings where the High Court found no evidence to doubt the reasonableness and procedural fairness of the Council’s decision. The Council had also taken into account the needs of the applicant and his family in the decision-making process. If there had been no proper basis for the eviction or the applicant had mounted a substantial factual challenge to the asserted justification, the domestic courts would have been able, through their scrutiny, to provide a remedy against arbitrary action. There was however no substantial dispute as to the primary facts as the applicant did not appear to deny that his sons and guests were causing a nuisance. This procedure therefore provided the applicant with a series of important safeguards. In addition to the remedy of judicial review, occupiers had, since 2000, a right of action under the Human Rights Act 1998, pursuant to which the courts can consider directly claims of violation of the Convention (see, for example, Somerset County Council v. Isaacs, paragraphs 47-50 above).", "78. While they accepted that the statutory protection from eviction which the applicant enjoyed in respect of the plot was more limited than if his caravan had been on a site other than one provided by a local authority for gypsy accommodation, the Government emphasised that statutory regulation of housing was a matter of some complexity and within the area in which courts should defer to the decision of the democratically elected legislature. A wide margin of appreciation applied equally to this situation as it did in the planning context (see Chapman v. the United Kingdom, cited above, § 92). They argued that the limited degree of protection was justified with regard to the differing aims of the statutory schemes concerned. Regarding the provision for gypsies, it had to be recalled that the 1968 Act had sought to remedy the grave shortage of sites for gypsies who led a nomadic lifestyle by placing a duty on local authorities to provide such sites. By 1994, the Act was found to have served its purpose as far as it could reasonably be expected to, with local authority sites providing the largest contribution to the overall accommodation needs of gypsies. Policy then changed its emphasis to encouraging gypsies to promote their own sites via the planning process. The authorities were keeping the situation under review, as seen in the independent reports issued in October 2002 and July 2003, which did not reveal that the exemption posed any problems in practice in the operation of local authority gypsy sites. It was apparent in the latter report that local authorities used their powers of eviction sparingly and as a sanction of last resort. It remained however an important management tool.", "79. Notwithstanding shifts in gypsy habits, the existing local authority supply of sites remained an essential component of the Government’s strategy of ensuring an adequate level of provision for gypsies and the policy of the legislation was to maintain and safeguard that distinct supply. Thus the special regime of tenure applicable to local authority gypsy sites reflected the need to ensure that local authorities were able to operate their gypsy sites in a flexible way that met the special accommodation needs of gypsies consistent with their nomadic lifestyle. To require local authorities to justify in court their management decisions in relation to individual occupiers would add significantly to their administrative burden, increasing costs and licence fees and would reduce the flexibility intended by the framework. The domestic courts examining the cases of Isaacs and Smith concluded, in light of the evidence submitted, that there remained objective justification for current legislative arrangements on local authority gypsy sites (see paragraphs 47-53 above). The issues raised in the recent reports were now the subject of a thorough Government review of policy, which would include the existing regime of tenure on local authority gypsy sites and examine all the competing interests. It was not the case that the reports established that this regime was currently unjustifiable or that there was a readily identifiable and workable alternative regime of greater security of tenure that would overcome the applicant’s complaints in this case.", "80. The Government further explained that the policy and object of the mobile homes legislation was to remedy a different problem, namely, the inequality of bargaining power between the mobile home owner and the site owner, in which area there was a deficiency of supply over demand which the private sites, run as businesses, were in a position to exploit, by for example compelling a resident to buy his mobile home from the site owner and then evicting him and forcing him to sell the home back at a significant undervalue. The 1983 Act was designed specifically to remedy such abuses by giving residents of such sites stronger security of tenure. On the other hand, the regime applicable to local authority gypsy sites enabled disruptive occupiers to be dealt with quickly, preventing damage to the site and forestalling the tendency of the other occupiers to leave to avoid the problem. There was the practical advantage that this avoided the need to produce witnesses, there being a reported reluctance for other occupiers to get involved or “inform” on rule-breakers.", "2. The Court’s assessment", "(a) General principles", "81. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI).", "82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52; Gillow v. the United Kingdom, judgment of 24 November 1986, Series A, no. 104, § 55). On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation ( Buckley v. the United Kingdom, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1292, § 75 in fine ). The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 27, § 45, Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V, § 49 ). It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, mutatis mutandis, Gillow v. the United Kingdom, cited above, § 55; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III; Christine Goodwin v. the United Kingdom, no. 28957/95, § 90, ECHR 2002-VI). Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant ( Hatton and others v. the United Kingdom, [GC] no. 36022/97, ECHR 2003-..., §§ 103 and 123).", "83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, Chapman v. the United Kingdom [GC], no. 27138/95, ECHR 2001-I, § 92).", "84. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( Buckley judgment cited above, pp. 1292-95, §§ 76, 80 and 84). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see Chapman, cited above, § 96 and the authorities cited, mutatis mutandis, therein).", "(b) Application in the present case", "85. The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children’s education. The family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entails. The Council, and the Government in these proceedings, took the view that the eviction was justified by a breach of the licence conditions, the applicant being responsible for causing nuisance on the site. The applicant contested that he was at fault. It is not for the Court however to assess in retrospect whose version of events was correct as the Council in evicting the applicant relied instead on the power to give 28 days notice to obtain summary possession without proving any breach of licence. While it was variously alleged by Council officers that the applicant’s licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights.", "86. The serious interference with the applicant’s rights under Article 8 requires, in the Court’s opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case (cited above), in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family.", "87. The Government have argued, firstly, that there is a need to exempt local authority gypsy sites from security of tenure provisions that apply in other areas of accommodation. Government policy sought to cater for the special needs of gypsies who live a nomadic lifestyle and this, they emphasised, required flexibility in the management of local authority sites. They argued, secondly, that the power to evict summarily was a vital management tool in coping with anti-social behaviour as without speedily removing troublemakers the other gypsy families would tend to abandon the site rather than assisting the local authority by “informing” on others and giving evidence in formal court procedures. As a subsidiary argument, they submitted that the additional costs of court procedures could increase the fees applicable to gypsy sites and thus act to the overall detriment of the gypsy population as a whole.", "88. As regards the nomadism argument, the Court notes that it no longer appears to be the case that local authority gypsy sites cater for a transient population. The October 2002 report (see paragraphs 55-63 above) indicates, as has been apparent from the series of cases brought to Strasbourg over the last two decades, that a substantial majority of gypsies no longer travel for any material period. Most local authority sites are residential in character. On 86% the residents have been in occupation for three years or more and there is a very low turnover of vacancies. Of an estimated 5,000 pitches, only 300 are allocated as transit pitches. It is not apparent that it can be realistically claimed that the majority of local authority sites have to provide, or aim to provide, a regular turnover of vacancies to accommodate gypsies who are travelling round or through the area. The Court is not persuaded therefore that the claimed flexibility is related in any substantial way to catering for an unspecified minority of gypsies who remain ‘nomadic’ and for whom a minimum of transit pitches have to be made available. It appears that there are in fact specific sites designated as “transit” sites and that these are distinguished from the vast majority of other local authority gypsy sites. The material before the Court certainly does not indicate that eviction by summary procedure is used as a means of maintaining a turnover of vacant pitches or of preventing families from becoming long-term occupants.", "89. As regards the use of summary eviction as a tool in controlling anti-social behaviour, the Court would note that the 2003 report indicates that it is in fact only rarely used – on 5% of sites – and that some local authorities considered that the licence status of gypsies made them second-class citizens and would prefer to regularise their position to bring them into line with other forms of social housing (see paragraphs 64-66). The mere fact that anti-social behaviour occurs on local authority gypsy sites cannot, in itself, justify a summary power of eviction, since such problems also occur on local authority housing estates and other mobile home sites and in those cases the authorities make use of a different range of powers and may only proceed to evict subject to independent court review of the justification for the measure. Notwithstanding the assertion that gypsy attitudes to authority would make court proceedings impractical, it may be noted that security of tenure protection covers privately run gypsy sites to which the same considerations would appear also to apply. Consequently the Court is not persuaded there is any particular feature about local authority gypsy sites which would render their management unworkable if they were required to establish reasons for evicting long-standing occupants. Nor does it find any indication that the gypsies would lose the advantage of low financial costs attaching to local authority sites. According to the submissions of the applicant, which were not contested by the Government, local authority gypsy sites do not benefit from particularly low licence fees and in his case he had to pay double the rate of a local authority housing tenancy.", "90. Nor does the gypsy population gain any benefit from the special regime through any corresponding duty on the local authority to ensure that there is a sufficient provision for them (see P. v. the United Kingdom, no. 14751/89, decision on admissibility of 12 December 1990, Decisions and Reports 67, p. 264, concerning the regime applicable before the repeal of section 6 of the Caravan Sites Act 1968 and paragraphs 35-36 above). The October 2002 report noted that 70% of local authorities did not have any written gypsy/traveller accommodation policy and commented that this reflected the lack of a specific duty on local authorities to consider their needs (paragraph 58 above). Since the 1994 Act came into force, there has been only a small net increase in the number of local authority pitches. The case of Chapman, together with the four other applications by gypsies decided by the Grand Chamber ( Beard v. the United Kingdom, no. 24882/94, Coster v. the United Kingdom no. 24876/94, Jane Smith v. the United Kingdom, no. 25154/94, and Lee v. the United Kingdom, no. 25289/94, judgments of 18 January 2001), also demonstrate that there are no special allowances made for gypsies in the planning criteria applied by local authorities to applications for permission to station of caravans on private sites.", "91. The Government have pointed out that the domestic courts, since the entry into force of the Human Rights Act 1998, have examined the Convention issues in similar cases and found no violations of Articles 14 or 8. The Court notes that the High Court has reviewed the lack of security of tenure of gypsies on local authority sites in a number of cases. There is force in the Government’s argument that some weight should be attached to the views of national judges who are in principle better placed than an international one to assess the requirements of the society because of their direct and continuous links with that society. However, in Isaacs, the judge commented that he was not over-impressed by the vagueness of ‘experience’ relied on by the Government in justifying the necessity of the regime (see paragraph 50 above), while in Smith, the judge implied that he would have no difficulty in concluding that there were a substantial majority of gypsies who were no longer nomadic whose position could immediately be safeguarded by some new legislation (paragraph 53 above). The Court would observe that the domestic courts stopped short of finding any breach of the provisions of the Convention, having regard inter alia to the perceived existence of safeguards that diminished the impact on the individual gypsy’s rights and to a judicial reluctance to trespass on the legislative function in seeking to resolve the complex issues to which no straightforward answer was possible. The domestic courts’ position cannot therefore be analysed as providing strong support for the justification of continuing the current regime.", "92. The existence of other procedural safeguards is however a crucial consideration in this Court’s assessment of the proportionality of the interference. The Government have relied on the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the Council’s decisions. It would also be possible to challenge the Council for any failure to take into account in its decision-making relevant matters such as duties towards children (see paragraph 42 above). The Court would recall that the applicant sought permission to apply for judicial review and that permission was refused. In the applicant’s case, his principal objection was based not on any lack of compliance by the Council with its duties or on any failure to act lawfully but on the fact that he and the members of the family living with him on the plot were not responsible for any nuisance and could not be held responsible for the nuisance caused by others who visited the site. Whether or not he would have succeeded in that argument, a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court’s attention to the Court of Appeal’s decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law.", "93. The Court would not under-estimate the difficulties of the task facing the authorities in finding workable accommodation solutions for the gypsy and traveller population and accepts that this is an area in which national authorities enjoy a margin of appreciation in adopting and pursuing their social and housing policies. The complexity of the situation has, if anything, been enhanced by the apparent shift in habit in the gypsy population which remains nomadic in spirit if not in actual or constant practice. The authorities are being required to give special consideration to a sector of the population which is no longer easy to define in terms of the nomadism which is the raison d’être of that special treatment.", "94. However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to “flexibility” or “administrative burden” have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid (see, mutatis mutandis, Larkos v. Cyprus, [GC], no. 29515/95, ECHR 1999-I, where in finding a violation of Article 14 in conjunction with Article 8 concerning the difference in security of tenure provisions applying between tenants of public and private housing, the Court did not find that the difference in treatment could be justified by the argument that giving the applicant the right to remain indefinitely in a State-owned dwelling would fetter the authorities’ duty to administer State-owned property in accordance with constitutional and legal requirements). It would rather appear that the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursuing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle.", "95. In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "96. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "97. The Court has found above a violation of Article 8 of the Convention. No separate issue arising under Article 14 of the Convention, the Court finds it unnecessary to consider this complaint further.", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1", "98. Article 1 of Protocol No. 1 provides as relevant:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "99. The applicant complained that during the eviction the Council interfered with his personal property by removing essential possessions from the pitch and retaining various items. They failed to return the property promptly and, when they did, dumped it on the roadside.", "100. The Court notes that the applicant does not allege that possessions were damaged or lost or that the actions of the Council were unlawful, in which latter case it would have been possible to take action in the courts. To the extent therefore that the removal of the property was a consequential element of the eviction of the applicant and his family from the local authority site, the Court does not find that it raises any separate issues from those considered under Article 8 above and thus finds it unnecessary to examine the complaint further.", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "101. Article 6 § 1 of the Convention provides as relevant:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "102. The applicant complained under Article 6 that he was unable in the summary possession proceedings to challenge the Council’s allegations of nuisance whether by giving evidence himself or calling witnesses. The applicant was at a substantial disadvantage given the terms of the licence, in respect of which he had not been in a free bargaining position. There was no equality of arms and he was denied any effective access to court against the very serious interference with his home and family.", "103. The Court considers that the essence of this complaint, that his eviction was not attended by sufficient procedural safeguards, has been examined under Article 8 above and may be regarded, in the present case, as absorbed by the latter provision. No separate issue therefore arises for determination.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "104. Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "105. The applicant submitted that he had no possibility of obtaining a determination in court of the disputed facts and allegations relied on by the Council in determining his licence. Judicial review did not provide an effective method of challenging the Council’s actions as it did not involve testing of the evidence, while in the summary proceedings the judge had no discretion to investigate the matters but was required to order possession under the terms of Order 24.", "106. The Government did not consider that any issue arose, in particular as no arguable claim of a violation was disclosed for the purposes of Article 13 of the Convention. In any event, the applicant could challenge the reasonableness of the Council’s actions in judicial review proceedings and require the Council to show in the County Court that they had lawfully determined the licence. The applicant could also have taken action against any individual officer who had acted unlawfully and the law of tort was available to remedy any unlawful interference with his property.", "B. The Court’s assessment", "107. According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).", "108. The Court has found above that there has been a violation of Article 8. An “arguable claim” therefore arises for the purposes of Article 13.", "109. However, the Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see James and others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 85; A. v. the United Kingdom, no. 35373/97, ECHR 2002-X, §§ 112-113). The applicant’s complaints related in essence to the exemption conferred on local authority gypsy sites by the Mobile Homes Act 1983.", "110. The Court thus concludes that the facts of the present case disclose no violation of Article 13 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "111. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. The parties’ submissions", "112. The applicant claimed damages in respect of distress and suffering experienced by himself and his family as a result of the eviction proceedings and for the ongoing loss of access to educational facilities, recreational facilities, medical and health services and basic sanitation and refuse disposal occasioned by the eviction. He pointed out that the Cottingley Springs site was the centre of their community and that he had known the people there all their lives. The way in which the eviction was enforced, involving several hours’ detention, caused him significant pain and stress and the applicant and his family had serious difficulties in finding places to station their caravans afterwards, repeatedly being threatened with eviction and being moved on. The stress and uncertainty contributed to the applicant’s wife’s decision to move into a house, thereby causing their separation in May 2001 and a loss of daily contact with his children, who have also had their education disrupted. The applicant claimed that a sum in the range of GBP 100,000 would be appropriate.", "113. The Government submitted that the applicant’s central complaint was the lack of any power in the County Court to adjudicate on disputed facts and protect him from eviction save on reasonable grounds. If such adjudication had occurred, it was more than likely, in view of the acknowledged nuisance caused by the applicant’s visitors, that the County Court would have ordered the eviction anyway and the consequences would have been the same. In their view a finding of violation would provide sufficient just satisfaction, though if the Court considered a monetary award was merited, they considered such should be not more than 5,000 euros (EUR).", "2. The Court’s assessment", "114. The Court notes that it is not possible to speculate as to what would have been the outcome if a form of security of tenure had applied to the applicant’s occupation of a pitch at the Cottingley Springs site. Nonetheless, the applicant was denied the opportunity to obtain a ruling on the merits of his claims that the eviction was unreasonable or unjustified. In addition, he suffered non-pecuniary damage through feelings of frustration and injustice. The Court thus concludes that the applicant sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention.", "115. Deciding on an equitable basis, it awards the applicant the sum EUR 14,000.", "B. Costs and expenses", "116. The applicant claimed a total of GBP 18,781.96 for legal costs and expenses, including GBP 5,370 for solicitors’ costs (at an hourly rate of GBP 150) and GBP 11,867.51 for counsel’s fees, inclusive of value added tax (VAT).", "117. The Government considered that the solicitor’s hourly rate was excessive and that a rate of GBP 100 would be more appropriate. They did not challenge counsel’s hourly rate of GBP 90 but considered that the number of hours charged (114.5) was excessive bearing in mind the time also spent by solicitors and relative lack of complexity of the legal issues. They proposed that 30 hours for counsel’s time and attention, namely GBP 2,700, would be more reasonable.", "118. The Court observes that counsel entered the application at a relatively late stage, after the case had been declared admissible and in these circumstances seeing some force in the Government’s objection to the amount of hours claimed, has reduced the sum claimed by approximately one quarter. It does not find the sum claimed by the solicitor unreasonable as to hours claimed or quantum overall. In conclusion, taking into account the subject-matter and procedure adopted in this case, together with deduction of the amount of legal aid granted by the Council of Europe, the Court awards, for legal costs and expenses, the sum of EUR 21,643, inclusive of VAT.", "C. Default interest", "119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The relevant background", "1. The applicants’ homes", "6. The applicants are residents of Batalova Vodenitsa, a neighbourhood of Sofia. They describe themselves as being of Roma origin.", "7. Unlike some other European countries, where the Roma often have an itinerant way of life, in Bulgaria, at least since the 1960s, the great majority of the Roma live a settled life. Typically, Bulgarian towns feature one or more predominantly Roma neighbourhoods in non-central areas.", "8. Some of the applicants or their parents and in some cases their grand ‑ parents moved to Batalova Vodenitsa at the end of the 1960s and in the 1970s. Others are more recent arrivals who settled there in the 1990s.", "9. In the 1960s land in the neighbourhood in question was expropriated by the State and cleared in the context of the authorities’ housing construction policy. A number of blocks of flats were constructed there, but the plots currently inhabited by the applicants remained vacant, having been earmarked for a green area, which was never landscaped.", "10. The applicants’ families built their homes on State land without any authorisation. The area thus gradually developed into a small Roma settlement. It appears that between 200 and 300 persons live there.", "11. Most of the buildings are single-storey houses. There is no sewage or plumbing. The inhabitants use water from two public fountains.", "12. Most applicants’ registered addresses are at their homes in Batalova Vodenitsa. Many of them are registered at one and the same address although they live in separate buildings which do not figure on any official area plan. Most of the applicants live in their houses with their families, including young children or grandchildren.", "13. The applicants never sought to regularise the buildings they had constructed. This was in principle possible through applications for building permits and planning approval. According to the applicants, making such applications was difficult for them as they are poor and live their lives in the Roma community, isolated from the rest of society.", "14. It is undisputed by the parties that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and cannot be legalised without substantial reconstruction.", "15. In 1987 the local building plan was amended and the construction of dwellings was envisaged on the plots in question. The plan was never implemented.", "16. Following a legislative reform, in 1996 the land occupied by the applicants became the property of the Sofia municipality.", "17. Until 2005, the State and municipal authorities never took steps to remove the applicants and their families.", "18. Under the relevant law the applicants cannot obtain ownership of the land they occupy. Until 1996 the provisions on acquisitive prescription did not apply in respect of State and municipal land. Since 1996, these provisions, under which a ten-year period of possession may suffice for the acquisition of real property, apply to most categories of municipal land. However, in 2006, shortly before the expiry of ten years after the 1996 amendment, Parliament suspended the running of prescription periods in respect of State and municipal land. The suspension has been extended several times and is currently in force until 31 December 2014 (sections 79 and 86 of the Property Act and the transitional provisions thereto).", "19. According to a statement by a Mr B. T., a Roma resident of Batalova Vodenitsa, his parents are the lawful owners of their house there and possess a notarial deed. A copy of the notarial deed has not been submitted by the applicants. Neither Mr B.T. nor his parents were among the addressees of the removal order of 17 September 2005 (see paragraph 31 below).", "2. Complaints by third persons, public declarations, protests and media coverage", "20. From the beginning of the 1990s tension grew in several regions of Sofia between the inhabitants of Roma settlements and their non-Roma neighbours. The issue of Roma settlements, often referred to as “ghettos”, was widely debated in the media. Many commentators urged the emptying of all “Roma ghettos” in Sofia. This line was supported by a number of leading politicians. Occasionally, the views of Roma organisations were also published.", "21. Between 2003 and 2006 several demonstrations were held by non-Roma residents of different areas in Sofia seeking the eviction of their Roma neighbours. Other demonstrations were held by non-Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods Roma families to be removed from other parts of the city.", "22. It appears that on an unspecified date non-Roma residents of Batalova Vodenitsa formed an association with the aim to bring pressure to bear on the authorities in relation to the applicants’ unlawful settlement.", "23. Most complaints against the Roma inhabitants of Batalova Vodenitsa concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals (allegedly including sheep, pigs, hens and horses). Also, many non-Roma residents of the area believed that the Roma inhabitants were responsible for numerous offences, including physical assault, theft and damage to public and private property. The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area.", "24. The municipal authorities in Sofia perceived as a serious problem the fact that since 1990 many Roma had moved to Sofia and settled in illegal Roma settlements, thus increasing their overpopulation and generating more illegal construction and sanitary problems.", "B. The decision to remove the applicants and the ensuing judicial proceedings", "25. In March 2000 an unspecified number of individuals, apparently persons who had obtained decisions restoring their property rights over expropriated land in the Batalova Vodenitsa area, complained to the Sofia municipal council that “persons of Roma origin” were unlawfully occupying land in the area. Having examined the matter, on 11 December 2000 the municipal council decided to offer the restored owners other municipal land in exchange for their land. It also invited the mayor of Sofia to develop a plan for the resolution of the “problem as a whole”. No such plan appears to have been adopted.", "26. In 2003 the local building plan in Batalova Vodenitsa was modified by the municipal authorities, who planned to develop the area.", "27. On 2 March 2005 the Sofia municipal council approved in principle the transfer of title to plots of land in Batalova Vodenitsa to Mr K., a private investor. The transfer was effected on 16 May 2006. The plots of land in question were adjacent to the land occupied by the applicants. It is unclear whether Mr K. ever realised any development project.", "28. On 29 August 2005 municipal officials visited the Batalova Vodenitsa neighbourhood and issued a document certifying that the applicants and other persons occupied the land.", "29. On 8 September 2005, Ms S., the district mayor, invited all or almost all residents – approximately 180 Roma, including the applicants – to leave their homes within seven days as they were occupying municipal land unlawfully. The text referred to section 65 of the Municipal Property Act and contained a list of the names of its addressees and also a warning that failure to comply would result in removal by the police.", "30. The applicants filed an appeal. On 15 September 2005 municipal officials issued a document certifying that the residents concerned had not left the area.", "31. As a result, on 17 September 2005 the mayor ordered their forcible removal on 27 September 2005. The order listed individually the names of all those concerned. The mayor also stated her intention to secure a decision for the demolition of the applicants’ houses in accordance with the Building Planning Act ( Закон за устройство на територията ).", "32. The applicants asked the Sofia City Court to stay their removal pending the examination of their appeal against the removal order. The court granted their request.", "33. On 28 September 2005 a committee representing the Roma residents of the area signed an agreement with the municipal authorities in Sofia according to which the municipality would offer alternative housing to the persons registered as Batalova Vodenitsa residents, whereupon they would be removed. No action was taken by the municipality in execution of this agreement.", "34. The agreement also provided that the committee of representatives would take measures to improve hygiene in the Roma settlement. They also undertook to organise the removal of unauthorised domestic animals kept by residents and keep better order. According to the Government, the situation did not improve.", "35. In the judicial proceedings against the mayor’s order, on 12 January 2006 the Sofia City Court ruled that the removal order was lawful. The applicants appealed. On 12 June 2006, the Supreme Administrative Court upheld the City Court’s judgment.", "36. The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful. If the applicants considered that they had property rights, it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights. They had not done so. In these circumstances and having regard to section 92 of the Property Act, their houses were owned by the municipality.", "37. The courts also stated that the applicants’ allegations about violations of the Convention and discrimination were groundless.", "38. The courts ignored as irrelevant under domestic law the applicants’ argument that they should not be removed because they had lived in the area for decades with the authorities’ acquiescence, and their arguments based on the principle of proportionality.", "C. Attempt to remove the applicants in 2006", "39. On 21 June 2006, the municipal authorities announced their intention to evict the unlawful residents of Batalova Vodenitsa, including the applicants, by 28 June and to demolish their homes. On 22 June 2006 the district mayor was reported in the press as having stated that the removal order had been issued as a result of numerous complaints by neighbours in relation to the unlawful settlement.", "40. As a result of political pressure, mainly from members of the European Parliament, the authorities did not proceed with the eviction.", "41. In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “from Europe”. Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of Batalova Vodenitsa. In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other people who had been on the waiting list for many years.", "42. On an unspecified date shortly after 12 June 2006, Ms S., the mayor of the relevant district, participated in a televised debate concerning the fate of the Roma settlement in Batalova Vodenitsa. She stated, inter alia, that the Roma inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully. For that reason, she would not offer them the tenancy of municipal dwellings, there being many other families on the waiting list. The district mayor further stated that the agreement of 28 September 2005 between the mayor of Sofia and a committee of representatives of the Roma families “had been concluded in a pre-electoral period” and that she did not consider herself bound by it. She also stated that the removal order had been upheld by the courts and must be enforced; the fact that the persons concerned had nowhere to go was irrelevant. The mayor further stated that she had received complaints by non-Roma inhabitants of the area and was under a duty to act.", "43. Most of the applicants have not tried to make arrangements to find new homes for their families. Between 2004 and 2007 three of the applicants registered at addresses in other areas of Sofia. In 2005 one of the applicants declared an address in the town of Sandanski as her official address. According to these four applicants, although for short periods they lived outside Batalova Vodenitsa, in dwellings occupied by relatives, their only real home had remained Batalova Vodenitsa.", "44. It appears that after June 2006 negotiations continued between the Roma inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants’ position who had been registered as resident in Batalova Vodenitsa before 1996. Non-governmental organisations defending the rights of the Roma and Government representatives also took part.", "45. Information about intentions to resettle the Batalova Vodenitsa unlawful residents have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged. It appears that no viable resettlement plan has ever been elaborated.", "46. In interviews and statements, local officials supported the non-Roma population. In a radio interview in November 2006, the mayor of Ovcha Kupel district in Sofia stated that “the nuisance that a Roma settlement would create [if Roma families were to move into his district] would surpass by far the inconvenience that a refuse tip would create”. He also stated that “Roma families could not expect to live among the citizens as they did not have the necessary culture”.", "D. Attempt to remove the applicants in 2008 and developments since then", "47. On 27 June 2008 the municipal authorities served a notice on the inhabitants of the area, including the applicants, requiring them to leave their houses by 10 July 2008, failing which they would be evicted forcibly on 11 July 2008.", "48. The notice was issued in execution of the removal order of September 2005, which was final and enforceable.", "49. On 8 July 2008 the Court indicated to the Government of Bulgaria, under Rule 39 of the Rules of Court, that the applicants should not be evicted from their houses until 23 July 2008, pending receipt by the Court of detailed information about any arrangements made by the authorities to secure housing for the children, elderly, disabled or otherwise vulnerable individuals to be evicted.", "50. The Government submitted a copy of a statement by Ms S., the district mayor, who indicated that two local social homes could provide five rooms each and that several elderly persons could be housed in a third home. There was no information about any possibility to house families together.", "51. Also, it appears that none of the applicants was willing to be separated from the community and housed in such conditions, not least because it was impossible, according to them, to earn a living outside the community.", "52. On 22 July 2008 Ms S., the district mayor, stated that she had suspended the enforcement of the removal order “pending the resolution of the housing problems of the Batalova Vodenitsa residents”. The order was not quashed.", "53. In the light of this information, the President of the Court’s Fifth Section decided on 23 July 2008 to lift the interim measure of 8 July 2008, specifying that the decision was taken on the assumption that the Court and the applicants would be given sufficient notice of any change in the authorities’ position for consideration to be given to a further measure under Rule 39 of the Rules of Court.", "54. On 23 July 2008 the National Council for Cooperation on Ethnic and Demographic Issues, which includes representatives of non-governmental organisations and is presided over by the Director of the Ethnic and Demographic Matters Directorate at the Council of Ministers, discussed the issue. Representatives of the Sofia municipality were advised to refrain from measures seeking to resolve the problem in Batalova Vodenitsa at the expense of creating tension in other areas. The majority view was that the Roma families living in Batalova Vodenitsa should not be evicted and their homes should not be demolished before a lasting solution was found.", "55. According to a letter from the Director of Ethnic and Demographic Matters, sent in January 2009 in connection with the present application, the Sofia municipality was working on a programme for the revitalisation of Roma neighbourhoods. It was envisaged to construct temporary housing on several municipal plots of land. Partial initial financing of the construction work could be provided by the Government but other sources were needed as well. It was envisaged to encourage the Roma applying for housing to take jobs in the construction work under the relevant social employment schemes. The project’s elaboration, including architectural plans, was allegedly under way. The project concerned Roma families who moved to Batalova Vodenitsa before 1996. Those who settled there more recently had “to return to their previous homes”.", "56. On 12 January 2010, in reply to a letter from residents protesting against the authorities’ failure to evict their Roma neighbours from Batalova Vodenitsa, Ms S., the district mayor, stated that the enforcement of the 2005 eviction order had been postponed under pressure from members of the European Parliament and that the applicants had started proceedings in the European Court of Human Rights. The letter did not mention plans to secure alternative housing for the persons to be evicted.", "57. According to media reports, in May 2010 plans to resettle the inhabitants of Batalova vodenitsa on other State or municipal property were discussed by the municipal authorities.", "58. In their latest submissions of December 2010 the parties have not reported any progress in the realisation of such projects.", "59. According to the applicants, the resettlement plans mentioned by the authorities are nothing more than empty promises.", "E. Other relevant facts", "60. In March 2006 a ten-year National Programme (2005-2015) for the Improvement of the Housing Conditions of Roma in Bulgaria was adopted by the Council of Ministers in the context of the international initiative entitled Decade of Roma Inclusion 2005–2015.", "61. In September 2007, the Sofia municipal council adopted a plan for the implementation of the ten-year national programme in Sofia for the period 2007-2013. The document includes an analysis of the existing situation in respect of housing.", "62. According to this analysis, overpopulated Roma settlements had formed over the years in Sofia and nothing had been done by the authorities in the past to address the ensuing problems. Having always been a marginalised group with minimal resources, the Roma cannot in practice acquire real property. Traditionally they occupy vacant land and construct makeshift huts. Although most of them, being persons in need of housing, meet the relevant criteria for tenancy of municipal housing, this option does not work in practice owing to several factors, including the limited number of available municipal dwellings and unwillingness on the part of many Roma families to resettle in municipal flats. Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses, such as utility bills, and partly by the animosities which often erupt between non-Roma residents of blocks of flats and Roma families moving in.", "63. The ten-year National Programme and the 2007-2013 Sofia plan provide for the following actions, among others: elaborating municipal housing programmes, legalising buildings if they meet the relevant construction standards, constructing sewage and water-supply facilities in Roma neighbourhoods and providing information and assistance to those who apply for municipal housing.", "64. The 2010 Monitoring report on the implementation of the Decade of Roma Inclusion 2005–2015 programme does not mention any progress having been made in respect of Roma housing. The concluding text of the report contains a recommendation to the relevant institutions and stakeholders to make timely use of the possibilities under Article 7(2) of Regulation (EC) No. 1080/2006 on the European Regional Development Fund.", "65. According to media reports, in several regions in Bulgaria construction works are under way for the building of dwellings intended to house Roma who have been removed or are to be removed from land which they occupy unlawfully." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "66. Section 65 of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it. The mayor’s order is amenable to judicial appeal. Its enforcement is effected by the police.", "67. The new paragraph 5 of section 65, added in May 2008, provides that persons occupying municipal real property without a legal basis cannot avail themselves of sections 72-74 of the Property Act, which bestow certain rights on holders of property belonging to another (under certain conditions, the right to reimbursement for improvements, and to withhold the property pending such reimbursement).", "68. According to section 92 of the Property Act, read in conjunction with its other provisions, buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person. Prior to 1996 it was not possible under Bulgarian law to acquire State or municipal property through adverse possession. Since 1996, state and municipal property, if it is of the category of “private state property”, may in principle be acquired by private persons through adverse possession, under a number of conditions. Through a transitory provision introduced in 2006, the running of the ten-year prescription period was suspended and the suspension is still in force.", "69. The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section 45a of the Municipal Property Act. These regulations, which differ from city to city, usually require candidates to have had their registered address in the town for more than five years, to have no real property of their own, and to have resources that do not exceed a certain maximum. Typically the application must be made in writing on a form and be accompanied by a number of documents. The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal. Among the candidates recognised as being in need of housing, homeless persons and those living in dangerous and unhealthy conditions have priority.", "70. In accordance with sections 43 and 45 of the Municipal Property Act, an emergency stock of municipal flats may be used to house for up to two years persons whose dwellings are unsafe as being in danger of collapsing and persons with severe social or health problems.", "71. Under sections 4 and 5 of the Protection against Discrimination Act, in force since 1 January 2004, racially offensive statements may be considered discriminatory. The victim may file a complaint with the Commission for Protection against Discrimination (see, for example, Decision no. 178 of 25 July 2008, where that commission established that the anti-Roma language used in a television broadcast of 24 February 2007 amounted to prohibited discrimination) or bring an action in court. Racially offensive statements may be criminally punishable under Articles 146 and 148 of the Criminal Code. The proceedings must be initiated by the victim. Separately, incitement to racial hatred is an offence punishable under Article 162 of the Criminal Code.", "72. At the time when the removal order of 17 September 2005 was issued and reviewed by the domestic courts, Bulgarian administrative procedure law did not enshrine the principle of proportionality. Since July 2006, when the Code of Administrative Procedure entered into force, this principle is set out in Article 6 of the Code.", "III. RELEVANT INTERNATIONAL MATERIAL", "A. The Council of Europe", "73. On 18 October 2006 the Council of Europe’s European Committee of Social Rights delivered a decision on the merits of a complaint against Bulgaria brought by the European Roma Rights centre, a non-governmental organisation. The Committee found, inter alia, that “the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute[d] a violation of Article 16 of the Revised European Social Charter, taken together with Article E”. Article 16 concerns the right of families to “appropriate social, legal and economic protection” and Article E prohibits discrimination in the enjoyment of the rights set forth in the Charter.", "74. To reach its conclusion, the Committee found that the Bulgarian legislation allowing the legalisation of illegal constructions set conditions “too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families”, a situation recognised by the Bulgarian Government. The Committee also considered that the authorities had tolerated the unlawful Roma settlements for long periods and were accordingly obliged to carefully balance town planning measures against “the right to housing and its corollary of not making individual[s] homeless”. The Committee further found that by failing to take into consideration the specificity of the living conditions of Roma and strictly applying the rules on legalisation of buildings to them, Bulgaria had discriminated against Roma families, whose situation differed not least as a consequence of State non-intervention over a certain period. Similarly, there was discrimination on account of the authorities’ failure to take into account that Roma families ran a higher risk of eviction, and the authorities’ failure systematically to find alternative accommodation for the evicted families.", "75. On 5 September 2007 the Committee of Ministers of the Council of Europe adopted a resolution in the case in which it noted, inter alia, the Bulgarian delegation’s statement before it that Bulgaria intended to amend the Territorial Planning Act to allow for easier legalising of existing buildings and construction of social housing.", "76. In its 2005 Recommendation on improving the housing conditions of Roma the Committee of Ministers of the Council of Europe called upon member States, inter alia, to use proportionate response to illegal Roma settlements and seek, where possible, solutions acceptable for all parties. Also, eviction measures should include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures. As to daily life in existing settlements, the authorities should provide the same level of services as to other groups of the population and should, beyond that, promote better management including adequate management of neighbourhood conflicts. Housing policies should be tailored to the specific situations of the Roma communities.", "77. In its 2008 Recommendation on policies for Roma and/or Travellers in Europe, the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on Roma.", "78. In its Resolution 1740(2010) on the situation of Roma in Europe and relevant activities of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted with concern that the process of Roma integration in Europe had not reached its objectives over the last twenty years, that Roma people were still regularly victims of intolerance, discrimination and rejection based on deep-seated prejudices and that the situation of Roma with regard to education, employment, housing, health care and political participation was far from satisfactory. The Assembly stated that adopting national strategies was insufficient in the absence of implementation measures at local and regional levels. It urged member States, inter alia, to promote a positive image of diversity, address stereotypes and prejudices, react strongly to racist discourse by public officials and tackle hate speech vis-à-vis Roma, be it in the media, politics or in civil society. As regards housing, the Assembly urged member States to take urgent measures to prevent forced evictions of Roma camps and settlements and – in cases of unavoidable evictions – ensure that such evictions were carried out only when all procedural protections required under international human rights law were in place, including the provision of adequate alternative housing and compensation for expropriation and losses of moveable possessions damaged in the process of eviction and, in the absence of such procedural protections in the existing domestic law, introduce legislation on evictions providing safeguards and remedies in accordance with international standards.", "79. The Council of Europe’s Commissioner for Human Rights, in his 2009 Recommendation on the implementation of the right to housing stated, inter alia, that States should specify in legislation that positive measures are justified in order to promote full and effective equality provided that there was an objective and reasonable justification for such measures.", "B. The European Union", "80. In October 2009 the EU Agency for Fundamental Rights issued a comparative report on the housing conditions of Roma and travellers in the EU.", "81. According to the report, significant numbers of Roma in Europe live in unauthorised settlements. For example, in 2002 an estimated 70% of houses in urban Romani developments in Bulgaria were illegally built, in 1999 in Greece approximately 63,000 Roma lived in unregulated encampments and in 2008 in France most Roma groups lived in squalid shantytowns.", "82. The report also mentioned cases of forced evictions of such encampments, in particular in Italy and Greece.", "C. The United Nations Organisation", "83. The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment no. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights, stated, inter alia, that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions, such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, utilising all available resources, to ensure the provision of adequate alternative housing.", "THE LAW", "I. ALLEGED VIOLATIONS OF THE CONVENTION IN THE EVENT OF ENFORCEMENT OF THE ORDER OF 17 SEPTEMBER 2005", "84. The applicants alleged that if the order of 17 September 2005 was enforced and they were removed from their homes in Batalova Vodenitsa, that would amount to inhuman and degrading treatment contrary to Article 3 and violate their right to respect for their homes under Article 8. They further complained, relying on Article 13, that the authorities failed to consider proportionality issues and, relying on Article 14, that their removal would be discriminatory. They also complained that Article 1 of Protocol No. 1 would be violated.", "A. The parties’ submissions", "1. The applicants", "85. The applicants submitted that the houses where they lived and had their registered address were their homes regardless of the fact that they had not been built lawfully. Nothing had been done for decades to remove the applicants. For people as desperately poor and outcast as them the expectation that the inactivity would last was a basis to build lives on. The applicants had the right to respect for their homes and deprivation of one’s home was a most extreme form of interference with this right.", "86. The applicants considered that the real aim pursued by the authorities was to free the terrain so that it could be leased or sold to a private entrepreneur for development and to “rid” the district of an unwanted Roma “ghetto”. Those were illegitimate aims.", "87. In the applicants’ view, the Government’s attempt to use the neighbours’ protests to justify the eviction order was based on the fallacious assumption that the disorder and lack of sanitation complained of could not be remedied as long as the applicants’ community was present. This was to assume that a Roma community such as the applicants’ inherently produced disorder and pollution and could not be controlled by ordinary policing. The racist nature of this assumption which underlay the Government’s argument was evident. While the issues raised in complaints by ethnic Bulgarian neighbours were serious and a cause for concern, it was unacceptable to seek to solve them through collective expulsion, without regard to individual conduct. That would be nothing less than collective punishment on the basis of ethnic origin.", "88. The applicants stated that the authorities had never considered the applicants’ personal circumstances, never consulted them before issuing a removal order and never considered proportionality even in theory. On the contrary, the authorities had openly and publicly asserted that the applicants had no rights at all and that it had been necessary to defend the rights of the non-Roma inhabitants who wished to have the “ghetto” removed. On two occasions, in 2006 and in 2008, the authorities had sought to evict the applicants, despite the September 2005 agreement under which they had undertaken to provide shelter to the families concerned. That agreement had always remained a dead letter. The history of the problem and the authorities’ actions since 2005 had shown beyond doubt that the majority public opinion and the authorities were in favour of eviction, and that talk about a consensus towards helping the Roma families concerned was without substance.", "89. The applicants protested against the Government’s reliance on private complaints in terms that disclosed clear racist prejudice, presenting the problems in the neighbourhood as rooted in the racial opposition between Roma and Bulgarians and seeking the unconditional “return of the Roma to their native places”. Moreover, in the applicants’ view, the Government’s submissions (see paragraphs 92-99 below) were replete with statements disclosing racial prejudice, such as their admission that the authorities sought to avoid “concentration of large groups of Roma population”, as if Roma people were a pest of sorts which needed to be kept to a minimum. The Government assumed gratuitously that Roma people had fraudulently taken advantage of municipal housing, or would do so. They relied on racist initiatives such as a petition condemning “discrimination against the Bulgarians”. The Government’s appeal to the Court to bow to majority public opinion, which was in favour of evicting the applicants, not only conflicted with fundamental human rights principles but also showed that the Bulgarian authorities were sensitive to, if not supportive of, public prejudice against the Roma.", "90. In the applicants’ view, the Government’s argument that demolition of illegal constructions happened everywhere in Bulgaria, regardless of ethnic origin, was not convincing. The examples given by the Government concerned business properties or holiday retreats owned by persons far wealthier than the applicants, not poor persons’ only homes. The relevant question was whether the authorities would order the collective eviction of a non-Roma community of two hundred persons, including children, without compensation and without alternative shelter, leaving them on the street. In the applicants’ view, it was inconceivable that this should happen. The manner in which the applicants were being treated was clearly linked to their ethnic origin.", "91. Lastly, the applicants stated that the houses they had built and their belongings were “possessions” within the meaning of Article 1 of Protocol No. 1 despite the fact that they did not own the land.", "2. The Government", "92. The Government submitted that while for many years nothing had been done to remove the Roma families who started settling in Batalova Vodenitsa towards the end of the 1960s, it had always been clear that they were occupying State and municipal land unlawfully. They did not own the land and could not claim ownership on the basis of the fact that they had built makeshift houses without authorisation and in violation of building rules. The applicants could not claim, therefore, that they had an expectation to be allowed to remain in Batalova Vodenitsa. For long periods the authorities had not implemented the urbanisation plans for the area, other matters having had priority. This delay did not mean that the applicants’ illegal presence was tolerated.", "93. The matter had become urgent when citizens living in the neighbourhood had started complaining about the Roma families’ behaviour. In support of the above, the Government submitted copies of handwritten complaints by non-Roma residents of Batalova Vodenitsa. Most of them were addressed personally to the Government’s agent in the proceedings before the Court and were apparently drafted for the purposes of the present proceedings on unspecified dates at the end of 2008 or the beginning of 2009. They were entitled “complaints by the Bulgarians living in Batalova Vodenitsa” and started with the following words: “We complain against the Roma ...”. The grievances made were that the Roma disposed of their waste in various places, thus littering the area, kept animals, dried their laundry by hanging it out for everyone to see, engaged in stealing and disorderly and aggressive behaviour, drank and used drugs. According to the text of the complaints, the signatories appealed to have the Roma removed and “returned to their native places”, although on visual examination of the copies submitted to the Court it appears that these last words may have been added by the author of the main text, either before or after the text had been signed by the signatories.", "94. The Government further maintained that the relevant authorities had established that the applicants’ makeshift buildings posed a sanitary risk, might collapse and did not meet fire safety requirements. Having considered the matter, the Sofia municipality had decided to remove the Roma settlement and go ahead with the plans to construct blocks of flats in the area. Referring to the Court’s judgment in the case of Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII, the Government considered that had the Bulgarian authorities remained inactive in the face of the safety and sanitary risks that the applicants’ settlement represented, they would have risked liability under the Convention for failure to discharge their positive obligation to protect life and health.", "95. The Government further stated that problems in the integration of the Roma population were not uncommon and Bulgaria was not alone in this respect. The authorities had demonstrated their determination to secure equal rights for all citizens, irrespective of their origin. The National Council for Cooperation on Ethnic and Demographic Issues, which included representatives of non-governmental organisations and was presided over by the Director of Ethnic and Demographic Matters at the Council of Ministers, had dealt with the problems in Batalova Vodenitsa. Detailed plans to help Roma families find housing and jobs existed and were in the process of implementation in many towns in the country, including districts of Sofia. A relevant example was the creation in June 2008 of a special working group at the Sofia municipality to deal with the demolition of social dormitory buildings in another area, known as Selishte na Stroitelia and Vietnamski Obshtezhitia. The buildings had been damaged by their lawful and unlawful occupants, predominantly of Roma origin, and the working group was seeking possibilities of finding housing for them in separate districts of Sofia, “in order to avoid large concentrations of Roma people”.", "96. The Government thus stated that the relevant authorities were working to find a lasting solution to the housing problem of the Roma families concerned before reclaiming the municipal land they occupied in Batalova Vodenitsa.", "97. The Government also submitted that the decision to remove the applicants’ houses was motivated solely by the need to enforce the law on illegal constructions and put an end to a situation which posed a sanitary risk and disfigured the city landscape. The authorities in any European capital would do as much. The applicants were not entitled to privileged treatment because of their ethnic origin or traditional lifestyle. They were not being treated in a discriminatory manner, measures against illegal occupation being undertaken regardless of the ethnicity of the persons concerned. The Government submitted information about orders for the demolition of illegal constructions in different parts of the country. Moreover, in their view, the one-sided presentation of the problems of the Roma population in Bulgaria by their self-appointed representatives seeking popularity stirred tension and provoked reactions from other ethnic groups. The Government were against such attempts to incite ethnic hatred. The reality was that there were two sides in the dispute: the lawful residents of the neighbourhood and the applicants, who occupied municipal land without title and “whose way of life is in contradiction with public norms and rules and in this sense generates tensions in society”.", "98. The Government also appealed to the Court to take into account, in deciding the case, the reaction a finding of a violation of the Convention would prompt in Bulgarian society, precisely because Bulgarian society expected to see the law applied equally to persons from all ethnic groups.", "99. Lastly, noting that for short periods four of the applicants had registered at addresses outside Batalova Vodenitsa, the Government submitted that such changes could also be observed in respect of other Roma inhabitants. Therefore, in the Government’s view, the supposition could be made that some of the persons concerned had “acquired flats”, sold them and then again registered in Batalova Vodenitsa with the aim of obtaining municipal flats.", "B. The Court’s assessment", "100. Considering that the central issues in the present case concern the applicants’ rights under Articles 8 and 14 of the Convention, the Court will examine these complaints first.", "1. Article 8 of the Convention", "101. This provision reads, in so far as relevant:", "“1. Everyone has the right to respect for his private and family life, his home ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "(a) Whether the enforcement of the removal order would interfere with rights protected by Article 8", "102. It is undisputed that the applicants and their families have lived for many years in the makeshift houses they or their ancestors built on State or municipal land in Batalova Vodenitsa. While for unspecified limited periods four of the applicants had their registered addresses outside that area, it is not disputed that they returned (see paragraphs 8, 12, 17, 43 and 99 above). The Government’s suggestion that some of the Roma living in the area may have registered there with the aim of obtaining municipal flats is not supported by any evidence.", "103. In these circumstances, the applicants’ houses in Batalova Vodenitsa are their “homes” within the meaning of Article 8. This classification is a matter of fact independent of the question of the lawfulness of the occupation under domestic law (see McCann v. the United Kingdom, no. 19009/04, § 46, 13 May 2008). It follows that the applicants’ complaints concern their right under Article 8 to respect for their homes.", "104. There is no doubt that the 2005 removal order, if enforced, would result in the applicants’ losing their homes and that, therefore, there would be an interference with their right to respect for their homes (see Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009).", "105. Having regard to the fact that the case concerns the expulsion of the applicants as part of a community of several hundred persons and that this measure could have repercussions on the applicants’ lifestyle and social and family ties, it may be considered that the interference would affect not only their “homes”, but also their “private and family life” (see, similarly, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001 ‑ I).", "106. The Court must examine, therefore, whether such interference, if it materialises, would be lawful and necessary in a democratic society for the achievement of one or several of the legitimate aims set out in paragraph 2 of Article 8.", "(b) Lawfulness", "107. The Court is satisfied that the impugned removal order has a valid legal basis in domestic law (see paragraphs 29 and 66 above).", "108. The question whether the applicable domestic legal framework and procedures meet the relevant Convention requirements appears to be in dispute. The Court will examine it below in the context of the question whether the interference, if it materialises, would be justified under Article 8 § 2.", "(c) Legitimate aim", "109. The applicants alleged in essence that the removal order did not pursue a legitimate aim but was intended to benefit a private entrepreneur and to satisfy racist demands to free the area of an unwanted Roma settlement. The Government’s position was that the aim of the measure was to recover illegally occupied municipal land, realise plans for urban development and put an end to a situation involving safety and health risks which had given rise to complaints.", "110. The Court observes that the order of 17 September 2005 did not contain a statement about its aim. It was based on a legal provision which concerns recovering a real property from persons who are not authorised to hold it (see paragraph 66 above). As it transpires from statements made by the mayor of the relevant district and from the Government’s submissions (see paragraphs 39, 42 and 92 above), putting an end to the unlawful occupation of the land by the applicants was, apparently, the main aim pursued by the impugned order.", "111. As the Court has previously stated, it is legitimate for the authorities to seek to regain possession of land from persons who did not have a right to occupy it (see McCann v. the United Kingdom, cited above, § 48 and Connors v. the United Kingdom, no. 66746/01, § 69, 27 May 2004).", "112. Furthermore, it is undisputed that the Batalova Vodenitsa settlement comprises buildings which do not meet the relevant construction requirements (see paragraphs 10-14 above). While it is true that the Government have not submitted evidence of concrete and imminent construction projects, there was a general intention on the part of the authorities to use the land occupied by the applicants for urban development. In particular, such plans for Batalova Vodenitsa had been made and amended several times in the past, including well before 2005 (see paragraphs 9, 15 and 26 above).", "113. Unlike the applicants, the Court fails to see an indication of improper motives in the authorities’ plans to transfer the land to a private investor for development purposes (see paragraph 27 above). Improvement of the urban environment by removing unsightly and substandard buildings and replacing them with modern dwellings meeting the relevant architectural and technical requirements is a legitimate aim in the interests of economic well-being and the protection of the health and the rights of others and may in principle justify interference with rights under Article 8 of the Convention (see a similar approach in Buckley v. the United Kingdom, 25 September 1996, §§ 62 and 63, Reports of Judgments and Decisions 1996 ‑ IV, and Chapman, cited above, §§ 80-116).", "114. The Court observes, in addition, that it is undisputed that the applicants’ homes lack sewage and sanitary facilities. The Government also alleged that there was a risk of some makeshift houses collapsing. In the Court’s view, while there is no clear evidence of the authorities having considered these issues from the point of view of the needs of those most concerned – the applicants –, it must be acknowledged that there is a legitimate public interest in taking measures to cope with hazards such as those that may stem from an unlawful settlement of makeshift houses lacking sewage and sanitary facilities. Indeed, this was admitted by representatives of the Batalova Vodenitsa residents in the text of the agreement which they signed with the municipal authorities on 28 September 2005 (see paragraphs 11 and 34 above).", "115. Lastly, the Court finds unconvincing the applicants’ argument that the authorities envisaged building plans as a mere pretext and that the real aim of the removal order was nothing more than a racist attempt to rid the area of the presence of all Roma. As noted above, there is sufficient evidence of genuine plans for urban development in the area and health and safety hazards and it is legitimate for the authorities, in the interests of economic well-being and the protection of health and of the rights of others, to seek to address these problems.", "116. It follows that the impugned measure, if enforced, would have a legitimate aim under Article 8 § 2 of the Convention. The salient issue in the present case concerns “necessity in a democratic society” within the meaning of that provision and the Court’s case-law.", "(d) Necessity in a democratic society", "i. General principles", "117. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI).", "118. In this regard, a margin of appreciation must be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The Court has noted the following relevant considerations in this respect:", "(i) In spheres involving the application of social or economic policies, including as regards housing, there is authority that the margin of appreciation is wide, as in the urban or rural planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see, for example, Buckley, cited above, p. 1292, § 75 in fine, and Ćosić, cited above, § 20);", "(ii) On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Since Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community, where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (see, among many others, Connors, cited above, § 82);", "(iii) The procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, and Chapman, cited above, § 92). The “necessary in a democratic society” requirement under Article 8 § 2 raises a question of procedure as well of substance (see McCann, cited above, § 26);", "(iv) Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he has no right of occupation (see Kay and Others v. the United Kingdom, no. 37341/06, § 67-8 and 74, 21 September 2010 and Orlić v. Croatia, no. 48833/07, § 65, 21 June 2011). This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons ( ibid ., §§ 67-69);", "(v) Where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the Court may draw the inference that the State’s legitimate interest in being able to control its property should come second to the applicant’s right to respect for his home ( ibid ).", "ii. Application of those principles to the facts of the case", "α) The Court’s approach in the present case", "119. Seeing that the applicants have been ordered to leave under a final binding removal order but its enforcement has been postponed and a significant period has elapsed since then (see paragraphs 35, 52 and 56 above), the Court must examine separately (i) whether the removal order, as it was issued and reviewed by the courts in 2005-2006, was justified under Article 8 § 2 and (ii) whether other events or measures taken by the authorities since then may affect the Court’s conclusion on what is necessary in a democratic society.", "β) Whether the order of 17 September 2005 was justified under Article 8 § 2", "120. There is no doubt that the authorities are in principle entitled to remove the applicants, who occupy municipal land unlawfully (see paragraph 111 above).", "121. The Court notes, however, that for several decades the national authorities did not move to dislodge the applicants’ families or ancestors and, therefore, de facto tolerated the unlawful Roma settlement in Batalova Vodenitsa (see paragraphs 8, 17 and 92 above). In its view, this fact is highly pertinent and should have been taken into consideration (see, for example, Orlić v. Croatia, § 70, cited above). While the unlawful occupants cannot claim any legitimate expectation to remain, the authorities’ inactivity has resulted in the applicants’ developing strong links with Batalova Vodenitsa and building a community life there. The principle of proportionality requires that such situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.", "122. The impugned removal order was based on section 65 of the Municipal Property Act, under which persons unlawfully living on municipal land can be removed regardless of any special circumstances, such as decades-old community life, or possible consequences, such as homelessness. Under the relevant domestic law, as in force at the time, the municipal authorities were not required to have regard to the various interests involved or consider proportionality (see paragraphs 38, 66 and 72 above). Relying on this legal framework, the municipal authorities did not give reasons other than to state that the applicants occupied land unlawfully and, in the judicial review proceedings, the domestic courts expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived undisturbed in Batalova Vodenitsa (see paragraphs 29-31 and 36-38 above).", "123. In cases such as the present one, this approach is in itself problematic, amounting to a failure to comply with the principle of proportionality. Under Article 8 of the Convention, the removal order against the applicants can only be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued (see the case ‑ law cited in paragraphs 121 and 122 above).", "124. The Court further observes that it is undisputed that the houses of most applicants do not meet basic sanitary and building requirements, which entails safety and health concerns. It considers, however, that in the absence of proof that alternative methods of dealing with these risks have been studied seriously by the relevant authorities, the Government’s assertion that the applicants’ removal is the appropriate solution is weakened and cannot in itself serve to justify the removal order.", "125. Indeed, the Bulgarian authorities have recognised, as can be seen from their long-term programmes and declarations on Roma inclusion and housing problems, as well as from projects realised in other parts of Sofia or elsewhere in the country, that a wide range of different options are to be considered in respect of unlawful Roma settlements. Among those are legalising buildings where possible, constructing public sewage and water-supply facilities and providing assistance to find alternative housing where eviction is necessary (see paragraphs 60-63, 65, 69, 70, 73-83 and 95 above). While some of these options are directly relevant to achieving appropriate urban development and removing safety and health hazards, the Government have not shown that they were considered in the case at hand.", "126. In addition, it is noteworthy that before issuing the impugned order the authorities did not consider the risk of the applicants’ becoming homeless if removed. They attempted to enforce the order in 2005 and 2006 regardless of the consequences and, while they signed an agreement containing an undertaking to secure alternative shelter, they later disregarded it and declared that the risk of the applicants’ becoming homeless was “irrelevant” (see paragraphs 27-42 above). The Court considers, however, that in the specific circumstances of the present case, in view, in particular, of the long history of undisturbed presence of the applicants’ families and the community they had formed in Batalova Vodenitsa, the principle of proportionality required that due consideration be given to the consequences of their removal and the risk of their becoming homeless.", "127. The Court also notes that there is no indication that the construction plans invoked by the Government ever moved close to the stage of implementation. The Government have not shown, therefore, that the land was urgently needed for the public need they mentioned. Proportionality in cases such as the present one is inextricably linked to the use for which the authorities seek to recover the land. In principle, in cases where the domestic authorities have considered these matters, the Court would normally accept their conclusion unless manifestly unreasonable. As there is no evidence of such an attempt, the Court cannot but attach less weight to the alleged importance of the development plans for the land currently occupied by the applicants.", "128. Furthermore, it transpires from statements made by municipal officials and the Government’s submissions before the Court that at the local level, in the present case, the authorities have refused to consider approaches specially tailored to the needs of the Roma community on the ground that such an attitude would amount to discrimination against the majority population. In this connection, in the Court’s view, there would appear to be a contradiction between, on the one hand, adopting national and regional programmes on Roma inclusion, based on the understanding that the applicants are part of an underprivileged community whose problems are specific and must be addressed accordingly, and, on the other hand, maintaining, in submissions to the Court, as the respondent Government did in this case, that so doing would amount to “privileged” treatment and would discriminate against the majority population (see paragraphs 41, 60-63 and 95-98 above).", "129. The latter argument fails to recognise the applicants’ situation as an outcast community and one of the socially disadvantaged groups (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ IV, with further references). Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population. As the Court has stated in the context of Article 14 of the Convention, that provision not only does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them but, moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see D.H. and Others v. the Czech Republic, cited above, § 175; “Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.", "130. The above does not mean that the authorities have an obligation under the Convention to provide housing to the applicants. Article 8 does not in terms give a right to be provided with a home (see, Chapman, cited above, § 99) and, accordingly, any positive obligation to house the homeless must be limited (see O’Rourke v. the United Kingdom (dec.), no. 39022/97, ECHR 26 June 2001). However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases ( ibid .; see, also, mutatis mutandis, Budina v. Russia (dec.), no. 45603/05, 18 June 2009).", "131. It is also true that the applicants themselves have not been active in seeking a solution (see paragraphs 13, 43 and 51 above). It appears that they are reluctant to seek social housing at least partly because they do not want to be dispersed, find it difficult to cover the related expenses and, in general, resent the radical change of their living environment that moving into blocks of flats would entail. However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely (see Chapman, cited above, § 96, which concerns a very specific and relatively narrow positive obligation to facilitate itinerant way of life which is determinative of an identity).", "132. The relevant point in this case is, nonetheless, that the disadvantaged position of the social group to which the applicants belong could and should have been taken into consideration, for example, in assisting them to obtain officially the status of persons in need of housing which would make them eligible for the available social dwellings on the same footing as others. This has been recognised by the Bulgarian authorities in their national and regional programmes but that did not result in practical steps being taken in the present case (see paragraphs 55-59 and 61-65 above).", "133. In general, the underprivileged status of the applicants’ group must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. This has not been done in the present case.", "134. In sum, the Court finds that the respondent Government failed to establish that the removal order of 17 September 2005 was necessary in a democratic society for the achievement of the legitimate aims pursued.", "γ) Whether events since 2005-2006 would render the enforcement justified", "135. It is true that in the years since September 2005 the fate of the Batalova Vodenitsa area has been the subject of negotiations, discussions and examination by consultative bodies such as the National Council for Cooperation on Ethnic and Demographic Issues. The Council apparently recommended consideration of alternative modes of action and a more balanced solution. The Government and the local authorities in Sofia declared on several occasions that they planned to find a solution to the applicants’ housing problem by providing them with alternative shelter (see paragraphs 33, 44, 55, 57 and 96 above). It is also true that several programmes on Roma housing problems have been adopted at the national and regional level in Bulgaria (see paragraphs 60-63 above) and that, apparently, some projects in other locations have been undertaken. All this may suggest that the authorities are seeking a proportionate approach, combining the enforcement of building planning rules with positive measures to assist the individuals concerned.", "136. The Court cannot but observe, however, that these discussions and programmes were not part of a formal procedure before a body in which power to modify the impugned order for the applicants’ removal was vested and, in any event, they did not result in any legal act concerning the applicants concretely. The order of 17 September 2005 has remained in force and is still enforceable. Although the mayor of the relevant district suspended the applicants’ removal temporarily, it is significant that, as it appears from the material submitted to the Court, there has been no decision to re-examine the order of 17 September 2005 or tie its enforcement to the implementation of appropriate measures to secure respect for the applicants’ Article 8 rights (see paragraphs 41, 45-48 and 56 above).", "137. In these circumstances, it cannot be considered that the above-mentioned post hoc discussions have secured the fair decision-making process that is indispensable for the discharge of the respondent State’s duties under Article 8 of the Convention or that “necessity in a democratic society” was otherwise demonstrated.", "138. The Government have also argued that repeated complaints by neighbours, including in 2008 and 2009, would justify the enforcement of the removal order (see paragraphs 93 and 97 above).", "139. It appears undisputed between the parties that, before 2005 and since then, there have been repeated complaints by residents of blocks of flats adjacent to the land at issue in which two main issues were raised: (i) sanitary risks mainly related to the lack of sewage and the fact that the applicants’ homes do not meet building requirements and (ii) offences and disturbances of public order allegedly committed by the residents of the unlawful settlement in Batalova Vodenitsa (see paragraphs 20-25, 42 in fine, 56, 93 and 97 above).", "140. On the first issue, the Court has already found that health risks of that kind could in principle justify the impugned measures, had it been demonstrated – which is not so in the present case – that the removal order respected the principle of proportionality (see paragraphs 120-134 above).", "141. As to the second issue, the Court accepts that the authorities were under a duty to act in response to the neighbours’ allegations about offences and disturbances in the area. It was their responsibility to apply the law and, if necessary, investigate the alleged offences and sanction the individuals concerned. The respondent Government have not provided any evidence of such action having been taken.", "142. Some of the neighbours’ complaints, however, also contained illegitimate demands, such as to have the applicants “returned to their native places” (see paragraph 93 above). It is also clear that the situation that obtained was characterised by tension that risked fuelling animosity between two social and ethnic groups. It was therefore important to act in such a manner that the authorities were not seen as being influenced by hostile attitudes of one group against another. However, the Court is not convinced that these subsequently raised illegitimate demands played any role in the initial decision-making process for the issuing of the removal order in question.", "143. In sum, the events since the removal order was issued and reviewed by the domestic courts do not provide a basis for a conclusion that its future enforcement would be justified.", "(e) Conclusion as regards Article 8", "144. The above considerations are sufficient for the Court to reach the conclusion that there would be a violation of Article 8 in the event of enforcement of the deficient order of 17 September 2005 as it was based on legislation which did not require the examination of proportionality and was issued and reviewed under a decision-making procedure which not only did not offer safeguards against disproportionate interference but also involved a failure to consider the question of “necessity in a democratic society”.", "2. Article 14 in conjunction with Article 8", "145. The parties’ submissions are summarised in paragraphs 85-99 above. In essence, the applicants complained that the removal order was based on racist attitudes against them and the Government maintained that the removal order was justified and that the applicants could not claim a privileged treatment.", "146. It is undisputed that Article 14 applies in the present case, seeing that discrimination is alleged in relation to the applicants’ right to respect for their homes and private life and, therefore, in respect of issues falling within the ambit of Article 8 (see, for example, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Larkos v. Cyprus [GC], no. 29515/95, § 28, ECHR 1999 ‑ I).", "147. The Court observes, however, that the issue before it is whether a hypothetical future enforcement of the removal order would be discriminatory. The Court cannot speculate about the timing and modalities of any such enforcement and assess the Article 14 issue on the basis of a hypothetical scenario. For example, it cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice.", "148. The Court also notes that the main argument of the applicants about discrimination concerns the allegation that the authorities were unduly influenced by hostile attitudes and complaints from neighbours. The Court has dealt with relevant aspects of these issues in the context of proportionality under Article 8 (see paragraphs 128-143 above).", "149. In these circumstances, the Court finds that no separate issue arises under Article 14 with regard to any future enforcement of the removal order of 17 September 2005.", "3. Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1", "150. The applicants considered that in the event of enforcement of the order of 17 September 2005 there would also be violations of Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1. The Government disputed this.", "151. The Court, noting that the enforcement of the order of 17 September 2005 has been suspended, cannot speculate about the modalities of any future enforcement and cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice or would not offer alternative shelter where appropriate. Nor can it assume that the authorities would damage their belongings or would not allow time to move them. The municipal authorities had stated their intention to issue a separate demolition order in the event of enforcement of the impugned removal order (see paragraph 31 above).", "152. In any event, the Court has already found that the enforcement of the removal order of 17 September 2005 would violate the applicants’ rights under Article 8 on the grounds that it was issued and reviewed in a manner which did not secure the minimum procedural safeguards. In these circumstances, there is no reason to doubt that the respondent Government would comply with the present judgment and would not act in violation of the Convention by removing the applicants on the basis of a deficient order.", "153. For the reasons set out above, the Court finds it unnecessary to examine the above complaints separately.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "154. The applicants alleged that, apart from any violation of the Convention that would occur in the event of the future enforcement of the removal order, the authorities had already violated their rights under Articles 3, 8, 13 and 14.", "155. In particular, in their view, the unjust and arbitrary manner in which the authorities had acted – seeking summarily to remove them after decades of tolerating their presence, disregarding signed agreements and legitimate concerns, moving on the basis of racially biased complaints by non-Roma inhabitants and demonstrating clear indifference to the applicants’ becoming homeless, amounted to treatment of such gravity that it could be characterised as degrading. That treatment was in any event discriminatory.", "156. The Government considered that all the actions complained of were lawful and justified under the Convention.", "157. The Court accepts that the applicants’ situation in September 2005, when they and their families were given only several days to leave their decades-old homes, was unenviable. The Court has already found that Article 8 would be violated in the event of the removal order of 17 September 2005 being enforced (see paragraph 144 above).", "158. It is further relevant that the authorities accepted to suspend the enforcement of the removal order. The Court finds unconvincing the applicants’ argument that, despite the above, they were subjected to treatment beyond the threshold of severity required under Article 3 or suffered a separate violation of Article 8 as a result of the very fact that the authorities announced their decision to remove them and made preparatory moves. It should not be overlooked that the applicants knew at all relevant times that they occupied municipal land unlawfully and could not expect to remain there indefinitely.", "159. It is true that serious cases of discriminatory statements by public officials or failure by the authorities to react to racist statements may constitute violations of Article 14 or even Article 3 (see Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 111-14, ECHR 2005 ‑ VII (extracts), with further references). The Court cannot exclude furthermore that a failure to react to discriminatory attitudes and statements could amount to a violation of Article 14 in conjunction with other Convention provisions, including Article 8.", "160. The Court notes, however, that that the applicants’ main complaint concerns a potential violation of the their rights under Article 8. As regards the attitudes and statements complained of, Bulgaria has put in place legal protection mechanisms, such as the possibility to file complaints to the commission set up under the Protection against Discrimination Act or directly bring judicial proceedings. This mechanism apparently functions in practice as seen from relevant examples (see paragraph 71 above) and the applicants have not claimed that they could not resort to it. It cannot be said, therefore, that the national legal system left the applicants defenceless. They could bring legal proceedings with a view to having incidents of hate speech examined and obtain an authoritative condemnation of any racist statements, and compensation.", "161. In sum, the Court, having examined in detail the complaints concerning the future enforcement of the removal order of 17 September 2005 (see paragraphs 100-153 above), finds that the applicants have not established convincingly that the additional complaints formulated by them give rise to a separate issue under the Convention.", "III. APPLICATION OF ARTICLE 46 OF THE CONVENTION", "162. The Court finds it appropriate to consider the present case under Article 46 of the Convention, which reads as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "163. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order. Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I).", "164. Contracting States’ duty in international law to comply with the requirements of the Convention may require action to be taken by any State authority, including the legislature (see Viaşu v. Romania, no. 75951/01, 9 December 2008).", "165. In view of the relevant strict provisions in the Municipal Property Act, noted in the present judgment (see paragraphs 122 and 123 above), and the fact that the order of 17 September 2005 is still enforceable in Bulgarian law, it appears necessary to assist the respondent Government in the execution of their duty under Article 46 of the Convention.", "166. In particular, in view of its findings in the present case, the Court expresses the view that the general measures in execution of this judgment should include such amendments to the relevant domestic law and practice so as to ensure that orders to recover public land or buildings, where they may affect Convention-protected rights and freedoms, should, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality.", "167. In so far as individual measures are concerned, the Court is of the view that the execution of the present judgment requires either the repeal of the order of 17 September 2005 or its suspension pending measures to ensure that the authorities have complied with the Convention requirements, as clarified in the present judgment.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "168. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "169. The applicants claimed 10,000 euros (EUR) each for non-pecuniary damage. They stated that they had suffered from the fact that they had to live for years under the threat of homelessness and from the alleged racial bias in the authorities’ actions. The applicants requested that any award of damages should be made payable to the bank account of the Bulgarian Helsinki Committee.", "170. The Government, objecting to the allegations about discrimination and racist attitudes on the part of the authorities, considered that the finding of a violation of the Convention would constitute sufficient just satisfaction.", "171. In the present case, the Court found that there would be a violation of Article 8 of the Convention if the order of 17 September 2005 were enforced. In most cases concerning violations that have not already occurred, the Court considered that the finding of a violation was sufficient just satisfaction (see, mutatis mutandis, Raza v. Bulgaria, no. 31465/08, § 88, 11 February 2010, with further references). It sees no reason to reach a different conclusion in this case. Furthermore, it is relevant that, as noted above, the applicants themselves have not been very active in seeking a solution that would allow them to put an end to their unlawful occupation of land in Batalova Vodenitsa (see paragraphs 13, 43 and 51 above).", "B. Costs and expenses", "172. The applicants claimed EUR 5,786.82 for costs and expenses relating to the domestic proceedings and the proceedings before the Court. This sum included legal fees for eighty-one hours of legal work at the hourly rate of EUR 70 and court fees in the amount of EUR 116.82. The applicants submitted copies of a legal fees agreement, a time sheet and receipts. They requested that any sums awarded under this head should be paid directly into the bank account of the Bulgarian Helsinki Committee, the organisation which provided them with legal assistance.", "173. The Government considered that the claim was excessive as the hourly rate claimed allegedly exceeded several times the usual rates charged by lawyers in Bulgaria.", "174. Having regard to the relevant criteria and considering that the number of hours of legal work claimed appears to be excessive, the Court awards EUR 4,000 in respect of costs and expenses.", "C. Default interest", "175. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The relevant background", "1. The applicants’ homes", "6. The applicants are residents of Batalova Vodenitsa, a neighbourhood of Sofia. They describe themselves as being of Roma origin.", "7. Unlike some other European countries, where the Roma often have an itinerant way of life, in Bulgaria, at least since the 1960s, the great majority of the Roma live a settled life. Typically, Bulgarian towns feature one or more predominantly Roma neighbourhoods in non-central areas.", "8. Some of the applicants or their parents and in some cases their grand ‑ parents moved to Batalova Vodenitsa at the end of the 1960s and in the 1970s. Others are more recent arrivals who settled there in the 1990s.", "9. In the 1960s land in the neighbourhood in question was expropriated by the State and cleared in the context of the authorities’ housing construction policy. A number of blocks of flats were constructed there, but the plots currently inhabited by the applicants remained vacant, having been earmarked for a green area, which was never landscaped.", "10. The applicants’ families built their homes on State land without any authorisation. The area thus gradually developed into a small Roma settlement. It appears that between 200 and 300 persons live there.", "11. Most of the buildings are single-storey houses. There is no sewage or plumbing. The inhabitants use water from two public fountains.", "12. Most applicants’ registered addresses are at their homes in Batalova Vodenitsa. Many of them are registered at one and the same address although they live in separate buildings which do not figure on any official area plan. Most of the applicants live in their houses with their families, including young children or grandchildren.", "13. The applicants never sought to regularise the buildings they had constructed. This was in principle possible through applications for building permits and planning approval. According to the applicants, making such applications was difficult for them as they are poor and live their lives in the Roma community, isolated from the rest of society.", "14. It is undisputed by the parties that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and cannot be legalised without substantial reconstruction.", "15. In 1987 the local building plan was amended and the construction of dwellings was envisaged on the plots in question. The plan was never implemented.", "16. Following a legislative reform, in 1996 the land occupied by the applicants became the property of the Sofia municipality.", "17. Until 2005, the State and municipal authorities never took steps to remove the applicants and their families.", "18. Under the relevant law the applicants cannot obtain ownership of the land they occupy. Until 1996 the provisions on acquisitive prescription did not apply in respect of State and municipal land. Since 1996, these provisions, under which a ten-year period of possession may suffice for the acquisition of real property, apply to most categories of municipal land. However, in 2006, shortly before the expiry of ten years after the 1996 amendment, Parliament suspended the running of prescription periods in respect of State and municipal land. The suspension has been extended several times and is currently in force until 31 December 2014 (sections 79 and 86 of the Property Act and the transitional provisions thereto).", "19. According to a statement by a Mr B. T., a Roma resident of Batalova Vodenitsa, his parents are the lawful owners of their house there and possess a notarial deed. A copy of the notarial deed has not been submitted by the applicants. Neither Mr B.T. nor his parents were among the addressees of the removal order of 17 September 2005 (see paragraph 31 below).", "2. Complaints by third persons, public declarations, protests and media coverage", "20. From the beginning of the 1990s tension grew in several regions of Sofia between the inhabitants of Roma settlements and their non-Roma neighbours. The issue of Roma settlements, often referred to as “ghettos”, was widely debated in the media. Many commentators urged the emptying of all “Roma ghettos” in Sofia. This line was supported by a number of leading politicians. Occasionally, the views of Roma organisations were also published.", "21. Between 2003 and 2006 several demonstrations were held by non-Roma residents of different areas in Sofia seeking the eviction of their Roma neighbours. Other demonstrations were held by non-Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods Roma families to be removed from other parts of the city.", "22. It appears that on an unspecified date non-Roma residents of Batalova Vodenitsa formed an association with the aim to bring pressure to bear on the authorities in relation to the applicants’ unlawful settlement.", "23. Most complaints against the Roma inhabitants of Batalova Vodenitsa concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals (allegedly including sheep, pigs, hens and horses). Also, many non-Roma residents of the area believed that the Roma inhabitants were responsible for numerous offences, including physical assault, theft and damage to public and private property. The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area.", "24. The municipal authorities in Sofia perceived as a serious problem the fact that since 1990 many Roma had moved to Sofia and settled in illegal Roma settlements, thus increasing their overpopulation and generating more illegal construction and sanitary problems.", "B. The decision to remove the applicants and the ensuing judicial proceedings", "25. In March 2000 an unspecified number of individuals, apparently persons who had obtained decisions restoring their property rights over expropriated land in the Batalova Vodenitsa area, complained to the Sofia municipal council that “persons of Roma origin” were unlawfully occupying land in the area. Having examined the matter, on 11 December 2000 the municipal council decided to offer the restored owners other municipal land in exchange for their land. It also invited the mayor of Sofia to develop a plan for the resolution of the “problem as a whole”. No such plan appears to have been adopted.", "26. In 2003 the local building plan in Batalova Vodenitsa was modified by the municipal authorities, who planned to develop the area.", "27. On 2 March 2005 the Sofia municipal council approved in principle the transfer of title to plots of land in Batalova Vodenitsa to Mr K., a private investor. The transfer was effected on 16 May 2006. The plots of land in question were adjacent to the land occupied by the applicants. It is unclear whether Mr K. ever realised any development project.", "28. On 29 August 2005 municipal officials visited the Batalova Vodenitsa neighbourhood and issued a document certifying that the applicants and other persons occupied the land.", "29. On 8 September 2005, Ms S., the district mayor, invited all or almost all residents – approximately 180 Roma, including the applicants – to leave their homes within seven days as they were occupying municipal land unlawfully. The text referred to section 65 of the Municipal Property Act and contained a list of the names of its addressees and also a warning that failure to comply would result in removal by the police.", "30. The applicants filed an appeal. On 15 September 2005 municipal officials issued a document certifying that the residents concerned had not left the area.", "31. As a result, on 17 September 2005 the mayor ordered their forcible removal on 27 September 2005. The order listed individually the names of all those concerned. The mayor also stated her intention to secure a decision for the demolition of the applicants’ houses in accordance with the Building Planning Act ( Закон за устройство на територията ).", "32. The applicants asked the Sofia City Court to stay their removal pending the examination of their appeal against the removal order. The court granted their request.", "33. On 28 September 2005 a committee representing the Roma residents of the area signed an agreement with the municipal authorities in Sofia according to which the municipality would offer alternative housing to the persons registered as Batalova Vodenitsa residents, whereupon they would be removed. No action was taken by the municipality in execution of this agreement.", "34. The agreement also provided that the committee of representatives would take measures to improve hygiene in the Roma settlement. They also undertook to organise the removal of unauthorised domestic animals kept by residents and keep better order. According to the Government, the situation did not improve.", "35. In the judicial proceedings against the mayor’s order, on 12 January 2006 the Sofia City Court ruled that the removal order was lawful. The applicants appealed. On 12 June 2006, the Supreme Administrative Court upheld the City Court’s judgment.", "36. The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful. If the applicants considered that they had property rights, it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights. They had not done so. In these circumstances and having regard to section 92 of the Property Act, their houses were owned by the municipality.", "37. The courts also stated that the applicants’ allegations about violations of the Convention and discrimination were groundless.", "38. The courts ignored as irrelevant under domestic law the applicants’ argument that they should not be removed because they had lived in the area for decades with the authorities’ acquiescence, and their arguments based on the principle of proportionality.", "C. Attempt to remove the applicants in 2006", "39. On 21 June 2006, the municipal authorities announced their intention to evict the unlawful residents of Batalova Vodenitsa, including the applicants, by 28 June and to demolish their homes. On 22 June 2006 the district mayor was reported in the press as having stated that the removal order had been issued as a result of numerous complaints by neighbours in relation to the unlawful settlement.", "40. As a result of political pressure, mainly from members of the European Parliament, the authorities did not proceed with the eviction.", "41. In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “from Europe”. Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of Batalova Vodenitsa. In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other people who had been on the waiting list for many years.", "42. On an unspecified date shortly after 12 June 2006, Ms S., the mayor of the relevant district, participated in a televised debate concerning the fate of the Roma settlement in Batalova Vodenitsa. She stated, inter alia, that the Roma inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully. For that reason, she would not offer them the tenancy of municipal dwellings, there being many other families on the waiting list. The district mayor further stated that the agreement of 28 September 2005 between the mayor of Sofia and a committee of representatives of the Roma families “had been concluded in a pre-electoral period” and that she did not consider herself bound by it. She also stated that the removal order had been upheld by the courts and must be enforced; the fact that the persons concerned had nowhere to go was irrelevant. The mayor further stated that she had received complaints by non-Roma inhabitants of the area and was under a duty to act.", "43. Most of the applicants have not tried to make arrangements to find new homes for their families. Between 2004 and 2007 three of the applicants registered at addresses in other areas of Sofia. In 2005 one of the applicants declared an address in the town of Sandanski as her official address. According to these four applicants, although for short periods they lived outside Batalova Vodenitsa, in dwellings occupied by relatives, their only real home had remained Batalova Vodenitsa.", "44. It appears that after June 2006 negotiations continued between the Roma inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants’ position who had been registered as resident in Batalova Vodenitsa before 1996. Non-governmental organisations defending the rights of the Roma and Government representatives also took part.", "45. Information about intentions to resettle the Batalova Vodenitsa unlawful residents have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged. It appears that no viable resettlement plan has ever been elaborated.", "46. In interviews and statements, local officials supported the non-Roma population. In a radio interview in November 2006, the mayor of Ovcha Kupel district in Sofia stated that “the nuisance that a Roma settlement would create [if Roma families were to move into his district] would surpass by far the inconvenience that a refuse tip would create”. He also stated that “Roma families could not expect to live among the citizens as they did not have the necessary culture”.", "D. Attempt to remove the applicants in 2008 and developments since then", "47. On 27 June 2008 the municipal authorities served a notice on the inhabitants of the area, including the applicants, requiring them to leave their houses by 10 July 2008, failing which they would be evicted forcibly on 11 July 2008.", "48. The notice was issued in execution of the removal order of September 2005, which was final and enforceable.", "49. On 8 July 2008 the Court indicated to the Government of Bulgaria, under Rule 39 of the Rules of Court, that the applicants should not be evicted from their houses until 23 July 2008, pending receipt by the Court of detailed information about any arrangements made by the authorities to secure housing for the children, elderly, disabled or otherwise vulnerable individuals to be evicted.", "50. The Government submitted a copy of a statement by Ms S., the district mayor, who indicated that two local social homes could provide five rooms each and that several elderly persons could be housed in a third home. There was no information about any possibility to house families together.", "51. Also, it appears that none of the applicants was willing to be separated from the community and housed in such conditions, not least because it was impossible, according to them, to earn a living outside the community.", "52. On 22 July 2008 Ms S., the district mayor, stated that she had suspended the enforcement of the removal order “pending the resolution of the housing problems of the Batalova Vodenitsa residents”. The order was not quashed.", "53. In the light of this information, the President of the Court’s Fifth Section decided on 23 July 2008 to lift the interim measure of 8 July 2008, specifying that the decision was taken on the assumption that the Court and the applicants would be given sufficient notice of any change in the authorities’ position for consideration to be given to a further measure under Rule 39 of the Rules of Court.", "54. On 23 July 2008 the National Council for Cooperation on Ethnic and Demographic Issues, which includes representatives of non-governmental organisations and is presided over by the Director of the Ethnic and Demographic Matters Directorate at the Council of Ministers, discussed the issue. Representatives of the Sofia municipality were advised to refrain from measures seeking to resolve the problem in Batalova Vodenitsa at the expense of creating tension in other areas. The majority view was that the Roma families living in Batalova Vodenitsa should not be evicted and their homes should not be demolished before a lasting solution was found.", "55. According to a letter from the Director of Ethnic and Demographic Matters, sent in January 2009 in connection with the present application, the Sofia municipality was working on a programme for the revitalisation of Roma neighbourhoods. It was envisaged to construct temporary housing on several municipal plots of land. Partial initial financing of the construction work could be provided by the Government but other sources were needed as well. It was envisaged to encourage the Roma applying for housing to take jobs in the construction work under the relevant social employment schemes. The project’s elaboration, including architectural plans, was allegedly under way. The project concerned Roma families who moved to Batalova Vodenitsa before 1996. Those who settled there more recently had “to return to their previous homes”.", "56. On 12 January 2010, in reply to a letter from residents protesting against the authorities’ failure to evict their Roma neighbours from Batalova Vodenitsa, Ms S., the district mayor, stated that the enforcement of the 2005 eviction order had been postponed under pressure from members of the European Parliament and that the applicants had started proceedings in the European Court of Human Rights. The letter did not mention plans to secure alternative housing for the persons to be evicted.", "57. According to media reports, in May 2010 plans to resettle the inhabitants of Batalova vodenitsa on other State or municipal property were discussed by the municipal authorities.", "58. In their latest submissions of December 2010 the parties have not reported any progress in the realisation of such projects.", "59. According to the applicants, the resettlement plans mentioned by the authorities are nothing more than empty promises.", "E. Other relevant facts", "60. In March 2006 a ten-year National Programme (2005-2015) for the Improvement of the Housing Conditions of Roma in Bulgaria was adopted by the Council of Ministers in the context of the international initiative entitled Decade of Roma Inclusion 2005–2015.", "61. In September 2007, the Sofia municipal council adopted a plan for the implementation of the ten-year national programme in Sofia for the period 2007-2013. The document includes an analysis of the existing situation in respect of housing.", "62. According to this analysis, overpopulated Roma settlements had formed over the years in Sofia and nothing had been done by the authorities in the past to address the ensuing problems. Having always been a marginalised group with minimal resources, the Roma cannot in practice acquire real property. Traditionally they occupy vacant land and construct makeshift huts. Although most of them, being persons in need of housing, meet the relevant criteria for tenancy of municipal housing, this option does not work in practice owing to several factors, including the limited number of available municipal dwellings and unwillingness on the part of many Roma families to resettle in municipal flats. Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses, such as utility bills, and partly by the animosities which often erupt between non-Roma residents of blocks of flats and Roma families moving in.", "63. The ten-year National Programme and the 2007-2013 Sofia plan provide for the following actions, among others: elaborating municipal housing programmes, legalising buildings if they meet the relevant construction standards, constructing sewage and water-supply facilities in Roma neighbourhoods and providing information and assistance to those who apply for municipal housing.", "64. The 2010 Monitoring report on the implementation of the Decade of Roma Inclusion 2005–2015 programme does not mention any progress having been made in respect of Roma housing. The concluding text of the report contains a recommendation to the relevant institutions and stakeholders to make timely use of the possibilities under Article 7(2) of Regulation (EC) No. 1080/2006 on the European Regional Development Fund.", "65. According to media reports, in several regions in Bulgaria construction works are under way for the building of dwellings intended to house Roma who have been removed or are to be removed from land which they occupy unlawfully." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "66. Section 65 of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it. The mayor’s order is amenable to judicial appeal. Its enforcement is effected by the police.", "67. The new paragraph 5 of section 65, added in May 2008, provides that persons occupying municipal real property without a legal basis cannot avail themselves of sections 72-74 of the Property Act, which bestow certain rights on holders of property belonging to another (under certain conditions, the right to reimbursement for improvements, and to withhold the property pending such reimbursement).", "68. According to section 92 of the Property Act, read in conjunction with its other provisions, buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person. Prior to 1996 it was not possible under Bulgarian law to acquire State or municipal property through adverse possession. Since 1996, state and municipal property, if it is of the category of “private state property”, may in principle be acquired by private persons through adverse possession, under a number of conditions. Through a transitory provision introduced in 2006, the running of the ten-year prescription period was suspended and the suspension is still in force.", "69. The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section 45a of the Municipal Property Act. These regulations, which differ from city to city, usually require candidates to have had their registered address in the town for more than five years, to have no real property of their own, and to have resources that do not exceed a certain maximum. Typically the application must be made in writing on a form and be accompanied by a number of documents. The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal. Among the candidates recognised as being in need of housing, homeless persons and those living in dangerous and unhealthy conditions have priority.", "70. In accordance with sections 43 and 45 of the Municipal Property Act, an emergency stock of municipal flats may be used to house for up to two years persons whose dwellings are unsafe as being in danger of collapsing and persons with severe social or health problems.", "71. Under sections 4 and 5 of the Protection against Discrimination Act, in force since 1 January 2004, racially offensive statements may be considered discriminatory. The victim may file a complaint with the Commission for Protection against Discrimination (see, for example, Decision no. 178 of 25 July 2008, where that commission established that the anti-Roma language used in a television broadcast of 24 February 2007 amounted to prohibited discrimination) or bring an action in court. Racially offensive statements may be criminally punishable under Articles 146 and 148 of the Criminal Code. The proceedings must be initiated by the victim. Separately, incitement to racial hatred is an offence punishable under Article 162 of the Criminal Code.", "72. At the time when the removal order of 17 September 2005 was issued and reviewed by the domestic courts, Bulgarian administrative procedure law did not enshrine the principle of proportionality. Since July 2006, when the Code of Administrative Procedure entered into force, this principle is set out in Article 6 of the Code.", "III. RELEVANT INTERNATIONAL MATERIAL", "A. The Council of Europe", "73. On 18 October 2006 the Council of Europe’s European Committee of Social Rights delivered a decision on the merits of a complaint against Bulgaria brought by the European Roma Rights centre, a non-governmental organisation. The Committee found, inter alia, that “the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute[d] a violation of Article 16 of the Revised European Social Charter, taken together with Article E”. Article 16 concerns the right of families to “appropriate social, legal and economic protection” and Article E prohibits discrimination in the enjoyment of the rights set forth in the Charter.", "74. To reach its conclusion, the Committee found that the Bulgarian legislation allowing the legalisation of illegal constructions set conditions “too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families”, a situation recognised by the Bulgarian Government. The Committee also considered that the authorities had tolerated the unlawful Roma settlements for long periods and were accordingly obliged to carefully balance town planning measures against “the right to housing and its corollary of not making individual[s] homeless”. The Committee further found that by failing to take into consideration the specificity of the living conditions of Roma and strictly applying the rules on legalisation of buildings to them, Bulgaria had discriminated against Roma families, whose situation differed not least as a consequence of State non-intervention over a certain period. Similarly, there was discrimination on account of the authorities’ failure to take into account that Roma families ran a higher risk of eviction, and the authorities’ failure systematically to find alternative accommodation for the evicted families.", "75. On 5 September 2007 the Committee of Ministers of the Council of Europe adopted a resolution in the case in which it noted, inter alia, the Bulgarian delegation’s statement before it that Bulgaria intended to amend the Territorial Planning Act to allow for easier legalising of existing buildings and construction of social housing.", "76. In its 2005 Recommendation on improving the housing conditions of Roma the Committee of Ministers of the Council of Europe called upon member States, inter alia, to use proportionate response to illegal Roma settlements and seek, where possible, solutions acceptable for all parties. Also, eviction measures should include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures. As to daily life in existing settlements, the authorities should provide the same level of services as to other groups of the population and should, beyond that, promote better management including adequate management of neighbourhood conflicts. Housing policies should be tailored to the specific situations of the Roma communities.", "77. In its 2008 Recommendation on policies for Roma and/or Travellers in Europe, the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on Roma.", "78. In its Resolution 1740(2010) on the situation of Roma in Europe and relevant activities of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted with concern that the process of Roma integration in Europe had not reached its objectives over the last twenty years, that Roma people were still regularly victims of intolerance, discrimination and rejection based on deep-seated prejudices and that the situation of Roma with regard to education, employment, housing, health care and political participation was far from satisfactory. The Assembly stated that adopting national strategies was insufficient in the absence of implementation measures at local and regional levels. It urged member States, inter alia, to promote a positive image of diversity, address stereotypes and prejudices, react strongly to racist discourse by public officials and tackle hate speech vis-à-vis Roma, be it in the media, politics or in civil society. As regards housing, the Assembly urged member States to take urgent measures to prevent forced evictions of Roma camps and settlements and – in cases of unavoidable evictions – ensure that such evictions were carried out only when all procedural protections required under international human rights law were in place, including the provision of adequate alternative housing and compensation for expropriation and losses of moveable possessions damaged in the process of eviction and, in the absence of such procedural protections in the existing domestic law, introduce legislation on evictions providing safeguards and remedies in accordance with international standards.", "79. The Council of Europe’s Commissioner for Human Rights, in his 2009 Recommendation on the implementation of the right to housing stated, inter alia, that States should specify in legislation that positive measures are justified in order to promote full and effective equality provided that there was an objective and reasonable justification for such measures.", "B. The European Union", "80. In October 2009 the EU Agency for Fundamental Rights issued a comparative report on the housing conditions of Roma and travellers in the EU.", "81. According to the report, significant numbers of Roma in Europe live in unauthorised settlements. For example, in 2002 an estimated 70% of houses in urban Romani developments in Bulgaria were illegally built, in 1999 in Greece approximately 63,000 Roma lived in unregulated encampments and in 2008 in France most Roma groups lived in squalid shantytowns.", "82. The report also mentioned cases of forced evictions of such encampments, in particular in Italy and Greece.", "C. The United Nations Organisation", "83. The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment no. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights, stated, inter alia, that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions, such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, utilising all available resources, to ensure the provision of adequate alternative housing.", "THE LAW", "I. ALLEGED VIOLATIONS OF THE CONVENTION IN THE EVENT OF ENFORCEMENT OF THE ORDER OF 17 SEPTEMBER 2005", "84. The applicants alleged that if the order of 17 September 2005 was enforced and they were removed from their homes in Batalova Vodenitsa, that would amount to inhuman and degrading treatment contrary to Article 3 and violate their right to respect for their homes under Article 8. They further complained, relying on Article 13, that the authorities failed to consider proportionality issues and, relying on Article 14, that their removal would be discriminatory. They also complained that Article 1 of Protocol No. 1 would be violated.", "A. The parties’ submissions", "1. The applicants", "85. The applicants submitted that the houses where they lived and had their registered address were their homes regardless of the fact that they had not been built lawfully. Nothing had been done for decades to remove the applicants. For people as desperately poor and outcast as them the expectation that the inactivity would last was a basis to build lives on. The applicants had the right to respect for their homes and deprivation of one’s home was a most extreme form of interference with this right.", "86. The applicants considered that the real aim pursued by the authorities was to free the terrain so that it could be leased or sold to a private entrepreneur for development and to “rid” the district of an unwanted Roma “ghetto”. Those were illegitimate aims.", "87. In the applicants’ view, the Government’s attempt to use the neighbours’ protests to justify the eviction order was based on the fallacious assumption that the disorder and lack of sanitation complained of could not be remedied as long as the applicants’ community was present. This was to assume that a Roma community such as the applicants’ inherently produced disorder and pollution and could not be controlled by ordinary policing. The racist nature of this assumption which underlay the Government’s argument was evident. While the issues raised in complaints by ethnic Bulgarian neighbours were serious and a cause for concern, it was unacceptable to seek to solve them through collective expulsion, without regard to individual conduct. That would be nothing less than collective punishment on the basis of ethnic origin.", "88. The applicants stated that the authorities had never considered the applicants’ personal circumstances, never consulted them before issuing a removal order and never considered proportionality even in theory. On the contrary, the authorities had openly and publicly asserted that the applicants had no rights at all and that it had been necessary to defend the rights of the non-Roma inhabitants who wished to have the “ghetto” removed. On two occasions, in 2006 and in 2008, the authorities had sought to evict the applicants, despite the September 2005 agreement under which they had undertaken to provide shelter to the families concerned. That agreement had always remained a dead letter. The history of the problem and the authorities’ actions since 2005 had shown beyond doubt that the majority public opinion and the authorities were in favour of eviction, and that talk about a consensus towards helping the Roma families concerned was without substance.", "89. The applicants protested against the Government’s reliance on private complaints in terms that disclosed clear racist prejudice, presenting the problems in the neighbourhood as rooted in the racial opposition between Roma and Bulgarians and seeking the unconditional “return of the Roma to their native places”. Moreover, in the applicants’ view, the Government’s submissions (see paragraphs 92-99 below) were replete with statements disclosing racial prejudice, such as their admission that the authorities sought to avoid “concentration of large groups of Roma population”, as if Roma people were a pest of sorts which needed to be kept to a minimum. The Government assumed gratuitously that Roma people had fraudulently taken advantage of municipal housing, or would do so. They relied on racist initiatives such as a petition condemning “discrimination against the Bulgarians”. The Government’s appeal to the Court to bow to majority public opinion, which was in favour of evicting the applicants, not only conflicted with fundamental human rights principles but also showed that the Bulgarian authorities were sensitive to, if not supportive of, public prejudice against the Roma.", "90. In the applicants’ view, the Government’s argument that demolition of illegal constructions happened everywhere in Bulgaria, regardless of ethnic origin, was not convincing. The examples given by the Government concerned business properties or holiday retreats owned by persons far wealthier than the applicants, not poor persons’ only homes. The relevant question was whether the authorities would order the collective eviction of a non-Roma community of two hundred persons, including children, without compensation and without alternative shelter, leaving them on the street. In the applicants’ view, it was inconceivable that this should happen. The manner in which the applicants were being treated was clearly linked to their ethnic origin.", "91. Lastly, the applicants stated that the houses they had built and their belongings were “possessions” within the meaning of Article 1 of Protocol No. 1 despite the fact that they did not own the land.", "2. The Government", "92. The Government submitted that while for many years nothing had been done to remove the Roma families who started settling in Batalova Vodenitsa towards the end of the 1960s, it had always been clear that they were occupying State and municipal land unlawfully. They did not own the land and could not claim ownership on the basis of the fact that they had built makeshift houses without authorisation and in violation of building rules. The applicants could not claim, therefore, that they had an expectation to be allowed to remain in Batalova Vodenitsa. For long periods the authorities had not implemented the urbanisation plans for the area, other matters having had priority. This delay did not mean that the applicants’ illegal presence was tolerated.", "93. The matter had become urgent when citizens living in the neighbourhood had started complaining about the Roma families’ behaviour. In support of the above, the Government submitted copies of handwritten complaints by non-Roma residents of Batalova Vodenitsa. Most of them were addressed personally to the Government’s agent in the proceedings before the Court and were apparently drafted for the purposes of the present proceedings on unspecified dates at the end of 2008 or the beginning of 2009. They were entitled “complaints by the Bulgarians living in Batalova Vodenitsa” and started with the following words: “We complain against the Roma ...”. The grievances made were that the Roma disposed of their waste in various places, thus littering the area, kept animals, dried their laundry by hanging it out for everyone to see, engaged in stealing and disorderly and aggressive behaviour, drank and used drugs. According to the text of the complaints, the signatories appealed to have the Roma removed and “returned to their native places”, although on visual examination of the copies submitted to the Court it appears that these last words may have been added by the author of the main text, either before or after the text had been signed by the signatories.", "94. The Government further maintained that the relevant authorities had established that the applicants’ makeshift buildings posed a sanitary risk, might collapse and did not meet fire safety requirements. Having considered the matter, the Sofia municipality had decided to remove the Roma settlement and go ahead with the plans to construct blocks of flats in the area. Referring to the Court’s judgment in the case of Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII, the Government considered that had the Bulgarian authorities remained inactive in the face of the safety and sanitary risks that the applicants’ settlement represented, they would have risked liability under the Convention for failure to discharge their positive obligation to protect life and health.", "95. The Government further stated that problems in the integration of the Roma population were not uncommon and Bulgaria was not alone in this respect. The authorities had demonstrated their determination to secure equal rights for all citizens, irrespective of their origin. The National Council for Cooperation on Ethnic and Demographic Issues, which included representatives of non-governmental organisations and was presided over by the Director of Ethnic and Demographic Matters at the Council of Ministers, had dealt with the problems in Batalova Vodenitsa. Detailed plans to help Roma families find housing and jobs existed and were in the process of implementation in many towns in the country, including districts of Sofia. A relevant example was the creation in June 2008 of a special working group at the Sofia municipality to deal with the demolition of social dormitory buildings in another area, known as Selishte na Stroitelia and Vietnamski Obshtezhitia. The buildings had been damaged by their lawful and unlawful occupants, predominantly of Roma origin, and the working group was seeking possibilities of finding housing for them in separate districts of Sofia, “in order to avoid large concentrations of Roma people”.", "96. The Government thus stated that the relevant authorities were working to find a lasting solution to the housing problem of the Roma families concerned before reclaiming the municipal land they occupied in Batalova Vodenitsa.", "97. The Government also submitted that the decision to remove the applicants’ houses was motivated solely by the need to enforce the law on illegal constructions and put an end to a situation which posed a sanitary risk and disfigured the city landscape. The authorities in any European capital would do as much. The applicants were not entitled to privileged treatment because of their ethnic origin or traditional lifestyle. They were not being treated in a discriminatory manner, measures against illegal occupation being undertaken regardless of the ethnicity of the persons concerned. The Government submitted information about orders for the demolition of illegal constructions in different parts of the country. Moreover, in their view, the one-sided presentation of the problems of the Roma population in Bulgaria by their self-appointed representatives seeking popularity stirred tension and provoked reactions from other ethnic groups. The Government were against such attempts to incite ethnic hatred. The reality was that there were two sides in the dispute: the lawful residents of the neighbourhood and the applicants, who occupied municipal land without title and “whose way of life is in contradiction with public norms and rules and in this sense generates tensions in society”.", "98. The Government also appealed to the Court to take into account, in deciding the case, the reaction a finding of a violation of the Convention would prompt in Bulgarian society, precisely because Bulgarian society expected to see the law applied equally to persons from all ethnic groups.", "99. Lastly, noting that for short periods four of the applicants had registered at addresses outside Batalova Vodenitsa, the Government submitted that such changes could also be observed in respect of other Roma inhabitants. Therefore, in the Government’s view, the supposition could be made that some of the persons concerned had “acquired flats”, sold them and then again registered in Batalova Vodenitsa with the aim of obtaining municipal flats.", "B. The Court’s assessment", "100. Considering that the central issues in the present case concern the applicants’ rights under Articles 8 and 14 of the Convention, the Court will examine these complaints first.", "1. Article 8 of the Convention", "101. This provision reads, in so far as relevant:", "“1. Everyone has the right to respect for his private and family life, his home ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "(a) Whether the enforcement of the removal order would interfere with rights protected by Article 8", "102. It is undisputed that the applicants and their families have lived for many years in the makeshift houses they or their ancestors built on State or municipal land in Batalova Vodenitsa. While for unspecified limited periods four of the applicants had their registered addresses outside that area, it is not disputed that they returned (see paragraphs 8, 12, 17, 43 and 99 above). The Government’s suggestion that some of the Roma living in the area may have registered there with the aim of obtaining municipal flats is not supported by any evidence.", "103. In these circumstances, the applicants’ houses in Batalova Vodenitsa are their “homes” within the meaning of Article 8. This classification is a matter of fact independent of the question of the lawfulness of the occupation under domestic law (see McCann v. the United Kingdom, no. 19009/04, § 46, 13 May 2008). It follows that the applicants’ complaints concern their right under Article 8 to respect for their homes.", "104. There is no doubt that the 2005 removal order, if enforced, would result in the applicants’ losing their homes and that, therefore, there would be an interference with their right to respect for their homes (see Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009).", "105. Having regard to the fact that the case concerns the expulsion of the applicants as part of a community of several hundred persons and that this measure could have repercussions on the applicants’ lifestyle and social and family ties, it may be considered that the interference would affect not only their “homes”, but also their “private and family life” (see, similarly, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001 ‑ I).", "106. The Court must examine, therefore, whether such interference, if it materialises, would be lawful and necessary in a democratic society for the achievement of one or several of the legitimate aims set out in paragraph 2 of Article 8.", "(b) Lawfulness", "107. The Court is satisfied that the impugned removal order has a valid legal basis in domestic law (see paragraphs 29 and 66 above).", "108. The question whether the applicable domestic legal framework and procedures meet the relevant Convention requirements appears to be in dispute. The Court will examine it below in the context of the question whether the interference, if it materialises, would be justified under Article 8 § 2.", "(c) Legitimate aim", "109. The applicants alleged in essence that the removal order did not pursue a legitimate aim but was intended to benefit a private entrepreneur and to satisfy racist demands to free the area of an unwanted Roma settlement. The Government’s position was that the aim of the measure was to recover illegally occupied municipal land, realise plans for urban development and put an end to a situation involving safety and health risks which had given rise to complaints.", "110. The Court observes that the order of 17 September 2005 did not contain a statement about its aim. It was based on a legal provision which concerns recovering a real property from persons who are not authorised to hold it (see paragraph 66 above). As it transpires from statements made by the mayor of the relevant district and from the Government’s submissions (see paragraphs 39, 42 and 92 above), putting an end to the unlawful occupation of the land by the applicants was, apparently, the main aim pursued by the impugned order.", "111. As the Court has previously stated, it is legitimate for the authorities to seek to regain possession of land from persons who did not have a right to occupy it (see McCann v. the United Kingdom, cited above, § 48 and Connors v. the United Kingdom, no. 66746/01, § 69, 27 May 2004).", "112. Furthermore, it is undisputed that the Batalova Vodenitsa settlement comprises buildings which do not meet the relevant construction requirements (see paragraphs 10-14 above). While it is true that the Government have not submitted evidence of concrete and imminent construction projects, there was a general intention on the part of the authorities to use the land occupied by the applicants for urban development. In particular, such plans for Batalova Vodenitsa had been made and amended several times in the past, including well before 2005 (see paragraphs 9, 15 and 26 above).", "113. Unlike the applicants, the Court fails to see an indication of improper motives in the authorities’ plans to transfer the land to a private investor for development purposes (see paragraph 27 above). Improvement of the urban environment by removing unsightly and substandard buildings and replacing them with modern dwellings meeting the relevant architectural and technical requirements is a legitimate aim in the interests of economic well-being and the protection of the health and the rights of others and may in principle justify interference with rights under Article 8 of the Convention (see a similar approach in Buckley v. the United Kingdom, 25 September 1996, §§ 62 and 63, Reports of Judgments and Decisions 1996 ‑ IV, and Chapman, cited above, §§ 80-116).", "114. The Court observes, in addition, that it is undisputed that the applicants’ homes lack sewage and sanitary facilities. The Government also alleged that there was a risk of some makeshift houses collapsing. In the Court’s view, while there is no clear evidence of the authorities having considered these issues from the point of view of the needs of those most concerned – the applicants –, it must be acknowledged that there is a legitimate public interest in taking measures to cope with hazards such as those that may stem from an unlawful settlement of makeshift houses lacking sewage and sanitary facilities. Indeed, this was admitted by representatives of the Batalova Vodenitsa residents in the text of the agreement which they signed with the municipal authorities on 28 September 2005 (see paragraphs 11 and 34 above).", "115. Lastly, the Court finds unconvincing the applicants’ argument that the authorities envisaged building plans as a mere pretext and that the real aim of the removal order was nothing more than a racist attempt to rid the area of the presence of all Roma. As noted above, there is sufficient evidence of genuine plans for urban development in the area and health and safety hazards and it is legitimate for the authorities, in the interests of economic well-being and the protection of health and of the rights of others, to seek to address these problems.", "116. It follows that the impugned measure, if enforced, would have a legitimate aim under Article 8 § 2 of the Convention. The salient issue in the present case concerns “necessity in a democratic society” within the meaning of that provision and the Court’s case-law.", "(d) Necessity in a democratic society", "i. General principles", "117. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI).", "118. In this regard, a margin of appreciation must be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The Court has noted the following relevant considerations in this respect:", "(i) In spheres involving the application of social or economic policies, including as regards housing, there is authority that the margin of appreciation is wide, as in the urban or rural planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see, for example, Buckley, cited above, p. 1292, § 75 in fine, and Ćosić, cited above, § 20);", "(ii) On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Since Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community, where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (see, among many others, Connors, cited above, § 82);", "(iii) The procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, and Chapman, cited above, § 92). The “necessary in a democratic society” requirement under Article 8 § 2 raises a question of procedure as well of substance (see McCann, cited above, § 26);", "(iv) Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he has no right of occupation (see Kay and Others v. the United Kingdom, no. 37341/06, § 67-8 and 74, 21 September 2010 and Orlić v. Croatia, no. 48833/07, § 65, 21 June 2011). This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons ( ibid ., §§ 67-69);", "(v) Where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the Court may draw the inference that the State’s legitimate interest in being able to control its property should come second to the applicant’s right to respect for his home ( ibid ).", "ii. Application of those principles to the facts of the case", "α) The Court’s approach in the present case", "119. Seeing that the applicants have been ordered to leave under a final binding removal order but its enforcement has been postponed and a significant period has elapsed since then (see paragraphs 35, 52 and 56 above), the Court must examine separately (i) whether the removal order, as it was issued and reviewed by the courts in 2005-2006, was justified under Article 8 § 2 and (ii) whether other events or measures taken by the authorities since then may affect the Court’s conclusion on what is necessary in a democratic society.", "β) Whether the order of 17 September 2005 was justified under Article 8 § 2", "120. There is no doubt that the authorities are in principle entitled to remove the applicants, who occupy municipal land unlawfully (see paragraph 111 above).", "121. The Court notes, however, that for several decades the national authorities did not move to dislodge the applicants’ families or ancestors and, therefore, de facto tolerated the unlawful Roma settlement in Batalova Vodenitsa (see paragraphs 8, 17 and 92 above). In its view, this fact is highly pertinent and should have been taken into consideration (see, for example, Orlić v. Croatia, § 70, cited above). While the unlawful occupants cannot claim any legitimate expectation to remain, the authorities’ inactivity has resulted in the applicants’ developing strong links with Batalova Vodenitsa and building a community life there. The principle of proportionality requires that such situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.", "122. The impugned removal order was based on section 65 of the Municipal Property Act, under which persons unlawfully living on municipal land can be removed regardless of any special circumstances, such as decades-old community life, or possible consequences, such as homelessness. Under the relevant domestic law, as in force at the time, the municipal authorities were not required to have regard to the various interests involved or consider proportionality (see paragraphs 38, 66 and 72 above). Relying on this legal framework, the municipal authorities did not give reasons other than to state that the applicants occupied land unlawfully and, in the judicial review proceedings, the domestic courts expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived undisturbed in Batalova Vodenitsa (see paragraphs 29-31 and 36-38 above).", "123. In cases such as the present one, this approach is in itself problematic, amounting to a failure to comply with the principle of proportionality. Under Article 8 of the Convention, the removal order against the applicants can only be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued (see the case ‑ law cited in paragraphs 121 and 122 above).", "124. The Court further observes that it is undisputed that the houses of most applicants do not meet basic sanitary and building requirements, which entails safety and health concerns. It considers, however, that in the absence of proof that alternative methods of dealing with these risks have been studied seriously by the relevant authorities, the Government’s assertion that the applicants’ removal is the appropriate solution is weakened and cannot in itself serve to justify the removal order.", "125. Indeed, the Bulgarian authorities have recognised, as can be seen from their long-term programmes and declarations on Roma inclusion and housing problems, as well as from projects realised in other parts of Sofia or elsewhere in the country, that a wide range of different options are to be considered in respect of unlawful Roma settlements. Among those are legalising buildings where possible, constructing public sewage and water-supply facilities and providing assistance to find alternative housing where eviction is necessary (see paragraphs 60-63, 65, 69, 70, 73-83 and 95 above). While some of these options are directly relevant to achieving appropriate urban development and removing safety and health hazards, the Government have not shown that they were considered in the case at hand.", "126. In addition, it is noteworthy that before issuing the impugned order the authorities did not consider the risk of the applicants’ becoming homeless if removed. They attempted to enforce the order in 2005 and 2006 regardless of the consequences and, while they signed an agreement containing an undertaking to secure alternative shelter, they later disregarded it and declared that the risk of the applicants’ becoming homeless was “irrelevant” (see paragraphs 27-42 above). The Court considers, however, that in the specific circumstances of the present case, in view, in particular, of the long history of undisturbed presence of the applicants’ families and the community they had formed in Batalova Vodenitsa, the principle of proportionality required that due consideration be given to the consequences of their removal and the risk of their becoming homeless.", "127. The Court also notes that there is no indication that the construction plans invoked by the Government ever moved close to the stage of implementation. The Government have not shown, therefore, that the land was urgently needed for the public need they mentioned. Proportionality in cases such as the present one is inextricably linked to the use for which the authorities seek to recover the land. In principle, in cases where the domestic authorities have considered these matters, the Court would normally accept their conclusion unless manifestly unreasonable. As there is no evidence of such an attempt, the Court cannot but attach less weight to the alleged importance of the development plans for the land currently occupied by the applicants.", "128. Furthermore, it transpires from statements made by municipal officials and the Government’s submissions before the Court that at the local level, in the present case, the authorities have refused to consider approaches specially tailored to the needs of the Roma community on the ground that such an attitude would amount to discrimination against the majority population. In this connection, in the Court’s view, there would appear to be a contradiction between, on the one hand, adopting national and regional programmes on Roma inclusion, based on the understanding that the applicants are part of an underprivileged community whose problems are specific and must be addressed accordingly, and, on the other hand, maintaining, in submissions to the Court, as the respondent Government did in this case, that so doing would amount to “privileged” treatment and would discriminate against the majority population (see paragraphs 41, 60-63 and 95-98 above).", "129. The latter argument fails to recognise the applicants’ situation as an outcast community and one of the socially disadvantaged groups (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ IV, with further references). Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population. As the Court has stated in the context of Article 14 of the Convention, that provision not only does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them but, moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see D.H. and Others v. the Czech Republic, cited above, § 175; “Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.", "130. The above does not mean that the authorities have an obligation under the Convention to provide housing to the applicants. Article 8 does not in terms give a right to be provided with a home (see, Chapman, cited above, § 99) and, accordingly, any positive obligation to house the homeless must be limited (see O’Rourke v. the United Kingdom (dec.), no. 39022/97, ECHR 26 June 2001). However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases ( ibid .; see, also, mutatis mutandis, Budina v. Russia (dec.), no. 45603/05, 18 June 2009).", "131. It is also true that the applicants themselves have not been active in seeking a solution (see paragraphs 13, 43 and 51 above). It appears that they are reluctant to seek social housing at least partly because they do not want to be dispersed, find it difficult to cover the related expenses and, in general, resent the radical change of their living environment that moving into blocks of flats would entail. However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely (see Chapman, cited above, § 96, which concerns a very specific and relatively narrow positive obligation to facilitate itinerant way of life which is determinative of an identity).", "132. The relevant point in this case is, nonetheless, that the disadvantaged position of the social group to which the applicants belong could and should have been taken into consideration, for example, in assisting them to obtain officially the status of persons in need of housing which would make them eligible for the available social dwellings on the same footing as others. This has been recognised by the Bulgarian authorities in their national and regional programmes but that did not result in practical steps being taken in the present case (see paragraphs 55-59 and 61-65 above).", "133. In general, the underprivileged status of the applicants’ group must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. This has not been done in the present case.", "134. In sum, the Court finds that the respondent Government failed to establish that the removal order of 17 September 2005 was necessary in a democratic society for the achievement of the legitimate aims pursued.", "γ) Whether events since 2005-2006 would render the enforcement justified", "135. It is true that in the years since September 2005 the fate of the Batalova Vodenitsa area has been the subject of negotiations, discussions and examination by consultative bodies such as the National Council for Cooperation on Ethnic and Demographic Issues. The Council apparently recommended consideration of alternative modes of action and a more balanced solution. The Government and the local authorities in Sofia declared on several occasions that they planned to find a solution to the applicants’ housing problem by providing them with alternative shelter (see paragraphs 33, 44, 55, 57 and 96 above). It is also true that several programmes on Roma housing problems have been adopted at the national and regional level in Bulgaria (see paragraphs 60-63 above) and that, apparently, some projects in other locations have been undertaken. All this may suggest that the authorities are seeking a proportionate approach, combining the enforcement of building planning rules with positive measures to assist the individuals concerned.", "136. The Court cannot but observe, however, that these discussions and programmes were not part of a formal procedure before a body in which power to modify the impugned order for the applicants’ removal was vested and, in any event, they did not result in any legal act concerning the applicants concretely. The order of 17 September 2005 has remained in force and is still enforceable. Although the mayor of the relevant district suspended the applicants’ removal temporarily, it is significant that, as it appears from the material submitted to the Court, there has been no decision to re-examine the order of 17 September 2005 or tie its enforcement to the implementation of appropriate measures to secure respect for the applicants’ Article 8 rights (see paragraphs 41, 45-48 and 56 above).", "137. In these circumstances, it cannot be considered that the above-mentioned post hoc discussions have secured the fair decision-making process that is indispensable for the discharge of the respondent State’s duties under Article 8 of the Convention or that “necessity in a democratic society” was otherwise demonstrated.", "138. The Government have also argued that repeated complaints by neighbours, including in 2008 and 2009, would justify the enforcement of the removal order (see paragraphs 93 and 97 above).", "139. It appears undisputed between the parties that, before 2005 and since then, there have been repeated complaints by residents of blocks of flats adjacent to the land at issue in which two main issues were raised: (i) sanitary risks mainly related to the lack of sewage and the fact that the applicants’ homes do not meet building requirements and (ii) offences and disturbances of public order allegedly committed by the residents of the unlawful settlement in Batalova Vodenitsa (see paragraphs 20-25, 42 in fine, 56, 93 and 97 above).", "140. On the first issue, the Court has already found that health risks of that kind could in principle justify the impugned measures, had it been demonstrated – which is not so in the present case – that the removal order respected the principle of proportionality (see paragraphs 120-134 above).", "141. As to the second issue, the Court accepts that the authorities were under a duty to act in response to the neighbours’ allegations about offences and disturbances in the area. It was their responsibility to apply the law and, if necessary, investigate the alleged offences and sanction the individuals concerned. The respondent Government have not provided any evidence of such action having been taken.", "142. Some of the neighbours’ complaints, however, also contained illegitimate demands, such as to have the applicants “returned to their native places” (see paragraph 93 above). It is also clear that the situation that obtained was characterised by tension that risked fuelling animosity between two social and ethnic groups. It was therefore important to act in such a manner that the authorities were not seen as being influenced by hostile attitudes of one group against another. However, the Court is not convinced that these subsequently raised illegitimate demands played any role in the initial decision-making process for the issuing of the removal order in question.", "143. In sum, the events since the removal order was issued and reviewed by the domestic courts do not provide a basis for a conclusion that its future enforcement would be justified.", "(e) Conclusion as regards Article 8", "144. The above considerations are sufficient for the Court to reach the conclusion that there would be a violation of Article 8 in the event of enforcement of the deficient order of 17 September 2005 as it was based on legislation which did not require the examination of proportionality and was issued and reviewed under a decision-making procedure which not only did not offer safeguards against disproportionate interference but also involved a failure to consider the question of “necessity in a democratic society”.", "2. Article 14 in conjunction with Article 8", "145. The parties’ submissions are summarised in paragraphs 85-99 above. In essence, the applicants complained that the removal order was based on racist attitudes against them and the Government maintained that the removal order was justified and that the applicants could not claim a privileged treatment.", "146. It is undisputed that Article 14 applies in the present case, seeing that discrimination is alleged in relation to the applicants’ right to respect for their homes and private life and, therefore, in respect of issues falling within the ambit of Article 8 (see, for example, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Larkos v. Cyprus [GC], no. 29515/95, § 28, ECHR 1999 ‑ I).", "147. The Court observes, however, that the issue before it is whether a hypothetical future enforcement of the removal order would be discriminatory. The Court cannot speculate about the timing and modalities of any such enforcement and assess the Article 14 issue on the basis of a hypothetical scenario. For example, it cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice.", "148. The Court also notes that the main argument of the applicants about discrimination concerns the allegation that the authorities were unduly influenced by hostile attitudes and complaints from neighbours. The Court has dealt with relevant aspects of these issues in the context of proportionality under Article 8 (see paragraphs 128-143 above).", "149. In these circumstances, the Court finds that no separate issue arises under Article 14 with regard to any future enforcement of the removal order of 17 September 2005.", "3. Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1", "150. The applicants considered that in the event of enforcement of the order of 17 September 2005 there would also be violations of Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1. The Government disputed this.", "151. The Court, noting that the enforcement of the order of 17 September 2005 has been suspended, cannot speculate about the modalities of any future enforcement and cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice or would not offer alternative shelter where appropriate. Nor can it assume that the authorities would damage their belongings or would not allow time to move them. The municipal authorities had stated their intention to issue a separate demolition order in the event of enforcement of the impugned removal order (see paragraph 31 above).", "152. In any event, the Court has already found that the enforcement of the removal order of 17 September 2005 would violate the applicants’ rights under Article 8 on the grounds that it was issued and reviewed in a manner which did not secure the minimum procedural safeguards. In these circumstances, there is no reason to doubt that the respondent Government would comply with the present judgment and would not act in violation of the Convention by removing the applicants on the basis of a deficient order.", "153. For the reasons set out above, the Court finds it unnecessary to examine the above complaints separately.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "154. The applicants alleged that, apart from any violation of the Convention that would occur in the event of the future enforcement of the removal order, the authorities had already violated their rights under Articles 3, 8, 13 and 14.", "155. In particular, in their view, the unjust and arbitrary manner in which the authorities had acted – seeking summarily to remove them after decades of tolerating their presence, disregarding signed agreements and legitimate concerns, moving on the basis of racially biased complaints by non-Roma inhabitants and demonstrating clear indifference to the applicants’ becoming homeless, amounted to treatment of such gravity that it could be characterised as degrading. That treatment was in any event discriminatory.", "156. The Government considered that all the actions complained of were lawful and justified under the Convention.", "157. The Court accepts that the applicants’ situation in September 2005, when they and their families were given only several days to leave their decades-old homes, was unenviable. The Court has already found that Article 8 would be violated in the event of the removal order of 17 September 2005 being enforced (see paragraph 144 above).", "158. It is further relevant that the authorities accepted to suspend the enforcement of the removal order. The Court finds unconvincing the applicants’ argument that, despite the above, they were subjected to treatment beyond the threshold of severity required under Article 3 or suffered a separate violation of Article 8 as a result of the very fact that the authorities announced their decision to remove them and made preparatory moves. It should not be overlooked that the applicants knew at all relevant times that they occupied municipal land unlawfully and could not expect to remain there indefinitely.", "159. It is true that serious cases of discriminatory statements by public officials or failure by the authorities to react to racist statements may constitute violations of Article 14 or even Article 3 (see Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 111-14, ECHR 2005 ‑ VII (extracts), with further references). The Court cannot exclude furthermore that a failure to react to discriminatory attitudes and statements could amount to a violation of Article 14 in conjunction with other Convention provisions, including Article 8.", "160. The Court notes, however, that that the applicants’ main complaint concerns a potential violation of the their rights under Article 8. As regards the attitudes and statements complained of, Bulgaria has put in place legal protection mechanisms, such as the possibility to file complaints to the commission set up under the Protection against Discrimination Act or directly bring judicial proceedings. This mechanism apparently functions in practice as seen from relevant examples (see paragraph 71 above) and the applicants have not claimed that they could not resort to it. It cannot be said, therefore, that the national legal system left the applicants defenceless. They could bring legal proceedings with a view to having incidents of hate speech examined and obtain an authoritative condemnation of any racist statements, and compensation.", "161. In sum, the Court, having examined in detail the complaints concerning the future enforcement of the removal order of 17 September 2005 (see paragraphs 100-153 above), finds that the applicants have not established convincingly that the additional complaints formulated by them give rise to a separate issue under the Convention.", "III. APPLICATION OF ARTICLE 46 OF THE CONVENTION", "162. The Court finds it appropriate to consider the present case under Article 46 of the Convention, which reads as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "163. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order. Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I).", "164. Contracting States’ duty in international law to comply with the requirements of the Convention may require action to be taken by any State authority, including the legislature (see Viaşu v. Romania, no. 75951/01, 9 December 2008).", "165. In view of the relevant strict provisions in the Municipal Property Act, noted in the present judgment (see paragraphs 122 and 123 above), and the fact that the order of 17 September 2005 is still enforceable in Bulgarian law, it appears necessary to assist the respondent Government in the execution of their duty under Article 46 of the Convention.", "166. In particular, in view of its findings in the present case, the Court expresses the view that the general measures in execution of this judgment should include such amendments to the relevant domestic law and practice so as to ensure that orders to recover public land or buildings, where they may affect Convention-protected rights and freedoms, should, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality.", "167. In so far as individual measures are concerned, the Court is of the view that the execution of the present judgment requires either the repeal of the order of 17 September 2005 or its suspension pending measures to ensure that the authorities have complied with the Convention requirements, as clarified in the present judgment.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "168. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "169. The applicants claimed 10,000 euros (EUR) each for non-pecuniary damage. They stated that they had suffered from the fact that they had to live for years under the threat of homelessness and from the alleged racial bias in the authorities’ actions. The applicants requested that any award of damages should be made payable to the bank account of the Bulgarian Helsinki Committee.", "170. The Government, objecting to the allegations about discrimination and racist attitudes on the part of the authorities, considered that the finding of a violation of the Convention would constitute sufficient just satisfaction.", "171. In the present case, the Court found that there would be a violation of Article 8 of the Convention if the order of 17 September 2005 were enforced. In most cases concerning violations that have not already occurred, the Court considered that the finding of a violation was sufficient just satisfaction (see, mutatis mutandis, Raza v. Bulgaria, no. 31465/08, § 88, 11 February 2010, with further references). It sees no reason to reach a different conclusion in this case. Furthermore, it is relevant that, as noted above, the applicants themselves have not been very active in seeking a solution that would allow them to put an end to their unlawful occupation of land in Batalova Vodenitsa (see paragraphs 13, 43 and 51 above).", "B. Costs and expenses", "172. The applicants claimed EUR 5,786.82 for costs and expenses relating to the domestic proceedings and the proceedings before the Court. This sum included legal fees for eighty-one hours of legal work at the hourly rate of EUR 70 and court fees in the amount of EUR 116.82. The applicants submitted copies of a legal fees agreement, a time sheet and receipts. They requested that any sums awarded under this head should be paid directly into the bank account of the Bulgarian Helsinki Committee, the organisation which provided them with legal assistance.", "173. The Government considered that the claim was excessive as the hourly rate claimed allegedly exceeded several times the usual rates charged by lawyers in Bulgaria.", "174. Having regard to the relevant criteria and considering that the number of hours of legal work claimed appears to be excessive, the Court awards EUR 4,000 in respect of costs and expenses.", "C. Default interest", "175. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The individual applicants are mostly travellers ( gens du voyage ). The movement ATD Quart Monde ( the applicant association [known internationally as ATD Fourth World] ) is an association established under the laws of France, having its registered office in Paris. Under Article 2 of its constitution, “[t]he Movement ATD Quart Monde brings together individuals, families and population groups who refuse the fatality of the poverty in which they are condemned to live, and, together with them, men and women, of all origins, who share the same refusal ...”.", "A. Background to the case", "1. The Val d ’ Oise département", "8. The département of Val d ’ Oise has been home to travellers for very many years. A survey carried out in 2001 by the Association Départementale Voyageurs-Gadjé (ADVOG) identified the presence of 2, 500 mobile homes, representing a population of about 10, 000 individuals, of which 17% belonged to nomadic families, 42% to sedentary families and 41% to semi-sedentary families, also described as “forced itinerant” or “forced sedentary”.", "The “forced itinerant” families wish to settle down but are obliged to keep moving as and when they are evicted. The “forced sedentary” families remain nomadic to some extent but are obliged to settle on a particular site when there is no great risk of eviction. These families often remain, when they are evicted, within a specific area covering several municipalities, not straying too far from focal points such as the school attended by their children, the hospital where the elderly are treated or centres of economic activity.", "As regards the sedentarised families, they are owners, tenants or occupiers of land (private or municipal ) on which they live permanently, and families remaining encamped on a site that is normally reserved for short stays (Source : Plans départementaux d ’ Aide au Logement des Personnes défavorisées du Val d ’ Oise (PDALPD) 2004-2007 and 2008-2010).", "9. The Val d ’ Oise has two regulatory arrangements aimed at travellers:", "(a) The “ département -level travellers ’ reception and accommodation programme ” ( schéma départemental d ’ accueil et d ’ habitat des gens du voyage; under the so-called “Besson Acts” of 31 May 1990 and 5 July 2000 ... ), which governs, depending on the needs and existing encampment capacity, the nature, location and capacity of the encampment facilities to be created in municipalities of over 5, 000 inhabitants.", "(b) The “ département -level accommodation action plan for persons in need ” ( plan départemental d ’ action pour le logement des personnes défavorisées, PDALPD) ( provided for by the above-mentioned Law of 31 May 1990 and the Law against exclusion of 29 July 1998), which takes into account the problems raised by sedentary and semi-sedentary families.", "10. Pursuant to the above-mentioned Law of 5 July 2000, and after the annulment of the first travellers ’ reception and accommodation programme by the administrative courts, a new programme was adopted in November 2004 for the Val d ’ Oise in respect of 2004-2010. It provided for the creation, by the 53 municipalities of over 5, 000 inhabitants in that département, of 1, 035 caravan spaces in encampment areas, including 219 already existing spaces, with 70% State financing.", "11. The PDALPD 2004-2007 plan for the Val d ’ Oise, adopted in June 2004 and following the previous 2000-2003 plan, stipulated that the actions aimed at travellers should take two forms : first, the creation of encampment areas for traveller families and, second, the provision of family rental accommodation, to be used by sedentary or semi-sedentary families, as already provided for by the previous plan. That accommodation took the form of land, with or without individual houses, on which families could place their caravans to be used for permanent residence. The circular of 21 March 2003 ( concerning the implementation of the housing policy and the programming of State financing ) provides for the State financing of the family rental accommodation under the same conditions as encampment areas ( at 70% of the pre-tax cost within the ceiling); actual houses can be financed with the help of the rental housing loan for social integration ( prêt locatif aidé d ’ intégration, PLAI).", "2. Municipality of Herblay", "12. More than 2,000 travellers live in the area covered by the municipality of Herblay (approximately 10% of its population), occupying between 400 and 500 caravans, and most of them have been there for many years. According to the Government, around four-fifths of those mobile homes are in breach of the land-use plan.", "13. In 2000 an urban and social study ( maîtrise d ’ œuvre urbaine et sociale, MOUS) was initiated with a view to providing alternative accommodation for the travellers who had settled in the municipality (created by circular no. 3465 of 22 May 1989, the aim of the study is to promote access to housing for individuals and families in difficulty). The study gave rise, after a social diagnosis by the ADVOG, to a memorandum of understanding dated 23 November 2004 between the prefect of the Val d ’ Oise, the president of the département council and the mayor of Herblay. The project provided for the creation of four sites, representing a total of 26 family plots. In September 2005 the land-use plan in respect of those sites underwent a simplified revision procedure. The first site, containing eight plots, or 24 spaces, was opened in December 2008.", "14. Under the 2004-2010 travellers ’ accommodation programme for the département ( see paragraph 10 above ) the municipality of Herblay was exempted from the requirement to provide a site for nomadic travellers because of the number of settled families living in mobile homes and the study that was underway ( see paragraph 13 above ).", "15. Pursuant to section 9 of the above-cited Law of 5 July 2000, the mayor of Herblay issued in July 2003, and again in January 2005, orders prohibiting the encampment of travellers ’ mobile homes throughout the municipality.", "B. The present application", "16. The applicants, who are all French nationals, had been living in Herblay, in the locality of “Bois du Trou-Poulet”, for many years and some of them had been born there ... They were part of a group of twenty-six families (42 adults and 53 children, making a total of 95 people) who had settled on the land. Some of the applicants were owners but most were tenants, while others were squatters. According to the land-use plan published in May 2003, the plots of land in question were situated in zone ND, corresponding to a “ natural area qualifying for protection on account of the quality of its landscape and its various characteristics ”. The plots had also been classified as ND in the earlier land-use plans. In the zone NDc, where the applicants had settled, camping and caravanning were allowed provided the site was suitably equipped and the persons concerned had the requisite authorisation.", "1. Eviction procedure", "( a) Bailiff ’ s official report", "17. On the application of the municipality of Herblay ( the “municipality” ) and in accordance with a decision of the president of the Pontoise tribunal de grande instance dated 19 November 2003, two bailiffs, accompanied by police officers, visited the site on 12 February 2004 in order to take note of the occupation of the land and establish the identity of the occupiers. The bailiffs drew up an official report in which they recorded, for each part of the land, the identity of the occupiers and their type of accommodation ( caravans, bungalows, huts, permanent buildings ). The report stated in particular as follows : “the whole of the site in question is cluttered with a large number of pieces of vehicles, engines, spare car parts and various rubbish in the wooded area around the sites where we recorded the occupiers ’ identities”.", "( b) Injunction proceedings", "18. On 30 April and 11 May 2004 the municipal authorities brought civil proceedings against forty individuals, including the applicants, before the urgent-applications judge of the Pontoise tribunal de grande instance, seeking a ruling that the land was being unlawfully occupied and that the defendants had “illegal placed mobile homes and constructions thereon”, together with an injunction requiring them to remove all their vehicles and mobile homes together with any constructions from the site, on pain of a penalty of 200 euros (EUR) per day, and stipulating that the municipality would be entitled, after a period of two months from the issuance of the injunction, to carry out the eviction and clearance itself with police assistance.", "19. The hearing took place on 18 June 2004. In a decision of 2 July 2004 the urgent-applications judge dismissed the municipality ’ s application. After noting that the zone NDc, occupied by the defendants, allowed for camping and caravanning, but that the encampment of caravans for more than three months was subject to authorisation unless the land was specially equipped, which was not the case here, the judge considered it sufficiently established that the defendants had been occupying the land for many years, long before the publication of the land-use plan, that some of them had a regular water or electricity supply and that the long-standing toleration of the situation by the municipality, while not amounting to a right, precluded a finding of urgency or of a manifestly unlawful nuisance, which alone could bring the matter within the jurisdiction of the urgent-applications judge.", "20. The judge further observed that, with the annulment of the travellers ’ reception and accommodation programme ( see paragraph 10 above ), the municipality was required by the Law of 5 July 2000 to provide a site for itinerant travellers. Lastly, having regard to the bailiffs ’ official report, the judge ordered the defendants to clear the land of all abandoned vehicles and rubbish within a period of two months, on pain of a fine of EUR 200 per day, and ruled that after that period the municipality would be entitled to have the land cleaned up at the defendants ’ expense.", "( c) Proceedings on the merits", "( i) Judgment of the tribunal de grande instance", "21. In September 2004 the municipality brought an action against forty individuals, including the applicants, in the Pontoise tribunal de grande instance, reiterating the requests it had made to the urgent-applications judge. In a judgment of 22 November 2004 the court granted the authorities ’ requests. Two other individuals (including one of the applicants) also intervened in the proceedings voluntarily. The defendants and interveners claimed that they had been living on the Bois du Trou-Poulet site for many years, since before the publication of the land-use plan, in a zone where the development of land for camping and caravanning was authorised. They relied on the right to housing, as a constitutional principle, and on the Connors v. the United Kingdom judgment (no. 66746/01, 27 May 2004), and referred to the obligation for the municipality to make land available for travellers. In the alternative, they said that they would agree to judicial mediation.", "22. The hearing took place on 27 September 2004. In a judgment of 22 November 2004 the court upheld the municipality ’ s claims. It began by finding that the land-use plan, published in May 2003, was automatically enforceable provided it had not been declared null and void, and that the land occupied by the defendants was in the zone NDc, allowing in principle for the land to be equipped for camping and caravanning, but that the land had not been developed in compliance with the rules of the Town and Country Planning Code ( see Article L. 443-1 of the Code). The court held that the defendants, in setting up their caravans, mobile homes and cabins on the land in the absence of a permit or a decision by the prefecture in their favour, had breached the land-use plan, and that the supply of electricity by EDF (Électricité de France) did not confer any rights. After stressing the importance of the right to housing and its legislative and constitutional basis, the court took the view that, while the legislature and the public authorities had to use their best endeavours to guarantee this right as far as possible, it could not be granted “without regard for legality or in breach of the applicable rules”.", "23. The court then analysed the above-cited Connors judgment and found that the situation before it was different, since there was no question here of a summary eviction procedure ( unlike Connors ), or any lack of procedural safeguards, because the defendants had been able to raise all the arguments that they considered necessary for their defence before an “independent tribunal”, ruling on the merits in compliance with all the procedural rules applied in France. The court found that it did not consider that it was breaching Article 8 of the Convention in giving a decision after responding to the defendants ’ submissions and that, in a State governed by the rule of law, it would be unthinkable for the enforcement of a court decision to amount to “inhuman and degrading treatment”. It added that there was no doubt that if the decision was not voluntarily enforced by the defendants, the municipal authorities, the officers of the court and the State ’ s enforcement bodies would ensure that enforcement was carried out in accordance with the principle of human dignity.", "24. As regards the obligation of the municipality, after the annulment of the travellers ’ reception and accommodation programme, to make land available for travellers, the court referred to a letter from the prefect of the Val d ’ Oise to the mayor showing that the municipality was considered to have fulfilled the obligations imposed by the Law of 5 July 2000. The court further observed that the fact that the defendants had been occupying the land for such a long time might call into question their status as “travellers” and that the département -level programmes were aimed at the nomadic population, not sedentary communities which had been settled in the same place for ten or sometimes twenty years. It rejected the request for judicial mediation on the ground that it would have little chance of success, in view of the context and the large number of defendants.", "25. Consequently, the court ordered the defendants and interveners to remove all vehicles and mobile homes from the land they were occupying, and to demolish any erections thereon, within three months from the date of service of the judgment, failing which they would be fined EUR 70 per person for each day of non-compliance, and held that, after that time-limit, the municipality itself would be entitled to carry out the removal and demolition at the defendants ’ expense and with police assistance. The court also ordered them to pay EUR 50 to the municipality in respect of irrecoverable expenses. It took the view that, having regard to the context of the dispute and the lack of urgency resulting from a situation that had existed for many years, it was not necessary to order the provisional enforcement of the judgment.", "( ii) Judgment of the Court of Appeal", "26. Thirty-six of the defendants, including the applicants, lodged an appeal with the Versailles Court of Appeal. The applicant association filed submissions as a voluntary intervener.", "27. The hearing was held on 8 September 2005. In a judgment of 13 October 2005 the Court of Appeal declared the applicant association ’ s voluntary intervention admissible and upheld the judgment, except in respect of a couple ( who are not applicants ), for whom it ordered an expert ’ s report in order to ascertain the conditions of their accommodation and the conformity thereof with the land-use plan.", "28. The Court of Appeal first found that the defendants ’ occupation of the land breached the land-use plan, which was automatically enforceable, and responded as follows to the arguments raised :", "“While the right to housing is a constitutional principle, and while Articles 3 and 8 of the Convention ... guarantee respect for each person ’ s private and family life and protect everyone from inhuman and degrading treatment, these superior principles have not in this particular case been impaired, as the municipality ’ s action had a legal basis derived from compliance with regulations that are indiscriminately binding on everyone, thus sufficing to establish the public interest that is necessary for the exercise of such action, giving rise to adversarial proceedings at first instance and on appeal, and as the enforcement of a court decision given with due regard for defence rights cannot constitute the alleged degrading and inhuman treatment.", "The long duration of the occupation does not create rights, neither does the tolerance, however lengthy, of such occupation in breach of the provisions of the municipality ’ s land-use plan. It is therefore pointless for certain appellants to rely on the schooling of their children, which is not necessarily undermined, or on the irrelevant fact that they hold relocation record books ( carnets de circulation ), which do not exempt them from complying with the regulations.", "It is equally pointless for the appellants to allege bad faith on the part of the municipality or that is has breached its statutory obligations under the Besson Act.", "It transpires from a letter from the prefecture of the Val d ’ Oise dated 18 May 2004 that the municipality has fulfilled its obligations under the Law of 5 July 2000 concerning travellers, who are considered to be nomadic and not sedentarised, which is not the case for the appellants, who have vigorously asserted their sedentarisation and emphasised the length of their occupation ... ”", "29. The Court of Appeal further confirmed the rejection of the judicial mediation that had been sought, on the ground that it did not appear to be the appropriate response “ to a resolution of the dispute through which the municipality strives to ensure compliance by and for all its inhabitants with laws and regulations”. Lastly, it dismissed the claim for damages submitted by the municipality and ordered the appellants to pay the sum of EUR 50 each in respect of the costs of the appeal proceedings.", "The applicants stated that after that judgment had been delivered they received daily visits from an official of the municipality who, referring to the coercive fine, urged them to leave the site.", "( iii) Proceedings before the Court of Cassation", "30. The applicants, in their own names and on behalf of their minor children, together with the applicant association, applied for legal aid from the legal aid board at the Court of Cassation so that they could lodge an appeal on points of law against the judgment of 13 October 2005.", "31. On 4 and 5 July 2006 the legal aid board issued a series of decisions dismissing their applications on the ground that no ground of appeal on points of law could be raised against the impugned decision within the meaning of section 7 of the Law of 10 July 1991. In a series of identically worded decisions of 23 November 2006, the judge delegated by the President of the Court of Cassation dismissed their appeals against those decisions ...", "32. On 16 January 2007 the applicants filed a declaration with the Court of Cassation ’ s Registry in which they withdrew their appeals on points of law. A decision of 7 September 2007 took note of their withdrawal.", "2. Undertaking of an urban and social study", "33. Following the Court of Appeal ’ s judgment, the authorities decided, in the context of the département -level accommodation action plan for persons in need (see paragraph 11 above) to undertake an urban and social study ( maîtrise d ’ œuvre urbaine et sociale, “ MOUS ” ) concerning all the families involved in the judicial proceedings, in order to determine their individual situations and assess the options for finding alternative accommodation.", "34. Under an agreement with the prefect of the Val d ’ Oise dated 20 February 2006, the National Workers ’ Housing Association ( Société Nationale de Construction de Logements pour les Travailleurs, “ SONACOTRA ” ) was commissioned to carry out a social study concerning all the families in question, in particular to assess their needs in terms of relocation. The study, to be completed within three months, was to provide information for each family on the situation of the land with regard to planning regulations, the current living conditions, the degree of sedentarisation, the family structure and the social situation of the household. The study was also to indicate the relocation arrangements sought by each family ( sedentary housing, mobile-home accommodation or a combination ), the localities where they wished to be rehoused and their desired status ( tenant or owner ). The agreement established the composition of the MOUS steering committee and that of the select steering committee, and indicated that this mission would be fully financed by the State.", "35. The findings of the study were presented by the SONACOTRA to the steering committee on 6 June 2006. At a meeting of 17 November 2006 between the select steering committee and the applicant association, held for the presentation to the latter of the results of the social study, the committee agreed that the families who had in the meantime left Bois du Trou-Poulet would be included in the social study. The representatives of those families were received on 16 January 2007 by the select steering committee and it was agreed that they would be interviewed by the SONACOTRA on 30 January, 1, 2 or 5 February 2007. A supplement to the MOUS agreement was drawn up on 29 January 2007 to provide for an additional social study concerning those families, the cost of which was to be covered in full by the State. Lastly, at the request of the applicant association, one last family which had not been interview in the context of the additional social study was included in the MOUS.", "36. The social studies revealed the following information. Out of the thirty-two households interviewed by the SONACOTRA, the wishes for relocation were divided as follows :", "- One household had moved outside the département at the end of the 2005-2006 school year.", "- One household had been rehoused by the municipality in social housing of the low-rent type.", "- Three households (not applicants ) had received proposals from the municipality for relocation to family plots on which facilities were being installed ( see paragraph 13 above).", "- Five households ( all applicants ) wanted social housing of the low-rent type.", "- Twenty-one households ( of which fourteen are applicants ) wanted to be relocated to a mixed site (buildings and caravans).", "- One household occupying social housing in Angers wished to be rehoused in low-rent housing in the Angers area.", "- Only one household among the applicants, that of Vanessa Ricono, could not be interviewed during the social study.", "37. On 12 November 2007 a new MOUS agreement was signed for a period of eight months for the relocation of five households which had opted for social housing of the low-rent type. The agreement entrusted the SONACOTRA, which had in the meantime become ADOMA, with the responsibility of providing relocation support for those families (information, assistance with compiling applications, introduction of support mechanisms, and follow-up of relocation in practical terms ). The expenses of the MOUS were covered at 100% by the State.", "3. Work on the “11th Avenue ”", "38. In the meantime, in October 2004, construction work on a dual carriageway ( known as the “11th Avenue ” ) began in close proximity to the applicants ’ homes and lasted for over a year. The lawyer for some of the applicants and the applicant association ’ s representative for the Val d ’ Oise sent a number of letters between November 2004 and July 2005 to the mayor of Herblay, to the prefect and to the president of the département council, drawing their attention to the risks caused to the applicants and their children by the construction work. In a number of letters, particularly in April and July 2005, the deputy director general for highway management in the département listed the various safety measures that had been taken under the supervision of a coordinating company (signs, fences, barriers, manhole covers, etc.) and stressed that despite those precautions, the site installations and signs had frequently been the target of vandalism and theft.", "4. Subsequent events", "( a) The applicants ’ situation", "39. At the time of the adoption of the present judgment, the municipality has not enforced the judgment of 13 October 2005. However, the coercive fine, for which no settlement date has been fixed, continues to run in respect of the applicants who have remained at Bois du Trou-Poulet.", "40. The applicants can be divided into three groups :", "( i) Families rehoused in social housing", "Four families were relocated in social housing between March and July 2008 further to the MOUS agreement of 12 November 2007 ( see paragraph 37 above) : Solange Lefèvre, Catherine Lefèvre and her three children, Sandrine Plumerez and her five children, and Sabrina Lefèvre, her partner (not an applicant ) and her three children.", "( ii) Families remaining in Herblay or having returned there", "A number of families remained at Bois du Trou-Poulet or have returned there :", "- Martine Payen, also concerned by the MOUS, refused two offers of social housing ( in particular because of the amount of the rent ) and still lives at Bois du Trou-Poulet on land belonging to her.", "- Michèle Perioche and Germain Guiton remained on their rented land.", "- Laetitia Winterstein remained with her partner (not an applicant ) and their five children, on land belonging to her grandmother.", "- Steeve Lefèvre and Graziella Avisse and their child have returned to Bois du Trou-Poulet after joining their aunt on an encampment area in Avranches; according to their lawyer, they received an eviction order after their return subject to a coercive fine of 300 EUR per day.", "- Rosita Ricono left Bois du Trou-Poulet and went to live in a hotel; she is now living on a friend ’ s land in Herblay.", "( iii) Families who have left the region", "Lastly, a number of families have left the region:", "- Pierre Mouche left in May 2005 after undergoing a serious operation ( according to his lawyer this was due to dust from the “11th Avenue ” construction work ). He wandered from place to place with his children, then on his own for four years, between Les Mureaux and Saint Ouen l ’ Aumône. In 2007 he refused social housing, in particular on account of his inability to live in such housing and his wish to settle on a family plot. He is currently living on a shopping centre carpark in Épône, next to his son Franck Mouche who gives him the assistance required by his state of health.", "- Gypsy Debarre and Paul Mouche, another son of Pierre Mouche, also left with him in 2005 and wandered from place to place with their six children, who were thus unable to attend school on a regular basis; they are currently separated. Gypsy Debarre is living on the Buchelay encampment area, near Mantes-la Jolie, with four of her children. In April 2009 she refused social housing that was offered to her, in particular because of her inability to pay the rent.", "- Sophie Clairsin and Thierry Lefèvre, who left in January 2006, lived on encampment areas in Avranches and Saint Hilaire. After those areas were closed for work, in August 2008 Sophie Clairsin bought a plot of non-buildable land on which she lives with her three children. According to their lawyer, the municipality of Saints has notified them of their obligation to leave the land and has brought proceedings against Sophie Clairsin in her capacity as owner.", "- Patrick Lefèvre and Sylviane Huygue-Bessin and their seven children, together with Catherine Herbrecht and her three children, who also left in January 2006, lived on sites at Avranches and Saint Hilaire until they closed; they then returned to Bois du Trou-Poulet, which the municipality asked them to leave within 48 hours. They are now accommodated on Sophie Clairsin ’ s land.", "- Philippe Lefèvre lives with his partner ( who is not an applicant ) in Mayenne, with the parents of the latter.", "- Mario Guiton and Stella Huet live with their three children near the parents of the latter in Normandy, and they return to Herblay for short stays.", "- Jessy Winterstein left Bois du Trou-Poulet with her two children and her current address is unknown.", "- Vanessa Ricono and her partner (who is not an applicant) also left with their child and their current address is unknown.", "41. Those of the applicants who have left explained that, as soon as they left Bois du Trou - Poulet, the municipality had had trenches dug on the land to prevent them from returning and had demolished their cabins; they were unable to recover the personal belongings that they had left behind, as they had been destroyed or stolen.", "( b) Applications under the “DALO Act” ( Law on the enforceable right to housing )", "42. A number of applicants (Michelle Périoche, Germain Guiton, Mario Guiton and Stella Huet, Laetitia Winterstein, Catherine Herbrecht, Sylviane Huygue-Bessin and Patrick Lefèvre, Gypsy Debarre and Paul Mouche, Graziella Avisse and Steeve Lefèvre, Rosita Ricono) filed applications in 2008 and 2009 (2010 for Rosita Ricono) for social housing pursuant to the Law of 2007 on the enforceable right to housing ( the “ DALO Act”, ... ), stipulating that they wanted family plots. Their applications were denied by the mediation board ( except for that of Gypsy Debarre), on the ground that they were “not eligible for relief under the DALO Act”. The Administrative Court dismissed their appeals against those decisions.", "( c) Resolution of the HALDE dated 22 February 2010", "43. On 14 February 2006 the National Association of Catholic Travellers ( Association nationale des Gens du Voyage catholiques, ANGVC) complained to the High Authority for the combat against Discriminations and the promotion of Equality ( Haute Autorité de Lutte contre les Discriminations et pour l ’ Ėgalité, the “ HALDE ” ) concerning the ban on travellers ’ camps throughout the municipality of Herblay, pursuant to a municipal by-law of 17 January 2005 ( see paragraph 15 above ).", "44. In a resolution of 22 February 2010, after, in particular, looking at the Court ’ s case-law ( judgments in Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001 ‑ I, and Connors, cited above ), the HALDE took the view that the combined effect of the département -level travellers ’ reception programme and the municipal by-law, two texts of secondary legislation, had the effect of totally overriding the application of a statute ( the Besson Act of 5 July 2000) whose aim was to protect travellers, and thus interfered with their rights.", "The HALDE thus concluded that the exemption granted to the municipality of Herblay by the département -level programme was not compliant with the above-mentioned Law of 5 July 2000 and recommended that the prefect should review its provisions. It further recommended that the mayor of Herblay should rescind the by-law and suspend any eviction measures taken on the sole basis of that instrument, and requested to be informed within three-months of the action taken in accordance with its resolution.", "( d) Resolution of the municipal council of Herblay dated 13 September 2012", "45. In an interview given to the newspaper Le Parisien on 13 December 2010, the mayor of Herblay stated that the travellers ’ encampment area prescribed by the département -level programme would be created on the land that had been set aside for family plots, as the municipality could not undertake both actions.", "46. The new département -level travellers ’ reception programme for the Val d ’ Oise, approved on 28 March 2011, provides for the creation in Herblay of an encampment area for 25 nomadic caravans.", "47. In a resolution of 13 September 2012 the municipal council of Herblay unanimously adopted a simplified revision of the local planning plan ( plan local d ’ urbanisme, PLU) for the purpose of creating the encampment area. ...", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "103. The applicants complained, relying on Article 8 of the Convention, that their eviction from the land where they had been settled for a long time constituted a violation of their right to respect for their private and family life and their home. They further relied on Article 3 of the Convention, taken alone and in combination with Article 14 of the Convention, and on Article 18 of the Convention taken together with Article 8. The Court will examine this complaint under Article 8, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "104. The Government contested that argument.", "...", "B. Merits", "1. The parties ’ submissions", "( a) The applicants", "119. The applicants asked the Court to find that there had been an interference by the State with their right to respect for their private and family life and their home, even though the State denied this on account of the “reduced effects” of the court decisions in question, which had not been enforced. Concerning the coercive fines imposed, it did not matter for them whether or not they were payable, because the mere fact that the municipality had sought them constituted a means of pressure which it had never said that it would renounce. Moreover, as the coercive fines could become payable at any time, the applicants remaining on the land continued, even now, to remain subject to whatever action the municipality and the State saw fit to take.", "120. They further emphasised the consequences of the court decisions against them : the pressure of the fines, threats of eviction, and various forms of harassment and refusals by the municipality, and the operation of construction machinery on their place of residence. They claimed that, in addition to the distress and humiliation endured, the fear of those decisions being enforced had obliged certain families to quit, leaving behind many of their possessions and taking their children out of school.", "121. As to the Government ’ s argument to the effect that the interference had been foreseeable, on the ground that the decisions at issue had been taken at the end of lengthy proceedings, which could be explained particularly by their non-conciliatory attitude, the applicants replied that they had made numerous attempts, in good faith, to resolve the matter out of court, by consulting the municipality, submitting applications for social housing ( whether ordinary or, in most cases, in the form of family plots ), asking the court to set up a mediation process and insisting on their participation in the MOUS study. They observed that the municipality of Herblay, for its part, had never proposed any dialogue with them for the purpose of finding a place where they could live, that the mayor had refused – which was highly unusual – to co-sign the MOUS, despite the prefect ’ s proposal to cover the whole cost, and that the municipality had ultimately refused to legally recognise part of its population ( even though travellers accounted for about 10%, with some families having been there for several generations ).", "122. Countering the Government ’ s arguments as to the legitimacy of the decisions taken and their proportionality in relation to the existence of a pressing social need, the applicants alleged that those decisions were not legitimate. They referred to the finding from the Court ’ s case-law cited by the Government themselves to the effect that “occupation of [a] caravan [was] an integral part of [the] identity” of travellers and that the State consequently had a positive obligation to respect their way of life. They were of the view that the Government were rendering that positive obligation meaningless by arguing that their wide margin of appreciation enabled them to give a planning regulation precedence over respect for the applicants ’ private and family life, their home and therefore their very identity.", "123. Claiming that the State could strike a balance only between rights of equal value, the applicants requested the Court to find that there was a manifest imbalance between, on the one hand, the right to respect for one ’ s private and family life and one ’ s home and, on the other, land-use plans. They emphasised that a planning regulation could not, in principle, be regarded as constituting a pressing social need and denied that reasoning similar to that of the Chapman judgment could be applied, since the Herblay families had been living on the land even before its classification as a natural zone. While the lack of any housing solution suited to their way of life had certainly driven some of them to settle there without prior authorisation some years earlier, they had not disregarded any environmental regulations or, therefore, any norm meeting a “pressing” social need. Moreover, the State itself, by circumventing the natural zone classification to build a four-lane road there had proved the non- existence of any such need. They thus contended that there had been no legitimate aim.", "124. The applicants claimed, in any event, that the State ’ s interference with their right to respect for their private and family life and their home could not be regarded as proportionate in the light of three factors : the duration of their residence in the municipality of Herblay, their destitution and, above all, the lack of any housing solution suited to their way of life.", "On the first point, they emphasised that they had been living on the land for many years, over thirty years for some families, and that under French law this gave them adverse possession. In their view it was therefore wrong for the Government to assert that the length of occupation did not give rise to any rights.", "125. On the second point, they rejected the Government ’ s argument that their destitution had been sufficiently taken into account since the coercive fines had not become payable, and observed that, since the State could not have been unaware that they were receiving legal aid, it would be sufficient for the State not to maintain the penalty if it really wanted to take account of their economic situation. Noting that the Government had referred a number of times to the entry into force of the Law of 5 March 2007 on the enforceable right to housing ( the “ DALO Act” ), they pointed out that this legislation had entered into force well after the material time, that its application was limited, at least in the Val d ’ Oise, to a right to obtain ordinary social housing, and that applications from sedentarised travellers seeking social housing suited to their way of life and identity ( namely so-called mixed accommodation, a family plot or specially adapted housing ) had been declared inadmissible by the mediation board. They concluded that it was with regard to the lack of suitable possibilities for relocation that the State had least satisfied the condition of proportionality.", "( b) The Government", "126. The Government began by expressing doubts about the fact the impugned court decisions, having regard to their reduced effects, could constitute an interference, within the meaning of the above-cited Article 8, with the applicants ’ rights. They pointed out first that the municipality of Herblay had never forcibly evicted anyone from the land and that it was of their own volition and gradually that certain applicants had left, and second that the coercive fine had not become payable.", "127. In any event, the Government argued that the decisions at issue met the requirements of Article 8. First, they were foreseeable, as it was not in dispute that the applicants were occupying the land in breach of planning regulations. Moreover, the judgment authorising the eviction had been given after lengthy proceedings which the applicants had not sought to bring to an end by making efforts to comply or to reach a compromise. In particular, the Government noted that the applicants had not, to their knowledge, even begun to comply with the injunction of 2 July 2004 requiring them to clear the land of car parts and rubbish.", "128. Secondly, those decisions pursued a legitimate aim. In this connection the Government referred to the Court ’ s case-law ( in particular, the Chapman judgment, cited above ), according to which the need to respect the lifestyle of travellers, including when they were sedentary, concerned respect not only for their home but also for their private and family life, for “[m]easures affecting the applicant ’ s stationing of her caravans ... ha[d] an impact going beyond the right to respect for her home [and] also affect [ed] her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition ” ( ibid., § 73). Moreover, the Government pointed out that the Court had recognised the vulnerability of travellers and imposed on States a positive obligation to facilitate their way of life (ibid. , § 96). However, in their view, such a positive obligation could not be unlimited, as the State had some room for manoeuvre, provided it guaranteed the applicants ’ rights, which had to be weighed up against the interests of the community.", "In the present case, the judgment of 22 November 2004 had indicated that the occupied area corresponded to a “natural area qualifying for protection on account of the quality of its landscape and its various characteristics”, that the camping and caravanning for which it could be equipped was subject to specific regulations and that none of the occupants could rely on any permit or prefectoral order in their favour. The Government referred to the above-cited Chapman judgment (§§ 94-95 and § 102), suggesting that the same approach could be applied in the present case.", "129. The Government argued, thirdly, that the judicial decisions at issue had been proportionate. They began by pointing out that the judges had taken into account the duration of the occupation of the land. The urgent eviction proceedings had thus resulted in the dismissal of the application on 2 July 2004, on the ground that as the occupation had been tolerated for many years the municipality could not rely either on any urgency or on any manifestly unlawful nuisance. Similarly, in its judgment of 13 October 2005, the Versailles Court of Appeal had referred to the prolonged tolerance of the occupation, nevertheless finding that this did not create any rights. The Government concluded that this important aspect had always been weighed in the balance by the domestic courts.", "130. Lastly, the destitution of the persons concerned had never been disregarded by the authorities. The Government pointed out that the municipality of Herblay had never demanded payment of the coercive fine imposed by the court, that the applicants ’ financial resources entitled them to benefits which were easier to obtain since recent reforms, and that those resources had been taken into account by the authorities in their search for relocation solutions.", "131. Lastly, the Government observed that it was necessary, in order to assess the proportionality of the interference, to examine the existing possibilities for a lternative housing. They pointed out, referring to the Chapman judgment, that the Court afforded States a wide margin of appreciation in such matters. After giving an overview of the land-use and real-estate context in the Val d ’ Oise, the Government indicated that the département -level accommodation action plan for persons in need (PDALPD) for 2008-2010, like the previous plan, took into account the need to develop specially adapted housing, especially for travellers who were sedentarised or were in the process of sedentarisation. They emphasised, however, that it was not easy to offer social housing to people who were looking for specially adapted forms of accommodation, such as travellers who wished to settle on rented municipal land. Thus, while some of the applicants had already been granted social housing, others preferred to wait for an offer to rent land.", "132. The Government indicated that following the MOUS “ relocation ” plan for the five households identified in the context of the social study ( see paragraph 37 above ), four households had been rehoused in rented social housing in Herblay or in surrounding communities between April and July 2008; the fifth household ( a single person ) was waiting for a new offer of housing after rejecting an initial offer in June 2008.", "133. The Government then described the progress made in the creation of family plots, a solution sought by a number of applicant households. They explained that, as regards the eight plots opened in December 2008 ( see paragraph 13 above ), the applicants were not among the beneficiaries, who had been involved in a previous MOUS. However, the implementation of the second phase provided for by the memorandum of understanding of 23 November 2004 (ibid. ) had been decided; the municipality had pursued its idea of acquiring a number of plots adjacent to those where the first eight had been created, making a total of 38 plots instead of the 26 initially planned. The acquisition of the plots was underway, together with a simplified review of the planning document, the plots in question being situated in the zone Na ( natural zone). The Government explained that it was not yet known which families would be allotted those new plots, but that the applicants would have the opportunity to be rehoused there at the time of completion, which was forthcoming at the time the Government filed their observations in early 2010.", "134. The Government referred in general to the improvement in the taking into account of travellers in planning documents: the land-use plan (POS) as revised on 29 September 2005 included, in addition to the Nd zone reserved for caravans, a new UK zone created to release municipal land for urban planning and authorise the construction of buildings suited to the situation of sedentarised travellers, as shown by the resolutions of the Herblay municipal council dated 29 September 2005. The local planning plan (PLU) approved on 22 June 2006, replacing the POS, provided for zones (Uck and 1 AUk) which allowed for occupation by caravans for primarily residential use and the adapting of rented municipal land for sedentarised travellers.", "135. The Government further indicated that, even though the municipality of Herblay was not subject to the obligation to create encampment spaces for nomadic travellers, its mayor had in 2008 proposed to join the mayors of Beauchamp and Pierrelaye in creating an encampment area serving all three municipalities, thereby creating twenty-five spaces in Beauchamp for the municipality of Herblay.", "136. The Government emphasised the numerous public efforts made to offer housing corresponding to the applicants ’ specific requests and explained that the length of the relocation procedure was due to the need to create the structures which would meet those requests. While it was for the State to make sure that this offer was adapted as far as possible to the particular expectations, especially those of travellers, it did not, however, fall within the requirements of Article 8 to make available to them, without delay, an exact number of specific facilities.", "137. The Government argued that there had been no violation of Article 8 of the Convention.", "( c) The third-party intervener", "138. The European Roma Rights Centre (the “ ERRC ” ) pointed out that the Court ’ s definition of “home”, within the meaning of Article 8 of the Convention, referred neither to the legal status of the inhabitant nor to the physical characteristics of the dwelling. The Court had recognised that caravans belonging to the Roma and travellers were “homes”, as the French Government had not disputed in Stenegry and Adam v. France ((dec.), no. 40987/05, 22 May 2007), and the issues of legal title or planning permission should be examined only in the context of Article 8 § 2. Under Article 1 of Protocol No. 1, the ERRC took the view that, in addition to the caravans, the sheds and bungalows of the Roma and travellers, even those erected without a permit on third parties ’ land, also had to be regarded as possessions. That approach would enable the Court to take account of the principles of international law in the field of housing, including the principle that evictions of vulnerable groups such as the Roma and travellers should only take place if a number of conditions were met, the most important one being the provision of an alternative relocation site. Roma caravans and sheds should be subject to demolition or removal under the same conditions as “ordinary” houses, including access to a court or administrative body which would adjudicate on the legality of the demolition taking the applicable principles into account.", "139. In the ERRC ’ s view, the forced eviction of Roma and travellers from land which they occupied without permission and the demolition or removal of their caravans and sheds raised two questions : first, the destruction of their homes could in certain circumstances engage Article 3 of the Convention, and the same principles were applicable where they were intimidated or forced into abandoning the plot of land on which they were residing. Secondly, the ERRC argued that there was no judicial remedy capable of providing them with adequate redress, namely the provision of alternative accommodation, even though this was an obligation under both the Convention and the Social Charter. The offer of alternative accommodation had to be forthcoming before the decision ordering eviction and was a precondition for the legality of that decision. The ERRC also referred to the joint public statement of 24 October 2007 of the Council of Europe ’ s Commissioner for Human Rights and the United Nations Special Rapporteur on the Right to Adequate Housing ..., to the Basic Principles and Guidelines on Development-Based Evictions and Displacement, and its Collective Complaints against Greece, Italy and Bulgaria before the European Committee on Social Rights (nos. 15/2003, 27/2004 and 31/2005 respectively ). It further referred to General Comments nos. 4 and 7 of the United Nations Committee on Economic, Social and Cultural Rights concerning Article 11 § 1 of the International Covenant on Economic, Social and Cultural Rights ( which guaranteed among other things the right to adequate housing ... ). It contended that in the face of persistent failure by a number of States, including France, to provide adequate housing to Roma and travellers, the erection of sheds or the parking of caravans on a plot of land had to be regarded as “self-help” measures within the meaning of paragraph 10 of the above-cited General Comment no. 4.", "140. The ERRC acknowledged that many Council of Europe member States had adopted ambitious programmes, such as France, which in 2000 started implementing a programme designed to meet primarily the needs of itinerant travellers. It referred to its collective complaint against France before the European Committee on Social Rights ( no. 51/2008) regarding the housing of Roma and travellers ... and cited the criticisms of the Commission nationale consultative des droits de l ’ homme (National Advisory Commission on Human Rights) about that issue and the problems in applying the Besson Act of 2000 .... It lastly referred mutatis mutandis, on the question of relocation, to cases against Turkey from the Court ’ s case-law ( in particular, Doğan and Others v. Turkey, nos. 8803 - 8811/02, 8813/02 and 8815 - 8819/02, § 154, 29 June 2004).", "2. The Court ’ s assessment", "( a) Whether there has been an interference", "141. The Court reiterates that the concept of “home” within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established. It is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a “home” which attracts the protection of Article 8 will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place (see Buckley v. the United Kingdom, 25 September 1996, §§ 52-54, Reports of Judgments and Decisions 1996-IV; McCann, cited above, § 46; Prokopovitch v. Russia, no. 58255/00, § 36, ECHR 2004 ‑ XI; and Orlić v. Croatia, no. 48833/07, § 54, 21 June 2011).", "In the present case it is not in dispute that, at the material time, the applicants had been residing for many years ( between five and thirty years ) at the locality of Bois du Trou-Poulet in Herblay. The Court thus takes the view that the applicants had sufficiently close and continuous links with the caravans, cabins and bungalows on the land occupied by them for this to be considered their “home”, regardless of the question of the lawfulness of the occupation under domestic law ( see Buckley, cited above, § 54; McCann, cited above, § 46; Orlić, cited above, § 55; and Yordanova and Others v. Bulgaria, no. 25446/06, § 103, 24 April 2012).", "142. The Court observes that the present case also brings into play, in addition to the right to respect for one ’ s home, the applicants ’ right to respect for their private and family life, as the Government implicitly recognised. It reiterates that the occupation of a caravan is an integral part of the identity of travellers, even where they no longer live a wholly nomadic existence, and that measures affecting the stationing of caravans affect their ability to maintain their identity and to lead a private and family life in accordance with that tradition ( see Chapman, cited above, § 73; Connors cited above, § 68; and Wells v. the United Kingdom (dec.), no. 37794/05 ).", "143. The Government contended that there was no interference with the applicants ’ rights in view of the “reduced effects” of the judicial decisions at issue. The Court is, however, of the view that the obligation imposed on the applicants, on pain of a coercive fine, to vacate their caravans and vehicles and to clear any constructions from the land constitutes an interference with their right to respect for their private and family life and their home, even though the judgment of 13 October 2005 has not to date been enforced ( see Chapman, cited above, § 78; mutatis mutandis, Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009; and Yordanova and Others, cited above, § 104). This is all the more true as the present case concerns decisions ordering the eviction of a community of about a hundred people, with inevitable repercussions on their lifestyle and their social and family ties ( see Yordanova and Others, cited above, § 105). The Court further observes that a significant number of the applicants have already left the site, whether temporarily or permanently, fearing that the judgment would be enforced and the fine would become payable. It also notes that the fine, for which no settlement date was fixed in the judgment, continues to run in respect of those applicants who have remained on the site.", "( b) In accordance with the law", "144. It can be seen from the domestic courts ’ decisions that they were based on the provisions of the Town and Country Planning Code and the land-use plan for the municipality of Herblay, the latter being automatically enforceable from the time of its publication. The Court notes that these provisions are accessible and foreseeable and thus concludes that the interference was in accordance with the law within the meaning of Article 8 § 2.", "( c) Legitimate aim", "145. The Government pointed out that the applicants unlawfully occupied a natural zone and suggested transposing the Court ’ s reasoning from the Chapman judgment, where it had referred to the “right of others in the community to environmental protection” (§ 102). The applicants, for their part, argued that they had been living on the land before it had been classified as a natural zone and, while they had admittedly settled there without prior permission, they had not flouted any rules of environmental protection.", "146. The Court observes that the land occupied by the applicants is included, according to the land-use plan, in a zone corresponding to a “natural area qualifying for protection on account of the quality of its landscape and its various characteristics”. This zone can be developed and occupied only in accordance with specific regulations ... The Court thus takes the view that, as in the Chapman judgment (§ 82), the interference at issue pursued the legitimate aim of protecting the “rights of others” through preservation of the environment ( see also the decisions in Wells and Stenegry and Adam, cited above ). It remains to be established whether it was “necessary in a democratic society” within the meaning of Article 8 § 2.", "( d) Whether the interference was necessary", "( i) General principles", "147. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention ( see Chapman, cited above, § 90, and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101).", "148. A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference ( see Chapman, cited above, § 91; S. and Marper, cited above, § 102; and Nada, cited above, § 184). The following points emerge from the Court ’ s case-law ( see Yordanova, cited above, § 118) :", "(α) In spheres involving the application of social or economic policies, including as regards housing, the Court affords the authorities considerable latitude. In this area it has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see Buckley, cited above, § 75 in fine, and Ćosić, cited above, § 20), although the Court retains the power to find that the authorities have committed a manifest error of assessment (see Chapman, cited above, § 92).", "(β) On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of fundamental or “ intimate ” rights. This is the case in particular for Article 8 rights, which are rights of central importance to the individual ’ s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, among many other authorities, Connors, cited above, § 82 ).", "(γ) It is appropriate to look at the procedural safeguards available to the individual to determine whether the respondent State has not exceeded its margin of appreciation in laying down the regulations. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, § 76, and Chapman, cited above, § 92). The requirement for the interference to be “necessary” raises a question of procedure as well of substance (see McCann, cited above, § 49 ).", "(δ) Since the loss of one ’ s home is a most extreme form of interference with the right under Article 8 to respect for one ’ s home, any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he has no right of occupation (see Kay and Others v. the United Kingdom, no. 37341/06, § 68, 21 September 2010, and Orlić, cited above, § 65). This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons ( Orlić, cited above, §§ 67 and 71 ).", "( ε) When considering whether an eviction measure is proportionate, the following considerations should be taken into account in particular. If the home was lawfully established, this factor would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home was unlawful, the position of the individual concerned would be less strong. If no alternative accommodation is available the interference is more serious than where such accommodation is available. The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned and, on the other, the rights of the local community to environmental protection ( see Chapman, cited above, §§ 102-104).", "( ζ) Lastly, the vulnerable position of Roma and travellers as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases ( see Chapman, cited above, § 96, and Connors, cited above, § 84); to this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the way of life of the Roma and travellers ( see Chapman, cited above, § 96, and the case-law cited therein ).", "( ii) Application to the present case", "149. The Court is of the view that the present application is comparable to the Yordanova and Others case (cited above), in which it had to examine the conformity with Article 8 of a decision by Bulgarian municipal authorities to expel a sedentary Roma community from land that they had been occupying for many years in Sofia.", "150. In that case the Court noted that, while the authorities were in principle entitled to remove the applicants, who were illegally occupying municipal land ( ibid., § 120), they had not taken any steps to that end for several decades and had, therefore, de facto tolerated the unlawful settlement. The Court consequently took the view that this fact was highly pertinent and should have been taken into consideration; while the unlawful occupants could not claim any legitimate expectation to remain on the land, the authorities ’ inactivity had resulted in their developing strong links with the place and building a community life there. The Court concluded that the principle of proportionality required that such situations, where a whole community and a long period were concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property ( ibid., § 121).", "( α) Examination of proportionality by competent authorities", "151. In finding, in the Yordanova and Others judgment, that the requirement of proportionality under Article 8 § 2 had not been met, the Court primarily took into account the fact that, on the one hand, the municipal authorities, relying on the applicable domestic legal framework, had not give reasons in the eviction order other than to state that the applicants occupied the land unlawfully, and in the judicial review proceedings the domestic courts had expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived there undisturbed ( ibid., § 122).", "152. The Court is of the view that the same approach can be adopted in the present case. It is not in dispute that the applicants had been living on the land for many years or had been born there, or that the municipality of Herblay had tolerated their presence for a long period before putting an end to it in 2004. One difference must be pointed out : unlike the situation in the Yordanova and Others case, the land occupied by the applicants was not municipal land but private land, of which they were mostly tenants and, in some case, owners, and this was land that could in principle be used for camping or caravanning, but which, in the absence of development or prefectoral authorisation, could not have caravans permanently stationed on it ...", "The Court notes that the reason which was given by the municipality to seek the applicants ’ eviction – and which was then endorsed by the domestic courts in ordering it – related to the fact that their presence on the land was in breach of the land-use plan ( see paragraphs 18 and 21 above ).", "153. The Court observes that, before the domestic courts, the applicants raised grounds of defence that were based on the long duration of their settlement and the municipality ’ s tolerance, on the right to housing, on Articles 3 and 8 of the Convention and on the Court ’ s case-law ( especially the above-cited Connors judgment ). It is true, as the Government have pointed out, that in the injunction proceedings the court dismissed the eviction application on the ground that on account of the duration of the site ’ s occupation and the longstanding tolerance by the municipality, there was neither any urgency not any manifestly unlawful nuisance, the only grounds on which it could have based its jurisdiction ( see paragraph 19 above ).", "154. However, the Court notes that in the proceedings on the merits those aspects were not taken into account : the tribunal de grande instance did not mention them and merely found that the applicants had not complied with the land-use plan, which was enforceable from the time of its publication. While it analysed the right to housing and its legislative and constitutional basis, it found that this right could not be guaranteed without regard for legality or in breach of the applicable rules. Lastly, it rejected the arguments under Articles 3 and 8 of the Convention on the grounds that the applicants ’ situation was different from that of the Connors family and that neither its decision nor the enforcement thereof could constitute a violation of the above-mentioned Articles 3 and 8.", "The Court of Appeal, for its part, after finding that the long duration of the occupation did not “ create rights, neither [did] the tolerance, however lengthy, of such occupation in breach of the provisions of the municipality ’ s land-use plan”, took the view that neither the right to housing nor the above-cited Articles 3 and 8 had been impaired since the municipality ’ s action had a legal basis “derived from compliance with regulations that [were] indiscriminately binding on everyone, thus sufficing to establish the public interest that [was] necessary for the exercise of such action”, that it had given rise to adversarial proceedings and that the enforcement of a court decision given with due regard for defence rights could not constitute treatment in breach of Article 3.", "155. The Court reiterates that the loss of a dwelling is a most extreme form of interference with the right to respect for one ’ s home and that any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by a court. In particular, where relevant arguments concerning the proportionality of the interference have been raised, the domestic courts should examine them in detail and provide adequate reasons ( see the case-law cited in paragraph 148 (δ) above ).", "156. In the present case, the domestic courts ordered the applicants ’ eviction without having analysed the proportionality of this measure ( see Orlić, cited above, § 67, and Yordanova and Others, cited above, § 122 ). Once they had found that the occupation did not comply with the land-use plan, they gave that aspect paramount importance, without weighing it up in any way against the applicants ’ arguments ( contrast Buckley, cited above, § 80, and Chapman, cited above, § § 108-109). As the Court emphasised in Yordanova and Others (§ 123), that approach is in itself problematic, amounting to a failure to comply with the principle of proportionality : the applicants ’ eviction can be regarded as “necessary in a democratic society” only if it meets a “ pressing social need ”, which is primarily for the domestic courts to assess.", "157. In the present case, this question was all the more important as the authorities had not proposed any explanation or argument as to the “necessity” of the eviction, whereas the land in question had already been classified as a natural zone (zone ND) in the previous land-use plans ( see paragraph 16 above ), it was not municipal land earmarked for development ( contrast Yordanova and Others, cited above, § 26) and there were no third-party rights at stake ( see Orlić, cited above, § 69).", "158. The Court thus finds that the applicants did not, in the eviction proceedings, have the benefit of an examination of the proportionality of the interference in compliance with the requirements of Article 8.", "( β) Other facts", "159. The Court must additionally, as in the case of Yordanova and Others, take account of the following aspects. First, as the Government have pointed out, it is appropriate, in order to assess the proportionality of the interference, to examine the possibilities of alternative housing that exist ( see Chapman, cited above, § 103). Admittedly, Article 8 does not in terms recognise a right to be provided with a home ( ibid., § 99 ), but in the specific circumstances of the case and in view of the long history of the presence of the applicants, their families and the community they had formed, the proportionality principle required, as the Court found in Yordanova and Others ( cited above, § 126), that due consideration be given to the consequences of their removal and to the risk of their becoming homeless.", "The Court would emphasise in this context that numerous international instruments, some of which have been adopted within the Council of Europe, emphasise the necessity, in the event of the forced eviction of Roma and travellers, of providing them with alternative housing, except in cases of force majeure : see Recommendation (2005)4 of the Committee of Ministers, Resolution 1740(2010) of the Parliamentary Assembly and the Position Paper of the Commissioner for Human Rights dated 15 September 2010 ... and, in more general terms, General Comment no. 7 of the United Nations Committee on Economic, Social and Cultural Rights ...", "160. In addition, it is necessary, as the Government have accepted, to take into account the fact that the applicants belong to a vulnerable minority. The Court would refer to its previous finding that the vulnerable position of Gypsies and travellers as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases ( see Connors, cited above, § 84; Chapman, cited above, § 96; and Stenegry and Adam, cited above ). It has also stated in Yordanova and Others ( cited above, §§ 129 and 133) that, in cases such as the present one, the applicants ’ specificity as an underprivileged social group and their resulting needs must be taken into account in the proportionality assessment that the national authorities are under a duty to undertake, not only when considering approaches to dealing with their unlawful settlement but also, if their removal is necessary, when deciding on its timing and manner and, if possible, arrangements for alternative shelter.", "161. That was only partly true in the present case. While, as the Court has noted above, the consequences of the removal and the applicants ’ vulnerability were not taken into account either by the authorities before the eviction procedure was initiated or by the courts during the ensuing proceedings, an urban and social study (MOUS) was undertaken after the Court of Appeal ’ s judgment in order to determine the situation of each family and to assess the relocation possibilities that could be envisaged ( see paragraphs 33-37 above ). The Court further observes that those of the families who opted for social housing were relocated in 2008, four years after the eviction order ( see paragraph 40 above ). Therefore in the Court ’ s view, to that extent, the authorities gave sufficient consideration to the needs of the families concerned ( see, mutatis mutandis, Stenegry and Adam, cited above ).", "162. The Court reaches the opposite conclusion as regards those of the applicants who sought relocation on family plots. While the Government listed in their observations the steps taken by the municipality for the development of those plots and stated that the applicants would have the possibility of being relocated there on completion, scheduled for 2010, six years after the judgment ( see paragraphs 133 - 134 above ), it can be seen from the most recent information at the Court ’ s disposal that this project has been abandoned by the municipality, which has chosen to assign the land intended for that purpose to the nomadic travellers ’ encampment area for which it is responsible under the département -level programme ( see paragraphs 45-47 above ).", "163. For their part, the applicants cannot be criticised for having remained inactive ( contrast Yordanova and Others, cited above, § 131). Many of them lodged applications for social housing, under the law on the enforceable right to housing, stipulating that they wanted family plots, but their requests were rejected by the mediation board and by the Administrative Court ( see paragraph 42 above ). Moreover, those who have left Bois du Trou-Poulet have attempted to find relocation solutions which, for the most part, have proved temporary and unsatisfactory ( see paragraph 40 above ). Nor can they be criticised for failing to request or accept social housing which did not correspond to their lifestyle, as the Court recognised in the Stenegry and Adam decision ( cited above ).", "164. The Court cannot overlook the following facts. Apart from the four families who have been relocated to social housing and two families who have moved to other regions, the applicants are all in highly unstable situations : both those who have remained at Bois du Trou - Poulet and those who have returned there are living under the threat of enforcement of the decisions ordering their eviction on pain of a coercive fine; the other applicants have not been able to find long-term accommodation and are living in places that are generally ill-suited and from which they can be removed at any time by the authorities ( shopping centre car park or land where the parking of caravans is prohibited, see paragraph 40 above ).", "165. The Court observes in this connection that a number of domestic documents ( opinion of the CNCDH, reports by Senator Hérisson and the Court of Audit ... ) have emphasised the insufficient number of adapted housing solutions for sedentarised travellers, and this same finding led the European Committee for Social Rights to conclude, in complaint no. 51/2008 ( European Roma Rights Centre v. France ), that there had been a violation of Article 31 § 1 of the revised Charter ...", "166. Having regard to the foregoing, the Court arrives at the conclusion that, in the present case, the authorities failed to give sufficient consideration to the needs of the families who applied for relocation to family plots.", "( iii) Conclusion", "167. The Court finds that, in respect of all the applicants, there has been a violation of Article 8 of the Convention since they did not have the benefit, in the context of the eviction proceedings, of an examination of the proportionality of the interference in accordance with the requirements of that Article. In addition, it finds that there has also been a violation of Article 8 in respect of the those of the applicants who applied for relocation to family plots, on account of the failure to give sufficient consideration to their needs.", "...", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "1 85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "1 86. Some of the applicants requested sums in respect of pecuniary damage, asserting that, when they were forced to leave Bois du Trou-Poulet, they had to abandon their chalets or caravans together with the belongings left inside. They claimed on that basis: EUR 600 (Catherine Herbrecht), EUR 2, 000 (Pierre Mouche, Rosita Ricono, Paul Mouche and Gypsy Debarre), EUR 3, 000 (Thierry Lefèvre and Sophie Clairsin, Patrick Lefèvre and Sylviane Huygues - Bessin), and EUR 5, 000 (Solange Lefèvre).", "1 87. In respect of non-pecuniary damage, those of the applicants who have remained at Bois du Trou-Poulet claimed: EUR 7, 500 (Catherine Lefèvre, Sabrina Lefèvre, Steeve Lefèvre and Graziella Avisse, Sandrine Plumerez, Germain Guiton, Michelle Perioche, Mario Guiton and Stella Huet, Martine Payen, Laetitia Winterstein and Jessy Winterstein); the other applicants claimed sums ranging from EUR 15, 000 (Rosita Ricono, Solange Lefèvre, Thierry Lefèvre and Sophie Clairsin, Patrick Lefèvre and Sylviane Huygues - Bessin and Catherine Herbrecht) to EUR 20, 000 (Pierre Mouche, Paul Mouche and Gypsy Debarre).", "The applicants also claimed the sum of EUR 7, 500 jointly for the costs and expenses incurred before the Court, broken down as follows : EUR 5, 000 for their lawyers ’ fees ( for which the relevant invoices were produced) and EUR 2, 500 for various travelling expenses.", "1 88. The Government objected that these claims were manifestly excessive and observed that the only complaints communicated by the Court were those based on Articles 8 and 14 of the Convention. They asserted that the reality of the damage claimed had not been established, nor had the causal link with the complaints in question. In particular, they argued that the link between the pecuniary losses claimed and the court decisions did not appear to be substantiated.", "1 89. As to the non-pecuniary damage, the Government noted that it had been estimated globally, without any precision or attestation being forthcoming, and that it appeared disproportionate, as the municipality of Herblay had not demanded payment of the coercive fine, no eviction had been carried out and some applicants had already been relocated. In those conditions, the Government took the view that the finding of a violation would constitute appropriate redress for any damage sustained, and that any financial award could only be symbolic. Concerning the expenses, the Government asserted that as only established expenses could be taken into account, any payment to the applicants on that basis, should a violation be found, could not exceed EUR 5, 000.", "1 90. The Court takes the view that, in the circumstances of the case, the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it will reserve the question, bearing in mind the possibility of an agreement being reached between the respondent State and the applicants (Rule 75 § 1 of the Rules of Court)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The applicants in case no. 24816/14", "5. Mr Branko Hudorovič (the first applicant) was born in 1959 and lives in the informal Roma settlement of Goriča vas in the Ribnica Municipality. Mr Aleks Kastelic (the second applicant) is the first applicant’s son, born in 2007, who initially applied to the Court under the name Aleks Hudorovič. Following the Government’s objection, lodged on 2 November 2015, his name was corrected to Aleks Kastelic.", "6. On 26 May 2011 the first applicant and the second applicant’s mother, Ms Marija Kastelic, reached a court settlement whereby the second applicant resides in the custody of his mother at a different address from that submitted by the first applicant. According to the information about the first and second applicants’ family situation provided to the Government by the Ribnica Social Work Centre on 22 June 2015, the first applicant maintained contact with the second applicant under the terms agreed upon with the latter’s mother. According to the first applicant, the second applicant lives mostly with him in the Goriča vas settlement.", "7. More than 10% of the population residing in the Ribnica Municipality do not have access to drinking water from the public water-distribution system. The public sewage system for the discharge of urban wastewater was built solely in the town of Ribnica and the Hrastje area, while all other housing facilities must be equipped with their own septic tanks or individual water treatment plants installed at the expense of each facility or investor.", "8. On 31 December 2014 there were forty-three public housing units at a subsidised rent rate provided to people with low incomes in the Ribnica Municipality. Another fourteen public housing units were provided at the market rate.", "9. The land on which the Roma community settled thirty years ago is owned by the Republic of Slovenia. This marshy agricultural land is categorised in the Municipal Spatial Plan of the Ribnica Municipality as the best category of agricultural land, where construction of residential buildings is not allowed. Moreover, the Goriča vas settlement is located outside of settlement areas under high-voltage power lines where construction is not allowed owing to electromagnetic radiation.", "10. In the early period of the settlement, the inhabitants lived there in tents, but later some more permanent dwellings were constructed. Today most residents live in wooden huts, some of which have stonework or brick inside. Today some eighty people reside in the settlement. Demolition orders were issued in respect of five such illegally constructed huts, including one built by the first applicant. He received an order to remove the building then under construction in 2000, which came into effect in 2005. None of the demolition orders was, however, executed, one of the reasons being that alternative accommodation would have had to be provided to the Roma children living on the premises.", "11. The buildings in the Goriča vas settlement are not equipped with plumbing, nor is there any sewage piping. As regards electricity, the residents rely on illegal connections to electricity poles. The collection and transport of municipal waste is regularly performed by the public municipal utility service, and it is no longer charged to the residents since they have failed to pay their bills.", "12. The first applicant initially submitted that he lived in a caravan. He subsequently informed the Court that he had moved into a simple wooden hut where he lives with his son. The hut has no access to water, sewage and sanitation. According to the first applicant, they collect water from the cemetery or the nearby polluted stream or else they acquire it from other houses. Moreover, owing to the lack of sanitation services, the applicants use the area around the caravan for defecation.", "13. The applicants, together with other inhabitants of the settlement, have for a number of years been seeking to obtain access to public utilities. They attended a number of meetings with the mayor of the Ribnica Municipality and the governmental Office for Minorities ( Urad za manjšine ). However, as the Goriča vas settlement was established in an irregular manner, the residents have no possibility of acquiring building permits and the other documents necessary for obtaining access to the public infrastructure.", "14. In 1996, the Ribnica Municipality drew up a plan to relocate the residents of the Goriča vas settlement to the Lepovče Roma settlement. Several terraced houses were to be constructed and equipped with the necessary infrastructure. The Roma from the Goriča vas settlement initially agreed to the Municipality’s plan and expressed their readiness to contribute their labour to the project. However, in May 1997 the non-Roma residents of Lepovče expressed their opposition to the enlargement of the Roma settlement in their village, fearing that the proximity of the settlement would cause “further complications”. Later in May 1997, the first applicant, in his capacity as representative of the Roma living in Goriča vas, declared in writing that the group was not willing to move to the proposed location. It appears from the internal communications of the Municipality that the opposition to the proposed plan partly resulted from the fact that two separate Roma groups, between whom disagreements existed, were to be settled in Lepovče. The Municipality subsequently abandoned the resettlement plan.", "15. On 14 April 1999 the first applicant met the mayor of Ribnica and requested that basic utilities, specifically drinking-water supply and an electricity generator, be provided for the Goriča vas Roma settlement. The first applicant and the mayor concluded that a diesel generator and a water tank of 2,000-3,000 litres were to be purchased and placed in the Roma settlement; a regular water supply was to be provided by the local fire brigade, with the cost of the water deliveries being borne by the residents. According to the minutes of the meeting, the Roma residents would bear the costs of adequate sanitation (chemical toilets) and arrange for the clean-up of the surrounding area.", "16. Subsequently, on 26 July 1999 the Ribnica Municipality and the first applicant, representing the Roma residing in Goriča vas, signed a co ‑ financing agreement whereby each of the parties undertook to cover 50% of the costs of the purchase of a water tank and a diesel generator. The pro forma value of the two infrastructure items, as set out in the agreement, amounted to 294,546 Slovenian tolars (SIT) (which according to the then applicable exchange rate amounted to 1,504 euros (EUR)). The Municipality committed itself to carrying out the purchase and delivering the water tank and the generator to the Goriča vas settlement. The individual Roma residents who had financially contributed to the purchase assumed ownership of the infrastructure items, and all the Roma residents of the Goriča vas settlement acquired the right to access water and electricity. In addition to the purchases, the Ribnica Municipality provided some landfill material used for the rehabilitation of the environment in the settlement.", "17. It is undisputed between the parties that the water tank was purchased as part of a co-financing agreement. However, they disagreed on the subsequent course of events and the current situation as regards access to drinking water in the settlement.", "18. According to the applicants, after a number of years the water tank became unusable due to mould and other fungi and they had no choice but to replace it. The tank had not been dug into the ground and therefore was not protected from the weather. Also, the applicants did not know whether the quality of water was being monitored at all. The Government, however, relying on the written testimony of a local resident, submitted that both the diesel generator and the water tank had subsequently been sold. The applicants contested that submission, arguing that “most of [the tanks]” could not have been sold as they had become unsuitable for use.", "19. Regarding the water deliveries, in the period from 30 January 2010 until 1 January 2016 there were thirty-one deliveries of water to the Goriča vas settlement; each time the residents requested it, 5,000 litres of water were delivered and the cost of an individual delivery amounted to EUR 35. The Roma residents were obliged to pay the costs of transporting the water, while the costs of the water itself were borne by the Ribnica Municipality. The Government, relying on information provided by the Ribnica fire brigade, submitted that the supplies of water had been poured into a large water tank installed in the settlement; when the tank was full, other containers had also been filled.", "20. According to the applicants, the water delivered by the Ribnica fire brigade was used to fill private water tanks and pools where children bathed in the summer.", "21. The Government further submitted that the Roma from the Goriča vas settlement had supplied themselves with water at the nearby Hrovača Cemetery, which was approximately 1 km away from the settlement. The applicants confirmed that they collected water wherever they could, including at cemeteries.", "22. As regards the financial situation of the applicants, in the period from 1 May to 31 October 2015 the first applicant was entitled to monthly social assistance in the amount of EUR 269.20. The second applicant, in his mother’s custody, was financially supported through her monthly social security allowance amounting to EUR 331.12, and a monthly child allowance in the amount of EUR 114.31. In addition, based on a friendly settlement between the parents, the first applicant had a duty to pay monthly child support to the second applicant in the amount of EUR 61.99.", "23. On 13 October 2015 the Human Rights Ombudsman submitted a request to the Government to urgently adopt all necessary measures for the Goriča vas settlement to be connected to the public water supply system. In the meantime, a water tank had to be installed in the settlement. The Government replied that a water tank had already been installed and that spatial planning at the local level was the responsibility of the Ribnica Municipality. In reply, the Human Rights Ombudsman, noting that the Goriča vas residents had not reported the presence of a water tank, critically assessed the situation and took the view that the Ribnica Municipality had not effectively engaged with the Roma community to provide them with water and sanitation. The Ombudsman considered that the Government were violating the Roma residents’ human right to water and sanitation and noted that a violation would persist until a connection to the public water supply and sanitation system was ensured.", "B. The applicants in case no. 25140/14", "24. The applicants, a family of fourteen, live in the informal Roma settlement at Dobruška vas 41 in the Škocjan Municipality, which is composed of approximately twenty housing units for two hundred and fifty people. Mr Ljubo Novak (the first applicant) was born in the settlement, Ms Dunja Kočevar (the second applicant) has been living there for twenty years and all of their children were born there, too.", "25. The Dobruška vas 41 settlement is located on land belonging mostly to the Škocjan Municipality and the local Krka Agricultural Cooperative. According to the Roma residents and a report of the Human Rights Ombudsman, members of the Roma community were moved to the area by the local authorities of the then Novo mesto Municipality in 1963, and have lived there ever since. Construction of residential houses in the Dobruška vas 41 settlement is possible under certain conditions and subject to approval by two environmental agencies owing to the fact that the land is partially located in a flood area and an area of natural interest. However, the Škocjan Municipality spatial plan provides for construction of a wastewater treatment plant and the transformation of the entire area in question into a business zone. The municipal authorities have on several occasions expressed expectations that the Roma residents of Dobruška vas 41 settlement should be relocated, while arguing at the same time that there was no appropriate area for an alternative settlement in the Škocjan Municipality.", "26. In the period from 2004 until 2015 several residents of Dobruška vas 41, but not the applicants, were ordered to suspend construction and remove all structures already built in the settlement. Demolition orders were also issued in respect of a few of them; however, they were not executed.", "27. In 2013 the Municipality lodged criminal complaints against a number of Roma residents, including the first applicant, for unlawful occupation of real property under Article 338 of the Criminal Code. In the first-instance criminal proceedings, the defendants were found guilty and given suspended sentences of three months’ imprisonment, with three years’ probation. The first applicant did not provide any information on whether he had appealed and whether that conviction had become final.", "28. At the date of the lodging of the application, the applicants lived in an illegally built wooden hut located on land owned by the Krka Agricultural Cooperative, without access to water, sanitation or electricity. Subsequently the applicants informed the Court that they had moved into a wooden hut they had built approximately 200 m away from the previous dwelling owing to disagreements with their neighbours which had escalated into destruction of their property and physical aggression against them. They continued to live without a proper water supply and sanitation. The Government supplemented this information, adding that the first and second applicants had bought two plots of land and illegally constructed a building and two animal sheds without a building permit.", "29. In discussions between the Škocjan Municipality and the relevant State authorities it was decided that the Municipality could not ensure individual water connections to illegally built buildings, since such a solution would contravene the domestic legal order. However, in order to comply with the national and international standards of access to water, it was decided that a group water-distribution connection would be built in the settlement, on land belonging to the Municipality. The residents would be able to install individual water connections at their own expense, as provided by the relevant legislation. As regards water bills, it was agreed that a local commission on Roma issues should be engaged in a process of mediation to find a suitable solution.", "30. The Dobruška vas 41 settlement where the applicants reside has been connected to the public water supply system since 2011. The water supply system consists of one group water-distribution connection (a group water ‑ access point) installed on the initiative and at the expense of the Škocjan Municipality. Nine individual connections were installed from the distribution connection to the individual users’ homes. In 2015 water was supplied to seven individual connections.", "31. Initially, nineteen households were interested in obtaining individual connections, including the applicants’. Only nine households subsequently joined the water supply system by committing to pay their respective shares of the total consumption. In 2015 the average monthly cost of water for a household amounted to approximately EUR 9.", "32. The applicants did not apply to join the water supply system. According to them, while living at a previous location, they had been denied access to the group water-distribution connection by their neighbours, who had not allowed them to lay a water pipe under “their” land. This issue had also been raised in a letter sent to the mayor of the Škocjan Municipality by the Human Rights Ombudsman in December 2012. The Government submitted that the applicants could have avoided the neighbours’ property and laid the pipes along the road, to which the applicants responded that they had not been informed of the possibility of connecting to the water system in this way. The Government also submitted that, after the move to the new location, the applicants had neither applied for an individual water connection, nor verified whether their new building could be connected to the group water-distribution connection.", "33. The residents of the Škocjan Municipality also have drinking water available from the village fountain. The fountain, where the applicants obtain their drinking water, is approximately 1.8 km away from the applicants’ hut; it is fitted with a tap and the water has a constant temperature of 14˚C. According to an analysis by the National Laboratory for Health, the Environment and Food, the water complies with the applicable standards and is considered safe, that is to say fit to use for drinking, cooking or washing. Some residents of the Škocjan Municipality (Vinji Vrh), whose households are not connected to the public water ‑ distribution system, supply themselves with water from the fountain, while for sanitary purposes they use rainwater or water supplied by the fire brigade.", "34. As regards the sewerage system, at the material time the Škocjan Municipality had no public discharge or facility for treatment of urban wastewater. Buildings producing urban wastewater were equipped with septic tanks or cesspits, while newer buildings had small wastewater treatment plants. Septic tanks and small wastewater plants were funded by the owners of buildings where urban wastewater was produced. The public municipal utility service carried out the emptying of cesspits and small wastewater treatment plants (taking out mud and sludge). A wastewater treatment plant was under construction.", "35. As regards the financial situation of the applicants, at the material time the first and second applicants were receiving monthly child benefit in the amount of EUR 1,556.97, social assistance in the amount of EUR 868.80, and a parental benefit in the amount of EUR 252.04. Their two adult daughters, Ms Pamela Novak (the third applicant) and Julija Novak (the fourth applicant), were receiving monthly social assistance in the amount of 269.20 EUR each. The applicants were therefore receiving social benefits in the monthly amount of EUR 2,947.01. In 2016, however, those benefits were increased to EUR 3,299.85 per month. Moreover, the applicants were receiving EUR 120-130 per month as reimbursement for the costs of transporting their four children from their home to a bus station about 10 km away, from where they continued their journey to school by local bus.", "III. STATES PARTIES’ OBLIGATIONS", "General legal obligations", "17. While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations in relation to the right to water, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2, para. 2) and the obligation to take steps (art. 2, para.1) towards the full realization of articles 11, paragraph 1, and 12. Such steps must be deliberate, concrete and targeted towards the full realization of the right to water.", "...", "Specific legal obligations", "20. The right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfil.", "...", "(c) Obligations to fulfil", "25. The obligation to fulfil can be disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires the State to take positive measures to assist individuals and communities to enjoy the right. The obligation to promote obliges the State party to take steps to ensure that there is appropriate education concerning the hygienic use of water, protection of water sources and methods to minimize water wastage. States parties are also obliged to fulfil (provide) the right when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal.", "26. The obligation to fulfil requires States parties to adopt the necessary measures directed towards the full realization of the right to water. The obligation includes, inter alia, according sufficient recognition of this right within the national political and legal systems, preferably by way of legislative implementation; adopting a national water strategy and plan of action to realize this right; ensuring that water is affordable for everyone; and facilitating improved and sustainable access to water, particularly in rural and deprived urban areas.”", "5. Report of the special rapporteur on the human right to safe drinking water and sanitation on her mission to Slovenia (24-28 May 2010)", "57. The then special rapporteur, Catarina de Albuquerque, noted in her Report that at the time of her visit, nearly 100% of the population in Slovenia had access to safe water and 86% of the population were connected to the public water supply system. A comprehensive system of water-quality testing was implemented at the national and municipal levels and tap water in Slovenia met European Union and WHO standards. Slovenia had established strict water-protection zones to prevent the contamination of water sources by agriculture, industry and other activities. Regular tests were conducted by 300 monitoring stations throughout the country to assess water quality. Overall, the special rapporteur concluded that Slovenia had a good framework and system in place for ensuring the provision of safe water to the general population.", "58. Concerning sanitation, over half of the population were connected to a wastewater treatment facility, and the Government was making significant efforts to increase this number further. Where people were not connected to sewerage, they generally had cesspools.", "59. As regards the situation of the Roma and their access to safe water, the special rapporteur noted at the outset that while official statistics reported over 3,000 Roma people were living in Slovenia, some estimates were as high as 10,000, not taking into account those Roma people who were not settled. According to the findings of an analysis on the theme “Territorial issues of Roma settlements in Slovenia” prepared by an expert group tasked to deal with the spatial problems of Roma settlements, about twenty-one of ninety-five settlements in Prekmurje and Dolenjska had no access to water, either from public water works or from a local water source. Many of them also had no access to sanitation.", "60. In order to be connected to the water and sanitation networks in Slovenia, one had to apply to the municipality and present evidence of ownership and a building permit, among other documentation. Although Roma communities had been present in Slovenia for centuries, their settlements had frequently been established in an irregular manner. According to the Report, the authorities had used the “illegality” of the settlements as a principal justification for not connecting these communities to water and sanitation services.", "61. The special rapporteur noted with appreciation that some municipalities had found positive solutions to address the sometimes difficult and complex problems associated with the Roma community in Slovenia. For example, some municipalities had waived the requirements outlined above in order to facilitate access to water and sanitation.", "62. With regard to water, the special rapporteur pointed out that while household connections were the ideal solution, in the meantime efforts should be made to find interim solutions. Such solutions could include extending the network to a public water point that would be available to all people living in the settlement, or delivering safe water in tankers. Additionally, urgent measures were necessary to improve the current status of sanitation in many Roma settlements. As with water, interim measures were critical. The special rapporteur pointed out that there were an increasing number of sanitation technologies to choose from that did not require connection to the network.", "B. Council of Europe instruments", "1. Recommendation Rec(2001)14 of the Committee of Ministers to member States on the European Charter on Water Resources", "63. Paragraph 5 of the European Charter on Water Resources recognises the right to water in the following terms:", "“Everyone has the right to a sufficient quantity of water for his or her basic needs.", "International human rights instruments recognise the fundamental right of all human beings to be free from hunger and to an adequate standard of living for themselves and their families. It is quite clear that these two requirements include the right to a minimum quantity of water of satisfactory quality from the point of view of health and hygiene.", "Social measures should be put in place to prevent the supply of water to destitute persons from being cut off.”", "2. Resolution 1693 (2009) of the Parliamentary Assembly on water: a strategic challenge for the Mediterranean Basin", "64. The Parliamentary Assembly, stressing that access to water should be recognised as a fundamental human right because it is essential to life on earth and is a resource that must be shared by humankind, and acknowledging that primarily drinking-water resources will become increasingly rare, at a time when needs are increasing, recommended member and non-member States to, inter alia, (a) take the measures needed to ensure that everyone has access to water and sanitation; (b) decentralise water management systems to make them the responsibility of local and regional authorities, and give the latter the necessary legal powers and financial resources; and (c) take steps to make water sanitation techniques more generally available.", "3. Resolution 1809 (2011) of the Parliamentary Assembly on water – a source of conflict", "65. The Parliamentary Assembly pointed out that access to safe drinking water and sanitation was recognised as a human right by the United Nations, and noted that fresh water is a limited, fragile resource, but one which is vital for humankind. Regretting that one in six of the world’s inhabitants still did not have access to water and that almost one person in two had to live without a wastewater drainage system, the Parliamentary Assembly recommended that member and non-member States, inter alia, recognise that access to water is a fundamental human right, in line with the United Nations General Assembly Resolution 64/292 of 28 July 2010 and United Nations Human Rights Council Resolution 15/9 of 30 September 2010.", "4. European Commission against Racism and Intolerance (ECRI)", "66. In its Report on Slovenia (fourth monitoring cycle) adopted on 17 June 2014, ECRI noted with concern the lack of access to a safe water supply in or near some settlements. Referring to a study according to which 17% of Roma obtained water from springs or neighbours, 2% from cisterns and 2% had no access to running water at all, ECRI emphasised that the lack of access to safe drinking water had a direct negative impact on the health of the Roma communities concerned, as well as indirect repercussions on their everyday life in other areas, such as education and employment.", "67. Observing that provision of water was the competence of municipalities, ECRI established that most of them had waived the obligatory requirement of prior legalisation and had provided access to piped water for informal settlements. However, the Roma settlement of Goriča vas in Ribnica, home to approximately seventy people, around twenty-two of them children of school age, had no water supply, no electricity and no sewerage system.", "68. ECRI urged the national authorities to take immediate action to ensure that all Roma obtained practical access to a safe water supply in or in the immediate vicinity of their settlements.", "69. In its Conclusions on the implementation of the recommendations in respect of Slovenia subject to interim follow-up, adopted on 23 June 2017, ECRI noted that the Slovenian authorities had opened a public tender for projects relating to utility infrastructure, including water collector wells and pipelines connecting Roma settlements to the distribution system. The amount of EUR 2 million in total was budgeted for the years 2016 and 2017.", "70. The authorities also informed ECRI that in September 2016 they had provided exceptional funding of EUR 30,000 to ensure access to safe drinking water for the Goriča vas settlement in Ribnica, as well as for two premises in Dobruška vas in Škocjan. However, according to NGOs, only one settlement received water cisterns; as they were not insulated, the water froze in winter. No water was supplied to other informal settlements.", "71. Despite some efforts made by the Slovenian authorities, ECRI found that the lack of practical access to a safe water supply continued to be a problem for many Roma. It concluded that its recommendation on the provision of safe water supply had not been implemented.", "5. Report of the Commissioner for Human Rights of the Council of Europe on his visit to Slovenia (20-23 March 2017)", "72. The then Commissioner for Human Rights, Nils Muižnieks, noted in his Report that while the authorities had installed water cisterns in Dobruška vas at the end of 2016 as a short-term solution to ensure access to drinking water, the inhabitants complained that the cisterns were not filled regularly and the water did not stay in them. Most people therefore obtained their water from a stream polluted with sewage and waste from a meat ‑ processing plant nearby. Drinking from or bathing in contaminated streams caused illnesses, such as diarrhoea and skin rashes, to which the children were particularly prone. The lack of water prevented the inhabitants from maintaining basic hygiene. As a result, children were mocked and avoided in school, and adults found it difficult to obtain or keep employment.", "73. In discussions with the Commissioner, various interlocutors agreed that there was a lack of political will on the part of certain local municipalities in the Dolenjska region to resolve the legal status of Roma settlements and to improve the inhabitants’ living conditions. They further noted that the State was not putting adequate pressure on the municipalities regarding the matter.", "74. The Commissioner for Human Rights made a general recommendation to the national authorities with regard to poverty reduction and social inclusion. He encouraged the Government to define more clearly the targets of their social policies, so as to enable an assessment of the results, and not simply the level of their implementation. Social policies should be grounded on the relevant national and international human rights framework ensuring that all persons are protected in an equal and non ‑ discriminatory manner.", "C. Statistical data on European population connected to public water supply and to urban wastewater collecting systems", "75. Access to improved drinking water sources is increasing, rising from 76% of the global population in 1990 to 91% in 2015. Nevertheless, according to the available Eurostat data in 2015, the percentage of the European resident population which had access to drinking water through a connection to a public water supply system varied substantially from one country to another, ranging from less than 64% to 100%.", "76. Also, connection to urban wastewater treatment systems has improved throughout Europe over recent decades. According to the European Environment Agency, in central European countries, connection rates are now at 97%, with about 75% receiving tertiary treatment, the final stage of treating wastewater before it is discharged into the environment. The rates of connection to the urban wastewater systems are generally lower in southern, south-east and eastern Europe, with levels at about 71%." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "36. The relevant provisions of the Constitution provide as follows:", "Article 14 (As amended by the Constitutional Act amending Article 14 of the Constitution of the Republic of Slovenia, 15 June 2004 (Official Gazette of the Republic of Slovenia no. 69/04)", "(Equality before the Law)", "“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political, or other conviction, material standing, birth, education, social status, disability, or any other personal circumstance.", "All are equal before the law.”", "Article 65", "(Status and Special Rights of the Romany Community in Slovenia)", "“The status and special rights of the Romany community living in Slovenia shall be regulated by law.”", "Article 70a (Introduced by the Constitutional Act amending Chapter III of the Constitution of the Republic of Slovenia, which was enacted on 17 November 2016 and came into force on 25 November 2016 (Official Gazette of the Republic of Slovenia no. 75/16))", "(Right to Drinking Water)", "“Everyone has the right to drinking water.", "Water resources shall be a public good managed by the State.", "As a priority and in a sustainable manner, water resources shall be used to supply the population with drinking water and water for household use and in this respect shall not be a market commodity.", "The supply of the population with drinking water and water for household use shall be ensured by the State directly through self-governing local communities and on a not-for-profit basis.”", "B. Relevant legislative and regulatory acts", "1. Spatial development, spatial planning and the provision of public utility services in respect of construction land", "37. Spatial development and spatial planning at the local level falls within the competence of municipalities, which, in accordance with the Local Self-Government Act, are independent in managing local matters in the public interest. In terms of spatial planning, that involves first and foremost land-use allocation in order to ensure rational and efficient use of land. To that end, municipalities adopt municipal spatial plans and detailed municipal spatial plans based on the Spatial Planning Act.", "38. Under this legal framework, an area must be identified as construction land before any construction project can be submitted for a building permit. The power to determine the types of public utility infrastructure to be built in individual areas is conferred upon municipalities. The latter are also responsible for constructing the public utility infrastructure, which is financed from municipal budgets, the State budget and the community infrastructure levy. This levy is a contribution to the costs of construction of the public utility infrastructure paid by individual investors. By paying the community infrastructure levy, the person liable for payment, usually the owner of the construction land, is guaranteed connection to the already built infrastructure.", "39. The Construction Act provides that any construction of a new structure, a re-built edifice, a replacement building, and so forth, cannot commence until a final building permit has been obtained. Before a building permit can be issued, the relevant administrative body verifies, inter alia, whether the relevant structure will be provided with the minimum level of public utility services; those include drinking-water supply, electricity supply, wastewater discharge and access to public roads. The investor must also show that a request for an assessment of the community infrastructure levy has, or will, be lodged.", "40. The Construction Act explicitly prohibits the installation of public utility connections to illegally built structures.", "41. As regards legalisation of illegally built buildings and structures, they are considered as new constructions requiring a building permit. Therefore, all of the above-mentioned conditions must be met in order to legalise a building, including the provision of the minimum level of public utility services.", "2. Safe drinking water and sanitation", "42. There is a comprehensive regulatory framework governing the use of water in Slovenia. Water as a public good and public services related to its use, to water facilities and equipment are regulated by the Water Act. Different types of checks on water with the aim of ensuring its safety and therefore its suitability for domestic use are provided for in the Regulation of Sanitary Suitability of Foodstuffs (Products and Materials Coming into Contact with Foodstuffs) Act. Furthermore, the Rules on drinking water define the requirements to be satisfied with regard to drinking water in order to protect human health from adverse effects, and the Decree on the Methodology for Determining Prices of Municipal Utility Services for Environmental Protection provides the methodology for determining prices of obligatory public municipal utility services, such as the drinking-water supply.", "43. Individual tasks to be performed within the scope of the municipal utility service of water supply are determined in the Decree on Drinking-Water Supply. In principle, the municipal service of water supply is provided throughout the area of a municipality to buildings occupied by people and structures where drinking water is used for watering animals. By way of exception, private supply of drinking water may be ensured in respect of settlements and individual buildings or structures where the municipality does not provide the public utility service. Pursuant to the Decree, settlement areas with fifty or more permanent residents and a population density of more than five residents per hectare are to be equipped with a public water-distribution system. Subject to certain derogations, also settlement areas with less than fifty residents should be equipped with such a system.", "44. The planning and construction of the connection to the public water ‑ distribution system should be ensured by the owner of the building or other structure that is to be connected. The Decree prohibits the provider of the public utility service from connecting to the public water-distribution system any buildings or structures that do not comply with the applicable rules on the discharge and treatment of urban wastewater. Both the Ribnica and Škocjan municipalities have adopted ordinances on drinking-water supply that are, in all essential provisions, aligned with the Decree and other relevant regulations.", "45. As regards sanitation, the tasks performed within the scope of obligatory municipal utility service are determined in the Decree on the Discharge and Treatment of Urban Wastewater and Run-off Rainwater. The public utility service consists of discharging the wastewater into the public sewerage system, treating the discharged water, collecting urban wastewater and sludge from cesspits and from small urban wastewater plants, treatment of such wastewater and sludge in an urban or combined wastewater plant, and so forth.", "46. Municipalities have a duty to provide the public utility service of sanitation throughout their respective areas; however, certain derogations regarding the scope of the service are allowed. Specifically, owners of buildings outside the designated settlement areas and where there is no public sewerage system must ensure that urban wastewater is discharged and treated in small urban wastewater treatment plants. Specific obligations related to the scope and methods of the public utility service provision are regulated by the municipal acts. Both the Ribnica and Škocjan municipalities have adopted ordinances on the discharge and treatment of urban wastewater that provide in detail the scope of the respective public municipal utility services and the locations where the urban wastewater is treated. For an owner of a property to be connected to the public sewerage system, he or she must be in possession of a final building permit and/or proof of the right to build.", "3. Situation of the Roma community", "47. Members of the Roma community in Slovenia are entitled to individual and community rights in the same way as all other citizens of the Republic of Slovenia. Their status is defined as a “special ethnic community” entitled to collective, special rights. In 2007, the Roma Community in the Republic of Slovenia Act was enacted. It acknowledges the special status of the Roma community in Slovenia and its successful integration into Slovene society. The Act further defines the special rights of the Roma community which are accorded to its members in addition to the rights and obligations appertaining to all Slovenian citizens. Pursuant to section 3, the State is to provide for the implementation of the special rights of the Roma community in the areas of education, culture, employment, spatial planning and environmental protection, health and social security, as well as notification and participation in public affairs pertaining to the Roma community. Moreover, the Act determines the competences of national and local authorities for the implementation of those rights and provides for cooperation of the representatives of the Roma community in implementing their rights and obligations as provided by law.", "48. Section 5 of the Act provides that the national and local authorities must include Roma settlement issues and improvement of living conditions of the Roma community members in their spatial plans. Pursuant to this section, the system of spatial planning in respect of Roma settlements is to be realised through appropriate local planning solutions. However, the initiative for planning of those settlements may under certain conditions be transferred to or taken over by the Government. The Government themselves may enact spatial planning regulations concerning Roma settlements in cases where a lack of legal regulation or municipal infrastructure could result in a serious threat to health, a long-standing disturbance of the public order or a permanent threat to the environment. In such cases, the tasks taken on by the State are carried out with State funds.", "49. The interests of the Roma community in relation to the national authorities are represented by the Roma Community Council of the Republic of Slovenia, an umbrella organisation of the Roma community (section 9 of the Act). The Council consists of representatives of the Roma Association of Slovenia and the representatives of the Roma community in municipal councils. Pursuant to the Roma Community Act, the Government have a duty to adopt, in cooperation with the Roma Community Council and the municipalities, a programme of measures providing for obligations and tasks to be carried out at the national and local levels (section 6 of the Act). At the national level, the monitoring and protection of the special rights of the Roma community are primarily ensured by the Office of the Government of the Republic of Slovenia for National Minorities ( Urad Vlade Republike Slovenije za narodnosti ).", "50. In March 2010 the Slovenian Government adopted a National Programme of Measures for Roma for the Period 2010-15 in which it defined priority areas – housing, education, employment and healthcare – which required specific short-term and long-term measures to improve the situation. The Government stated that the Roma settlements had not been subject to permanent regulation or controlled development. The absence of comprehensive measures and the lack of investment funds had resulted, inter alia, in poor public utilities. The Government pointed out that under the Spatial Planning Act, the municipalities were required to prepare municipal spatial plans, and encouraged them to include Roma settlements in those strategic plans, so as to provide for the redevelopment of such settlements which were mostly unlawfully occupied and the result of haphazard construction.", "51. In the Fourth report on the situation of the Roma community in Slovenia (2015), in which the Government presented the implementation of the Roma Community Act and the National Programme of Measures for Roma, they noted that some municipalities had not yet adopted municipal spatial plans, which had prevented the Roma settlement in those areas from benefiting from legalisation and spatial development. Nor had some municipalities opened calls for the submission of applications for public rental housing which would have allowed the members of the Roma community to apply for such housing, should they so wish. The Government submitted that the State did not have any means of coercing the municipalities into action. They did note, however, that housing issues were closely related to the enjoyment of human rights such as access to safe drinking water and sanitation. The State had a duty to provide for the enjoyment of those rights at all levels, as provided in a number of international documents, and the municipalities should act in accordance with those instruments.", "III. RELEVANT INTERNATIONAL AND EUROPEAN LAW MATERIAL", "A. United Nations instruments", "1. Convention on the Rights of the Child", "52. This Convention recognises the right of the child to clean drinking water in the context of the right to health as follows:", "Article 24", "“1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.", "2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:", "...", "(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;", "...”", "2. Resolution 64/292 on the human right to water and sanitation adopted by the General Assembly (28 July 2010)", "53. The Resolution recognises the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights, and calls upon States and international organisations to provide financial resources, capacity building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.", "3. Resolution 18/1 on the human right to safe drinking water and sanitation adopted by the Human Rights Council (12 October 2011)", "54. The Human Rights Council expressed its concern that approximately 884 million people lacked access to improved water sources and more than 2.6 billion people did not have access to improved sanitation. Affirming the need to focus on local and national perspectives in considering the issue, the Human Rights Council reaffirmed the primary responsibility of States to ensure full realisation of all human rights. It held that they should take steps, nationally and through international assistance and cooperation, especially economic and technical, to the maximum of their available resources, to achieve progressively the full realisation of the right to safe drinking water and sanitation by all appropriate means, including particularly the adoption of legislative measures in the implementation of their human rights obligations.", "55. The Resolution thus calls upon States to, inter alia, continuously monitor and regularly analyse the status of the realisation of the right to safe drinking water and sanitation; assess existing policies, programmes and activities in the sectors of water and sanitation, giving due consideration to wastewater management, including treatment and reuse, and to monitor resources allocated to increase adequate access, as well as to identify actors and their capacity; assess whether the existing legislative and policy framework is in line with the right to safe drinking water and sanitation, and to repeal, amend or adapt it in order to meet human rights standards and principles; ensure free, effective, meaningful and non-discriminatory participation of all people and communities concerned, particularly people living in disadvantaged, marginalised and vulnerable situations.", "4. General Comment no. 15 (2002) on the right to water adopted by the Committee on economic, social and cultural rights (“the CESCR”)", "56. In its twenty-ninth session from 11 to 29 November 2002, the CESCR adopted General Comment no. 15 (2002) on the right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights) which, in so far as relevant, provides:", "“II. NORMATIVE CONTENT OF THE RIGHT TO WATER", "...", "12. While the adequacy of water required for the right to water may vary according to different conditions, the following factors apply in all circumstances:", "(a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. The quantity of water available for each person should correspond to World Health Organization (WHO) guidelines. Some individuals and groups may also require additional water due to health, climate, and work conditions;", "(b) Quality. The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health. Furthermore, water should be of an acceptable colour, odour and taste for each personal or domestic use.", "(c) Accessibility. Water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions:", "(i) Physical accessibility: water, and adequate water facilities and services, must be within safe physical reach for all sections of the population. Sufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace. All water facilities and services must be of sufficient quality, culturally appropriate and sensitive to gender, life-cycle and privacy requirements. Physical security should not be threatened during access to water facilities and services;", "(ii) Economic accessibility: Water, and water facilities and services, must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other Covenant rights;", "(iii) Non-discrimination: Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds; and", "(iv) Information accessibility: accessibility includes the right to seek, receive and impart information concerning water issues.", "...", "Non-discrimination and equality", "...", "14. States parties should take steps to remove de facto discrimination on prohibited grounds, where individuals and groups are deprived of the means or entitlements necessary for achieving the right to water. States parties should ensure that the allocation of water resources, and investments in water, facilitate access to water for all members of society. Inappropriate resource allocation can lead to discrimination that may not be overt. ...", "15. With respect to the right to water, States parties have a special obligation to provide those who do not have sufficient means with the necessary water and water facilities and to prevent any discrimination on internationally prohibited grounds in the provision of water and water services.", "...", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "77. In view of the connection between the applications as regards the facts and the substantive questions that they both raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.", "II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS", "A. Anonymity, abuse of the right of application, lack of victim status, and failure to observe the six-month time-limit in respect of Aleks Kastelic, the second applicant in case no. 24816/14", "1. The parties’ submissions", "78. The Government asserted that no person by the name of Aleks Hudorovič, born on 24 December 2007, could be found in the official records. They suggested that the second applicant’s real name was Aleks Kastelic, who had been born on 24 December 2007 and was the son of the first applicant and Ms Marija Kastelic. The second applicant had had that name since birth; therefore the Government argued that his application had been lodged under a false identity and should be considered anonymous and an abuse of the right of application. In support of the latter grounds for inadmissibility, the Government further submitted that the second applicant lived with his mother, in accordance with a custody agreement between his parents. In this connection, the Government claimed that the second applicant’s place of residence was connected to the public water-distribution system and had a septic tank. Arguing that he thus had access to drinking water and sanitation facilities, the Government also maintained that he could not claim to be the “victim” of a violation of the Convention within the meaning of Article 34.", "79. Furthermore, the Government challenged the validity of the power of attorney signed by the first applicant on behalf of the second applicant. According to the Government, the first applicant had no standing to act on behalf of the second applicant, since his mother had custody of the child. Noting that the present case did not involve a conflict between the parents over the second applicant’s interests, the Government argued that the first applicant’s position as a father could not be regarded as a sufficient basis to bring an application on behalf of the second applicant.", "80. The applicants disputed the Government’s allegations of an abuse of the right of application, submitting that they had merely given the incorrect name by mistake and that they had had no intention to mislead the Court. In their view, the identity of the second applicant was not in dispute; therefore, his application could not be considered anonymous. The representatives of the applicants pointed out that the applicants’ lack of education and their illiteracy, coupled with the language barriers, made communication with them very challenging.", "81. As regards the second applicant’s residence, the applicants submitted that despite the formal custody agreement granting custody to his mother, he spent much of his time with his father.", "82. Lastly, enclosed with their observations on the applications in question, the applicants submitted a new power of attorney on behalf of the second applicant signed by his mother, Ms Marija Kastelic.", "2. The Court’s assessment", "83. The Court observes that although the respective positions of the Government and the applicants differ, they both relate to the application of Article 34 of the Convention, taken alone or in conjunction with Article 35 § 2 (a). These provisions, in so far as relevant, are worded as follows:", "Article 34", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "Article 35", "“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.", "2. The Court shall not deal with any application submitted under Article 34 that", "(a) is anonymous ...", "3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:", "(a) the application is ... an abuse of the right of individual application ...”", "84. The Court has held that an application is to be regarded as anonymous if the case file does not contain any information enabling the Court to identify the applicant (see “Blondje” v. the Netherlands (dec.), no. 7245/09, ECHR 2009). In the present case, the Court notes that the applicants correctly stated most of the facts pertaining to the second applicant’s identity, notably his first name, date of birth and family relationship with Mr Branko Hudorovič, the first applicant in case no. 24816/14. However, they made an error by attributing to the second applicant an incorrect surname. He was improperly designated by the surname of his father, whereas in fact he bears the surname of his mother.", "85. Nevertheless, as is evident also from the Government’s objection in which they identified the correct name of the second applicant, the incorrect naming did not prevent his identification. The Court considers that despite this error on the part of the applicants, the facts and circumstances set out in the application sufficed to dispel any doubts as to the second applicant’s identity. His identity as Aleks Kastelic was subsequently explicitly confirmed by the applicants’ representatives, who submitted that the incorrect name had appeared on the application form owing to the difficulties in communicating with the applicants.", "86. In the Court’s opinion, the case file therefore contained sufficient information enabling it to identify the second applicant (contrast “Blondje”, cited above). Furthermore, none of the elements in the case file, nor the attitude of the applicants, imply that an attempt was made to mislead the Court and pass the second applicant off under a false identity. Therefore, the Court finds that the application cannot be regarded as anonymous or an abuse due to the second applicant’s surname being incorrectly indicated in the initial application.", "87. Secondly, the Government disputed the second applicant’s victim status and claimed that he had abused the right of individual application on account of the fact that he had been residing with his mother and had had access to drinking water and sanitation facilities at her place of residence. The Government further challenged the validity of the power of attorney signed by the first applicant on behalf of the second applicant, arguing that it should have been given by the second applicant’s mother, who had been granted custody of him and was therefore his legal representative.", "88. As regards the first limb of this objection, the Court observes that the Government’s argument focused on the second applicant’s place of residence; however, it was not disputed that the first applicant had contact with the second applicant, as confirmed also by the report on the family situation prepared by the Ribnica Social Work Centre (see paragraph 6 above). Nor did the Government dispute that the second applicant spent a considerable amount of time at the first applicant’s residence. Therefore, the Court can accept the applicants’ submission that the second applicant, while maintaining his primary residence with his mother, at the material time also spent time at the first applicant’s residence. In the Court’s opinion, while the possibly limited amount of time spent there can affect the assessment of certain aspects of the second applicant’s complaints, it cannot be decisive for the decision on his victim status; nor can it constitute an abuse of the right of application. The Court considers that, to the extent that the second applicant actually lives at the first applicant’s residence, he endures the same living conditions as the first applicant and is therefore entitled to complain about them to the Court.", "89. As to the second limb of the Government’s objection, namely the alleged invalidity of the power of attorney, the Court observes that the case before it does not raise a question of family law, but, rather, hinges on the second applicant’s living conditions. It therefore takes the view that any person who is entitled under domestic law to represent the second applicant in that type of proceedings can also act on his behalf before the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000 ‑ VIII, with further references). The Government submitted evidence that the second applicant’s mother had been granted custody of him and argued that she was therefore his sole legal representative. The applicants did not dispute this, but submitted another power of authority on the second applicant’s behalf, signed by his mother. The Court is therefore satisfied that the applicants have rectified any error regarding the question of which of the parents was entitled to represent the second applicant in the proceedings before the Court. It accordingly finds that the second applicant is entitled to claim to be a victim of the alleged violations of the Convention.", "90. Furthermore, the Court notes that shortcomings in applications such as those examined above may, in principle, also have implications within the meaning of Rules 45 and 47 of the Rules of Court, which set out the formal requirements regarding, inter alia, a duly completed power of attorney or authority form (Rule 45 § 3 and Rule 47 § 1 (c)) and the indication of the applicant’s name on the application form (Rule 47 § 1 (a)). Failure to comply with the requirements regarding the application form may have direct consequences for the determination of the date of introduction of the application for the purposes of Article 35 § 1 of the Convention (see, with regard to the authority form, Kaur v. the Netherlands (dec.), no. 35864/11, § 13, 15 May 2012, and Kokhreidze and Ramishvili v. Georgia (dec.), nos. 17092/07 and 22032/07, § 17, 25 September 2012). Specifically, the latter date is in principle decisive for the purpose of assessing whether an application has been lodged within a period of six months from the date on which the final decision was taken in the domestic proceedings.", "91. In the present case, however, the Court does not find the date of introduction of the application to be decisive for the assessment in question, since the situation complained of concerns inadequate living conditions coupled with an alleged continued failure of the authorities to act to improve them. In this connection, the Court observes, without prejudging the merits of the present case, that in the case of Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/01, §§ 107-09, ECHR 2005-VII (extracts)), comparable complaints of poor living conditions, albeit in combination with a number of other factors pertaining to the applicants’ rights to respect for their private and family life and their homes, were found by the Court to amount to a violation of Article 8 of the Convention of a continuing nature. The Court considers that in this case the alleged prolonged failure of the authorities to ensure access to water and sanitation, which according to the applicants persists to this day, also amounts to a continuing situation. The Court further reiterates that in cases where there is a continuing situation against which no effective domestic remedy is available, the six-month period runs from the cessation of that situation (see Oliari and Others v. Italy, nos. 18766/11 and 36030/11, §§ 96-97, 21 July 2015, with further references). Given that no objection of non-exhaustion of domestic remedies was raised by the Government, in the context of the present case this means that irrespective of what is deemed to be the date of introduction of the application, it cannot be rejected as out of time.", "92. The Government’s objections with regard to the second applicant in case no. 24816/14 must therefore be dismissed.", "B. Lack of victim status and failure to observe the six-month time-limit in respect of Pamela Novak, the third applicant in case no. 25140/14", "1. The parties’ submissions", "93. The Government pointed out that Ljubo Novak and Dunja Kočevar, the first and the second applicants in case no. 25140/14, had signed a power of attorney for all twelve of their children, although Pamela Novak, who had been born on 31 October 1994, had already reached the age of majority by the date the application had been lodged. Arguing that the third applicant should have signed the power of attorney by herself, the Government challenged its validity and, in substance, the third applicant’s victim status.", "94. Enclosed with the applicants’ observations on the applications in question, the third applicant submitted a new power of attorney bearing her own signature. In addition, the applicants’ representatives, reiterating the same argument as the one set forth above in respect of Aleks Kastelic (see paragraph 80 above), argued that the applicants’ lack of education and poor command of the Slovene language made communication with them very difficult.", "2. The Court’s assessment", "95. The Court finds that its considerations with regard to the rectification of errors in the application form and their implications for the applicant’s status as a victim and the fulfilment of the six-month requirement, as set out above in the case of Aleks Kastelic (see paragraphs 89 and 91 above), apply equally to the third applicant. The Court therefore finds that the third applicant is entitled to claim to be a victim of the alleged violations of the Convention. Likewise, her application cannot be rejected as out of time.", "96. The Government’s objection with regard to the third applicant in case no. 25140/14 must therefore be dismissed.", "C. Abuse of the right of application and lack of victim status in respect of all applicants, relating to access to drinking water and sanitation", "1. The parties’ submissions", "97. As regards the applicants from the Goriča vas settlement, the Government submitted that the applicants had failed to inform the Court that the Ribnica Municipality had co-financed the purchase of a water tank for the Goriča vas settlement and that the Ribnica fire brigade had regularly supplied water to the residents of the settlement. Moreover, regarding sanitation facilities it had been agreed that the residents would buy and install them at their own expense. Furthermore, the Government claimed that the Ribnica Municipality had intended to build several terraced houses in the Lepovče Roma settlement and relocate the Roma from the Goriča vas settlement to the newly built settlement, but they had refused to move there, without stating any reasons for their decision.", "98. Secondly, as regards the applicants from the Dobruška vas 41 settlement, the Government submitted that they had failed to inform the Court of the existence of a public water-distribution system in the settlement. According to the Government, the applicants could have been connected to the distribution network at any time since 2011, and were still able to apply for an individual connection if they so wished. In addition, drinking water was also freely available from a village fountain throughout the year.", "99. The Government argued that the aforementioned omissions on the part of the applicants constituted an abuse of the right of application. Furthermore, since in the Government’s opinion the applicants had sufficient access to drinking water, they could not claim to be victims of the alleged violations of the Convention.", "100. In response, the applicants from the Goriča vas settlement asserted that they did not have a reasonably accessible water supply or sanitation, which had been confirmed by the UN special rapporteur on the human right to safe drinking water and sanitation (see paragraph 59 above) and the Council of Europe Commissioner for Human Rights (see paragraph 73 above). The deliveries of water to the water tanks had not been mentioned since they had been rare and had had only a negligible effect on the applicants’ daily life. As for the possibility of resettlement, the applicants argued that it had never been a realistic possibility owing to the opposition of the local majority population.", "101. The applicants from the Dobruška vas 41 settlement alleged that they had been unable to connect to the public water-distribution system owing to their neighbours’ obstruction, which had been well known to the Government, as had been mentioned in several documents as well as in a report by the Human Rights Ombudsman. As for the village fountain, it had been located 2 km away from their home, so the applicants had not considered it as providing reasonable access to water.", "102. The applicants argued that the Government’s allegation of the abuse of the right of application was unfounded and a misinterpretation of the concept. They had merely presented facts they had considered relevant for their applications. Their ultimate claim had been that they had not had access to water and sanitation and, as a result, had lived in conditions unworthy of human dignity. In the applicants’ opinion, the information provided by the Government was either inaccurate or irrelevant to their personal situations; hence they contested both objections raised by the Government.", "2. The Court’s assessment", "103. The Court observes that the main point of controversy between the parties concerns the interpretation of what constitutes adequate access to drinking water and sanitation and, in this connection, what is the scope of the obligations borne by the State and whether the respondent State fulfilled those obligations. The Government based their objections on the premise that the measures already taken for the purpose of providing the applicants with access to drinking water had been sufficient, whereas the applicants considered them wholly inadequate, arguing that the marginal importance of those measures had led them to not even mention them in their submissions to the Court.", "104. The Court considers that the question of what constitutes adequate access to drinking water and sanitation is also the core issue to be examined on the merits.", "105. Accordingly, the Government’s objections in this regard must be joined to the merits.", "III. ALLEGED VIOLATIONS OF ARTICLES 3, 8 and 14 OF THE CONVENTION", "106. The applicants, relying on Article 3 and, a fortiori, Article 8 of the Convention, complained that their homes did not have access to basic public utilities, notably drinking water and sanitation. They further submitted that they had been subjected to a negative and discriminatory attitude by the local authorities, who had refused to address their disadvantaged situation in any meaningful manner. In this regard, they relied on Article 14 of the Convention in conjunction with Articles 3 and 8. These provisions provide as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. As regards the alleged violation of Article 8 of the Convention, and Article 14 taken in conjunction with Article 8", "107. The Court notes that the applicants’ complaints concern, first and foremost, an alleged failure by the State to provide them with adequate access to drinking water and sanitation, with consideration for their specific needs as members of the Roma community and their different lifestyle. In the Court’s opinion, the present case raises issues mainly under Articles 8 and 14 of the Convention. These complaints will therefore be examined first.", "1. Admissibility", "(a) The parties’ submissions", "108. Referring to the relevant case-law of the Court, the Government asserted that Article 8 of the Convention did not acknowledge a right to be provided with a home. They pointed out that the applicants themselves had chosen the locations where they had settled and set up their residences, and that they were free to change those locations at any time. The social benefits they received (see paragraphs 22 and 35 above ) enabled the applicants to live a decent life, which meant that if they were dissatisfied with their living conditions, they could change them, either by building sanitary facilities or by resettling.", "109. The applicants disputed the Government’s submissions, claiming that the lack of basic infrastructure such as running water and sanitation had resulted in hygiene problems and frequent diseases; they asserted that their discomfort, embarrassment and pain related to their living conditions, which were relevant to their enjoyment of Article 8 rights, in particular the right to respect for their private and family life. Moreover, their children were stigmatised, humiliated and unable to integrate into mainstream society because of the lack of the most basic amenities.", "(b) The third-party intervener", "110. The Human Rights Centre of the University of Ghent took the view that deplorable living conditions could raise an issue under both Articles 3 and 8 of the Convention. According to the third-party intervener, living conditions without access to water and sanitation fell within the scope of Article 8 in so far as they prevented individuals from enjoying their homes and affected their well-being, health and quality of life (it referred to Costache v. Romania (dec.), no. 25615/07, 27 March 2012). Referring to the Court’s case-law pertaining to environmental pollution and individuals’ living conditions, the third-party intervener pointed out that private and family life could be affected even where an individual’s health was not seriously endangered ( López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303-C).", "(c) The Court’s assessment", "111. The Court notes that certain questions with respect to the applicability of Article 8 of the Convention, taken alone and in conjunction with Article 14, may arise in the present case. It notes in this regard that the Government maintained that Article 8 of the Convention did not acknowledge a right to a home, while the applicants took the view that their living conditions fell within the scope of Article 8 (see paragraphs 108-109 above).", "112. As regards the question whether an individual’s living conditions may fall within the scope of Article 8, the Court reiterates that in the case of Moldovan and Others (cited above, § 105) the applicants’ overcrowded and unsanitary living conditions, which were caused by the authorities’ actions, fell within the scope of their right to respect for private and family life, as well as their homes.", "113. With respect to the applicants’ complaint concerning access to safe drinking water, the Court also has regard to its case-law on health and environmental risks resulting from water pollution. It notes that it has already had an opportunity to give judgment on the actual or potential risks related to, inter alia, contaminated water sources, and their link to an individual’s private life and home. In the cases of Dubetska and Others v. Ukraine (no. 30499/03, §§ 109-23, 10 February 2011) and Dzemyuk v. Ukraine (no. 42488/02, §§ 77-84, 4 September 2014), even in the absence of direct evidence of actual damage to the applicants’ health, the Court accepted that the respective applicants might have been affected by the water pollution at issue (see Dubetska and Others, cited above, § 111, and Dzemyuk, cited above, § 82). Furthermore, upon examination of the environmental concerns in question, the Court found that the elevated risk to the applicants’ health had constituted an interference with their private lives and homes which had attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention (see Dubetska and Others, cited above, §§ 118 ‑ 19, and Dzemyuk, cited above, §§ 83-84). In the two above-mentioned cases the Court acknowledged a direct link between the enjoyment of clean water sources and an individual’s health.", "114. The Court reiterates that Article 8 does not in terms recognise a right to be provided with a home (see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001 ‑ I), let alone a specific home or category of home – for instance, one in a particular location (see, mutatis mutandis, Ward v. the United Kingdom (dec.), no. 31888/03, 9 November 2004). It notes that the scope of any positive obligation to house the homeless is limited (see, mutatis mutandis, O’Rourke v. the United Kingdom (dec.), no. 39022/97, 26 June 2001).", "115. Furthermore, the Court refers to the case of Denisov v. Ukraine ([GC], no. 76639/11, §§ 103-14, 25 September 2018), where the Grand Chamber outlined, in the context of an employment dispute, two different approaches employed by the Court when examining whether cases involving Article 8 complaints fell within the ambit of “private life”. In particular, it distinguished between the reason-based approach, under which the Court examines whether there is a private-life issue in the underpinning reasons for the impugned measure, and the consequence-based approach, under which the Court analyses the effects of the impugned measure on the individual’s private life. If the latter approach is at stake, the threshold of severity assumes crucial importance and it is for the applicant to show convincingly that the threshold was attained in his or her case. The Court reiterates in this connection that the consequence-based approach applies also in the context of positive obligations incumbent on the State under Article 8 of the Convention (see, for example, Fadeyeva v. Russia, no. 55723/00, §§ 68-69, ECHR 2005 ‑ IV, where the Court stated that a certain minimum level of adverse effects of pollution on the individual’s health or quality of life had to be demonstrated for Article 8 to be engaged).", "116. The Court makes clear that access to safe drinking water is not, as such, a right protected by Article 8 of the Convention. However, the Court must be mindful of the fact that without water, human beings cannot survive. A persistent and long-standing lack of access to safe drinking water can therefore, by its very nature, have adverse consequences for health and human dignity, effectively eroding the core of private life and the enjoyment of a home within the meaning of Article 8. Therefore, when these stringent conditions are fulfilled, the Court is unable to exclude the possibility that a convincing allegation may trigger the State’s positive obligations under that provision. The existence of any such positive obligation and its potential content are necessarily determined by the specific circumstances of the persons affected, but also by the legal framework and the economic and social situation of the State in question. The Court considers that the question whether any positive obligations were triggered in the present case and the scope of such obligations, which are the core issues to be examined on the merits, are closely linked to the specific circumstances of the case and their level of seriousness. There is therefore a strong tie between the question of applicability and the merits in the assessment of whether or not a private-life issue is raised in the present case.", "117. Accordingly, the Court decides to join the issue of the applicability of Article 8 and Article 14 taken in conjunction with Article 8 to the merits of the case.", "118. The Court considers that the applicants’ complaints under Article 8 and Article 14 taken in conjunction with Article 8 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. As no other grounds for declaring these complaints inadmissible have been established, the Court declares them admissible.", "2. Merits", "(a) The parties’ submissions", "(i) The applicants", "119. Claiming that the lack of water and sanitation had serious repercussions on privacy and intimate life, the applicants took the view that the margin of appreciation accorded to the State under Article 8 should be particularly narrow in the specific circumstances of their cases.", "120. The applicants, relying on Winterstein and Others v. France (no. 27013/07, § 142, 17 October 2013), submitted that the way of life of the Roma community was to be considered an integral part of their identity. Their vulnerable position as a minority should have prompted the authorities to give special consideration to their needs and different lifestyle, both in the relevant regulatory planning framework and in concrete decisions in individual cases. The applicants furthermore argued that the national authorities had at least implicitly acknowledged the need for special measures to address the long-standing discrimination against the Roma community. They pointed out that various policy papers and research had been prepared favouring various types of legalisation in respect of Roma settlements, given that in Slovenia the Roma were not nomadic, but rather lived a settled life.", "121. Those strategic documents had been implemented in some municipalities, with many successful projects in organising Roma settlements in Slovenia, either through amendments to land planning and legalisation of existing settlements, through purchases of land from private owners for the purpose of resettlement, or through practical improvements in living conditions in the settlements. None of those solutions had, however, been employed by the municipalities of Ribnica and Škocjan, where the applicants lived.", "122. The applicants from the Goriča vas settlement did not have access to any regular and reasonably accessible source of clean water, nor did they have any plumbing or sanitation, while the applicants from the Dobruška vas 41 settlement argued that, in view of their difficulties in accessing the only group water-distribution connection (see paragraph 32 above), the municipality should have installed at least three such connections to ensure effective access to safe drinking water. Furthermore, all of the applicants asserted that they had not been provided with a meaningful alternative, such as appropriate resettlement. As to the Government’s submission that the Roma inhabitants of Goriča vas had refused to be resettled to a location in Lepovče, the applicants alleged that the resettlement had been blocked by the majority non-Roma population of Lepovče.", "(ii) The Government", "123. Referring to the relevant case-law of the Court, the Government asserted that the fact of belonging to a minority with a traditional lifestyle different from that of the majority did not exempt the members of such a minority from general laws intended to safeguard the assets of the community as a whole.", "124. The Government submitted that a comprehensive regulatory framework was in place in Slovenia governing spatial development and planning, the utility infrastructure facilities, as well as the construction of buildings. Access to such utilities was provided under equal conditions to all inhabitants, including the Roma, irrespective of their personal or other circumstances. Given that the provision of water and sanitation fell within the scope of public municipal utilities, those services were not provided for profit; the charges only covered the costs of their provision. Moreover, under the applicable legislation, all buildings which required access to drinking water needed to be connected to the public water supply system, unless such a public water network did not exist in the area. Residents who applied to be connected to the public water supply system had to install individual house connections at their own expense.", "125. The Government further asserted that many Slovenian residents living in remote areas had no access to drinking water from the public water supply system and had arranged access by collecting rainwater, setting up water tanks or finding similar solutions. Under Slovenian legislation, if a household did not have the possibility of connecting to the public water supply system, the owner of the building had to install a water tank. The public utility service provider was then obliged to supply the water tank with water. According to the Government, at least 163,000 inhabitants did not have access to the public water supply system and relied on other means of private water supply based on a water permit. Moreover, 15,000 inhabitants obtained drinking water by harvesting rainwater, for which no water permit was necessary.", "126. Similarly, the discharge and treatment of wastewater and run-off rainwater was in principle a municipal utility service; however, in dispersed settlement areas inhabitants had installed individual systems such as small urban wastewater treatment plants or septic tanks. As was the case with water connection, sewerage connection to the public sewerage network had to be installed and paid for by the owners of the buildings, and so did individual treatment plants and septic tanks.", "127. The Government pointed out that illegally constructed buildings were not allowed to be connected to public utility infrastructure facilities such as drinking-water supply and the discharge of wastewater, emphasising in this regard that the applicable laws applied uniformly to everyone and further arguing that any provisions to the contrary would amount to discrimination against the majority vis-à-vis the Roma community. In the Government’s opinion, such a regulation did not entail an interference with the exercise of an individual’s right to respect for private and family life. Assuming, however, that the Court did not accept such a position, the Government further submitted that the interference in the case at hand had been justified under Article 8 § 2 of the Convention.", "128. As regards the status of the applicants’ settlements, the Government claimed that they had not been tolerated, referring to the relevant decisions of the Inspectorate for the Environment and Spatial Planning (see paragraphs 10 and 26 above), whereby inhabitants of both Roma settlements had been ordered to remove illegally constructed buildings and restore the land to its previous state. Although those decisions had been enforceable, they had not subsequently been enforced, since many of the buildings had housed families with children who would have had to be provided with alternative accommodation in the event of demolition. Nevertheless, the Government pointed to the fact that all the applicants had constructed buildings on land that was not owned by them, and therefore must have known that those buildings had been illegally constructed. Given the non-residential purposes of the land in question (see paragraphs 9 and 25 above), their respective buildings could not be legalised.", "129. In this context, the Government further pointed out that the applicants themselves had chosen the locations where they had settled and set up their place of residence, and that they were free to change those locations at any time. The social benefits they received (see paragraphs 22 and 35 ) enabled the applicants to live a decent life, which meant that if they were dissatisfied with their living conditions, they could change them, either by building sanitary facilities or by resettling. In this connection, the Government referred to the plans of the Ribnica Municipality to build a Roma settlement in Lepovče, a possibility allegedly refused by the Roma community. Also, according to the Government, the applicant Branko Hudorovič could have, but had not, applied for public rental housing which was available in the Ribnica Municipality (see paragraph 8 above).", "130. Lastly, the Government submitted that appropriate positive measures had been taken to improve the living conditions of the Slovenian Roma community. Referring to the strategic framework set out in the National Programme of Measures for Roma (see paragraph 50 above) and a number of specific programmes and projects, the Government asserted that they had been focused on preservation of the existing Roma settlements and their legalisation, followed by investment in basic utilities and other infrastructure. Under the 2010-15 National Programme a number of tenders in the amount of several million euros had been awarded for co-financing of basic community infrastructure projects in Roma settlements. Spatial planning projects had been planned and implemented in collaboration with the Roma community. The Government further submitted that another National Programme was to be adopted for the period 2016-21. In terms of concrete measures benefiting the applicants, the Government referred to the plans for relocation of the Roma community from Goriča vas (see paragraph 14 above) and the co-financing of the water tank and the diesel generator (see paragraph 16 above), and to the group water-distribution connection installed in the Dobruška vas 41 settlement (see paragraph 29 above). The Government also submitted that the Škocjan Municipality had been actively examining the possibilities for relocating the family of Ljubo Novak and Dunja Kočevar; however, they had as yet been unsuccessful in their efforts.", "(b) The third-party interveners", "(i) Human Rights Centre of the University of Ghent", "131. This third-party intervener referred to the findings of several international human rights mechanisms, including the Council of Europe Commissioner for Human Rights, according to which forms of unequal treatment in Slovenia included preferential treatment of non-Roma in the development of infrastructure and the systemic failure to develop infrastructure in Roma communities.", "132. As regards the protection afforded by Article 8, in the view of this third-party intervener a crucial question as to the State’s compliance with the provision was whether it had provided for an adequate legal framework; if so, it should further be assessed whether an individual’s living conditions were not linked to any unlawfulness in domestic terms (it referred to, for example, Costache, cited above, § 23). The third-party intervener pointed out that the areas of urban planning and water and sanitation services were inherently within the remit of the State, especially since the operation of water and sanitation services were generally managed by national or local authorities. Therefore, in cases where access to those services was impeded by urban planning issues, redressing the situation necessarily depended on the steps taken by the State.", "133. Moreover, where it had been shown that the State knew or ought to have known of health risks resulting from individuals’ living conditions, it should be verified whether necessary and sufficient operational measures had been taken to protect the individuals concerned against those risks ( Öneryıldız v. Turkey [GC], no. 48939/99, § 93, ECHR 2004-XII). This obligation, while applying primarily to Articles 2 and 3 of the Convention, should in the opinion of this third-party intervener also apply in the context of Article 8. Furthermore, it should also be assessed whether the absence of water and sanitation services could be explained by a discriminatory attitude on the part of the authorities, which should be considered as aggravating circumstances under both Articles 3 and 8 of the Convention.", "134. As regards the Court’s consideration under Article 14 of the Convention, this third-party intervener pointed to the entrenched discrimination and socio-economic disadvantage faced by the Roma community, emphasising that the lack of access to basic utilities perpetuated stigmatisation and discrimination against Roma. It further pointed out that the Roma had been recognised as a vulnerable minority and an underprivileged social group in the Court’s case-law (referring to, for example, Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004; Chapman, cited above, § 96; and Yordanova and Others v. Bulgaria, no. 25446/06, § 129, 24 April 2012). Therefore, in the opinion of this third-party intervener, in applying Article 14 to the present case it should be assessed whether being prevented from accessing water and sanitation, access which was available to the vast majority of the population, on account of living in an informal but tolerated Roma settlement, amounted to de facto discrimination in the enjoyment of the right to respect for private and family life and the home, and the prohibition of degrading and inhuman treatment.", "(ii) European Roma Rights Centre", "135. This third-party intervener provided an overview of its research from 2014 in which it had collected evidence on access to safe and affordable drinking water and sanitation in ninety-three Romany settlements and neighbourhoods in Albania, France, Hungary, the Republic of Moldova, Montenegro, Slovakia and North Macedonia (formerly “the former Yugoslav Republic of Macedonia”). Without claiming to be representative of the situation of the Roma in any given country, the research had been designed to demonstrate that a significant number of Roma communities had suffered problems in relation to access to water, and that those conditions had often amounted to racial discrimination. An earlier research paper, “The Housing Situation of Roma Communities: Regional Roma Survey 2011”, conducted by the United National Development Programme (UNDP), had shown that a high proportion of Romany households in selected European countries had not been connected to a public water supply system: in Romania it had been 72%, in Moldova 66%, in Slovakia 38%, in Croatia 35%, in Hungary 30%, and in Albania 30%.", "136. The research of this third-party intervener had produced similar results; significant numbers of Roma in the examined settlements had had no access to running water in their homes, and many Roma, especially those in segregated settlements, had suffered disproportionately from the failures of the authorities to secure their access to water and sanitation. Their water sources had often been far from home, with the burden to secure water falling disproportionately on women and girls. The water sources had often not been tested to ensure their safety and had been exposed to a wide range of contaminants, including dry toilets (pit latrines), insects, and wild animals. Roma often had not been able to afford public water service pipes and water charges, even if they had been otherwise available. In seventy ‑ five of the sites investigated (81%), the Romany settlements had not been connected to the public water supply systems. Moreover, in sixty-three places (68%), none of the Romany households in the neighbourhood or settlements had been supplied with tap water and a functioning sewerage system. If the houses had been built on land with unclear ownership or the occupants had lacked a construction permit or similar documents, the local authorities had generally refused to connect them to the public water system.", "137. In more than half of the places visited, the nearest water source had been more than 100 m away, and in some places Roma had had to walk several kilometres. Distant water resources had resulted in a high risk to public health from insufficient sanitation. According to the World Health Organization (WHO), when a water source required a walk of between 100 m and 1,000 m from home or five to thirty minutes total collection time, the quantities of water collected were unlikely to exceed 20 litres per person daily and hygiene practice could therefore be compromised, resulting in a high risk to public health from poor hygiene. When the water source was more than 1 km away from the home or required more than thirty minutes collection time, the likely volumes of water collected were very low, typically less than 5 litres per person per day; basic consumption and hygiene practice were compromised to an extent that the risk to public health from poor hygiene was very high.", "138. Many Roma communities had enjoyed access to water only thanks to private donations. In two thirds of the sites surveyed, this third-party intervener had established a prima facie case of race discrimination: there had either been clear evidence that Roma had experienced less favourable conditions for accessing water on account of their ethnicity (direct discrimination), or it had not been possible to objectively justify the less favourable conditions which they had disproportionately experienced (indirect discrimination).", "(c) The Court’s assessment", "(i) Article 8", "(α) General principles", "139. The Court has consistently held that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life and the home (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).", "140. The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160, and Roche v. the United Kingdom [GC], no. 32555/96, § 157, ECHR 2005-X). In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003-VIII; Rees v. the United Kingdom, 17 October 1986, § 37, Series A no. 106; and Leander v. Sweden, 26 March 1987, § 59, Series A no. 116). Furthermore, even in relation to the positive obligations flowing from Article 8 § 1, in striking the required balance, the aims mentioned in Article 8 § 2 may be of relevance (see Rees, cited above, § 37; see also López Ostra, cited above, § 51).", "141. In socio-economic matters such as housing the margin of appreciation available to the State is necessarily a wide one (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and Mellacher and Others v. Austria, 19 December 1989, § 45, Series A no. 169). The Court takes the view that in issues involving an assessment of the priorities in the context of the allocation of limited State resources, the national authorities are in a better position to carry out this assessment than an international court (see O’Reilly and Others v. Ireland (dec.), no. 54725/00, 28 February 2002, and Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003).", "142. In addition, it is necessary to take into account the vulnerable and disadvantaged position of the Roma population which requires some special consideration to be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases (see Connors, cited above, § 84, and Chapman, cited above, § 99). Social groups such as the Roma may need assistance in order to be able effectively to enjoy the same rights as the majority population. As the Court has stated in the context of Article 14 of the Convention, that provision not only does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them but, moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-VI). In the context of Article 8, the applicants’ specificity as a social group and their needs have been considered one of the relevant factors in the assessment of the proportionality that the national authorities are under a duty to undertake (see Yordanova and Others, cited above, § 129).", "(β) Application of those principles to the present case", "143. The Court notes that the applicants did not argue that their living conditions could be deemed to have resulted from any activity of the authorities that restricted their access to safe drinking water or polluted any existing water resources in their respective settlements. They complained of the insufficient provision of basic infrastructure; accordingly, the present case will be considered to concern the State’s positive obligation to take reasonable and appropriate measures to secure respect for their homes and their private and family life. The Court considers that the key consideration in its assessment concerns the scope of the State’s positive obligation to provide access to utilities, especially to a socially disadvantaged group. In this connection, the domestic and international materials referred to by the parties (see paragraphs 50 - 51, 59 - 62 and 66 - 71 above) show that a considerable part of the Roma population in Slovenia, who live in illegally built settlements that are often outside of the densely populated areas with a public water-distribution system, face greater obstacles than the majority in accessing basic utilities. Accordingly, these factors and the possible need for concrete measures tailored to the applicants’ specific situation will form part of the Court’s assessment of the circumstances of the present case.", "144. That said, the Court considers that the level of realisation of access to water and sanitation will largely depend on a complex and country-specific assessment of various needs and priorities for which funds should be provided. In the Court’s view, the States must be accorded wide discretion in their assessment of those priorities and the legislative choices they make, given their wide margin of appreciation in socio-economic matters. That discretion must also apply to the concrete steps aimed at ensuring that everyone has adequate access to water, such as the adoption of a national water strategy, national and local implementation projects of any such strategy, or, indeed, the provision of water from the public water-distribution system to individual households.", "145. The Court notes that in Slovenia spatial development and planning and public utility infrastructure are subject to a comprehensive regulatory framework (see paragraphs 37 - 46 above) which lays down the conditions of legality for a building to benefit from public infrastructure (see paragraph 40 above) and distributes the responsibilities related to the costs of water and sanitation public utilities between the State – or municipalities – and consumers (see paragraphs 44 and 46 above).", "146. The Court considers it reasonable that the State, or its local authorities, assume responsibility for the provision of this service, while it is left to the owners to install individual house connections at their own expense (see paragraph 29 above). Likewise, given the inherently progressive nature of the development of a public water supply system, which is dependent on the financial resources of an individual State, it appears reasonable that alternative solutions such as the installation of individual water tanks or systems for harvesting rainwater are proposed in those areas that are not yet covered by a public water supply system.", "147. In the Court’s opinion, it is possible that such legislation could produce disproportionate effects on the members of the Roma community, in so far as, similarly to the applicants, they live in illegal settlements and rely on social benefits for their subsistence. However, as submitted by both parties, the domestic authorities have recognised the vulnerability of the Roma community and acknowledged the need for positive measures aimed at improving their precarious living conditions. To that end they have adopted and financially supported a comprehensive strategy and specific programmes and projects focused on the legalisation of the illegally constructed Roma settlements and on the provision of basic public utilities to their inhabitants (see paragraphs 50 and 130 above). It furthermore appears, according to the undisputed submissions of the applicants, that many Roma settlements have been regularised and have benefited from practical improvements in their living conditions (see paragraphs 120-121 above). The Court takes note of all the affirmative-action measures already taken by the domestic authorities with a view to improving the living conditions of the Roma community in Slovenia.", "148. As regards the applicants’ personal situations, it is not clear from the parties’ submissions whether the applicants had a realistic possibility of relocating to settlements with better infrastructure (see paragraph 14 above) or obtaining alternative accommodation, such as public housing units at a subsidised rent rate available in the Ribnica Municipality. While the Government mentioned this possibility in their submissions, official documents submitted by the parties show that, for such accommodation to be effectively made available, a municipality was required to issue a notice inviting applications for such housing units (see paragraph 51 above). In the present case, no information was submitted on whether such a notice had been issued. Nevertheless, irrespective of whether public housing was available, the Court can only conclude that the applicants remained in their respective settlements by choice.", "149. Secondly, it is not disputed between the parties that at the material time, the applicants were receiving social benefits (see paragraphs 22 and 35 above). It would appear, based on the fact that the applicants from the Goriča vas settlement co-financed the purchase of the water tank and agreed to bear the costs of water deliveries and chemical toilets (see paragraph 16 above), and the applicants from the Dobruška vas 41 settlement bought land near the settlement and built a wooden hut, where they moved in the course of these proceedings (see paragraph 28 above), that the applicants were not living in a state of extreme poverty (contrast M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 254, ECHR 2011). Therefore, in so far as the applicants relied on State support for their subsistence, the Court considers that the national authorities recognised their situation and, through their system of social benefits, ensured that they were guaranteed a certain basic level of subsistence which was, or could have been, used, inter alia, for improving their living conditions.", "150. Furthermore, the Court observes that the municipal authorities of Ribnica and Škocjan also undertook some concrete actions to ensure that the applicants had access to safe drinking water. In this connection, the Government argued that the applicants’ respective buildings could not be legalised because they were erected on land not intended for residential use (see paragraph 128 above). In the absence of legalisation, the buildings could not be connected to water and sanitation services. Instead, the Court notes that a water tank, co-financed by the Ribnica Municipality, was purchased in 1999 for the Goriča vas settlement, and water was delivered there by the local fire brigade upon request, while the costs of the water itself were borne by the Municipality (see paragraph 19 above). Although it is not clear whether there were any such periods when no tank was available in the settlement, the applicants asserted that several water tanks had eventually become unsuitable for use (see paragraph 18 above). On this basis, as well as on the basis of the information provided by the Government concerning water deliveries for the period of 2010-16 (see paragraph 19 above), the Court accepts that one or several water tanks were installed in the settlement in the period from 1999 to 2016 into which supplies of drinking water were placed.", "151. The Court notes that there is a dispute between the parties as to the reasons why water was not delivered more often to the Goriča vas settlement. While the applicants assert that the water tank became unusable because of mould and other fungi, the Government claim that the tank was subsequently sold by the members of the Roma community (see paragraph 18 above). Be that as it may, it is worth noting that no financial or other assistance, such as the purchase of another water tank, appears to have been requested by the applicants from the municipal authorities since 1999 for the purpose of acquiring a more regular water supply. Furthermore, the applicants did not assert that their own investment in the solution provided by the Municipality constituted a disproportionate financial burden that they could not afford. Nor did the applicants allege that the water delivered to the Goriča vas settlement by the local fire brigade (see paragraphs 18-20 above) was not safe for drinking, or complain of any specific dangers to health or diseases in this respect. In the light of this, the Court concludes that the above arrangement provided the applicants from the Goriča vas settlement with the possibility of accessing safe drinking water.", "152. The Court considers that a similar conclusion can be reached with regard to the applicants from the Dobruška vas 41 settlement, where the Škocjan Municipality installed and financed a group water-distribution connection from which individual connections could be installed for supplying water to individual households. Nine individual connections were installed from the distribution connection to the individual users’ homes in the settlement, supplying water to seven of them (see paragraph 30 above). The applicants did not join the water supply system in their previous home, allegedly owing to obstruction by hostile neighbours. However, it must be noted that they did not even apply to have water installed in that location (see paragraph 32 above). Nor is it clear from the applicants’ submissions whether they took any steps towards obtaining an individual water connection after moving to a new location (ibid.). In this connection, given that the applicants not only chose their new location, but also bought the land on which they built their home, even if only to avoid further disputes with their neighbours, in the Court’s opinion they were themselves responsible for verifying whether they would be able to connect to the public water supply system and for taking steps to ensure their individual connection.", "153. Setting up a common water tank for an entire settlement or a public water point available to everyone in the settlement may be considered an interim rather than a permanent solution (see paragraph 62 above). However, in the Court’s opinion these positive measures did provide the applicants with the opportunity to access safe drinking water. Moreover, in the absence of any evidence to suggest the contrary, the Court considers that the domestic authorities took those measures in good faith. The Court also notes in this connection that the applicants failed to show any shortcomings in the measures already taken by the authorities regarding their quality of life in relation to other, more permanent, solutions.", "154. The Court further notes that the applicants failed to explicitly address the issue of what measures should have been adopted by the State to constitute compliance with its obligation to provide access to basic public utilities. The applicants from the Goriča vas settlements made no submissions in that regard, while the applicants from the Dobruška vas 41 settlement argued that at least three water-distribution connections should be installed in the settlement to ensure effective access to safe drinking water (see paragraph 122 above), without, however, explaining whether they had taken any actions to acquire a connection to the existing group water-distribution connection, either at their previous location or after moving to the new location, or how additional water-distribution connections would impact their personal situation.", "155. Nor did the applicants provide any information which would allow the Court to assess whether the municipal authorities of Ribnica and Škocjan, respectively, deprioritised their interest in the regulation of their settlements and access to safe drinking water in favour of other, less urgent measures and projects aimed at improving the infrastructure of the majority population. In the absence of such submissions, the Court can only refer to the information supplied by the parties, according to which more than 10% of the population residing in the Ribnica municipality do not have access to drinking water from the public water-distribution system (see paragraph 7 above), and some residents of the Škocjan Municipality do not have such access, but instead supply themselves with water from the village fountain (see paragraph 33 above). In this connection, the Court further notes that undisputed information provided by the Government shows that a non-negligible proportion of the Slovenian population living in remote areas do not have access to the public water supply system and have to rely on alternative means of private water supply, such as water tanks (see paragraph 125 above).", "156. In the present case, the respective municipal authorities undertook measures that, as already found, provided the applicants with the opportunity to access drinking water, notwithstanding the irregular status of their settlements and the nature of the land the applicants’ respective buildings had been built on (see paragraph 128 above). In the Court’s opinion, the positive steps taken by the respective municipalities allow for the conclusion that they acknowledged the disadvantages suffered by the applicants as members of a vulnerable community and showed a degree of active engagement with their specific needs. It is true that those steps did not entail the provision of household connections that are generally considered the ideal solution (see paragraph 62 above), or, in the case of the water tank installed in the Goriča vas settlement, even a possibility of such provision. However, the applicants were not prevented from making use of their social benefits, allowing them to provide for their essential needs (see paragraph 149 above) and to employ alternative solutions such as installing private water tanks or systems for collecting rainwater. As regards the State’s own legal and financial obligations in this regard, the Court takes the view that, while it falls upon the State to address the inequalities in the provision of access to safe drinking water which disadvantage Roma settlements, this cannot be interpreted as including an obligation to bear the entire burden of providing running water to the applicants’ homes.", "157. Lastly, the measures taken by the municipalities did not include any steps to ensure sanitation for the applicants; however, the Court notes that a considerable part of the population in Slovenia do not as yet have the benefit of a public sewerage system; in fact, it would appear that both the municipalities in question are significantly better equipped with a public water supply than with sanitation (see paragraphs 7, 33- 34 and 58 above). According to the undisputed submissions of the Government, in the Ribnica Municipality only the town of Ribnica and the Hrastje area were connected to such a system at the material time, while the Škocjan Municipality had no public discharge or facility for treatment of urban wastewater. Considering the limited access to sanitation in the two municipalities, it would be difficult, in the absence of proof to the contrary, to conclude that the applicants’ respective situations were accorded less importance than those of the majority population. Furthermore, taking account of the inherently progressive nature of the development of public infrastructure and the State’s wide discretion in the prioritisation of resources for urban planning (see paragraph 144 above), in the Court’s opinion only particularly convincing reasons such as a serious risk to health could justify imposing a burden on the State to take any steps with regard to the applicants’ respective situations. However, while the applicants complained of frequent diseases (see paragraph 109 above), they neither made any concrete submissions to that effect nor presented evidence in support of their claims (see, mutatis mutandis, Denisov, cited above, § 114). In that connection, it is worth noting that the applicants did not argue that they were in any way, financially or otherwise, prevented from installing their own septic tanks or employing other alternative solutions to the public sewerage system.", "158. Reiterating, firstly, that the applicants received social benefits which could have been used towards improving their living conditions, secondly, that the States are accorded a wide margin of appreciation in housing matters, and thirdly, that the applicants have not convincingly demonstrated that the State’s alleged failure to provide them with access to safe drinking water resulted in adverse consequences for health and human dignity, effectively eroding their core rights under Article 8 (see paragraphs115-16 above), the Court finds that the measures adopted by the State in order to ensure access to safe drinking water and sanitation for the applicants took account of the applicants’ vulnerable position and satisfied the requirements of Article 8 of the Convention.", "159. The Court accordingly concludes that, even assuming that Article 8 is applicable in the instant case, there has been no violation of that provision. In these circumstances the Court finds it unnecessary to decide on the issue of the applicability of Article 8 (see paragraph 117 above).", "(ii) Article 14 in conjunction with Article 8", "160. The applicants essentially complained that the State had failed to sufficiently consider their specific needs as members of a disadvantaged Roma community in the provision of basic utilities, notably water and sanitation. According to the applicants, in the two municipalities in question, discriminatory attitudes, prejudice and stereotypes had played a major role in the local authorities’ inactive approach to resolving the applicants’ lack of basic infrastructure. The parties’ submissions are summarised in paragraphs 119 to 130 above.", "161. The Court notes that it has dealt with the applicants’ core grievance in the context of its assessment of the scope of the State’s positive obligation to provide access to basic utilities to a socially disadvantaged group and concluded that the respondent State in the present case has not violated Article 8 of the Convention (see paragraphs 143-159 above).", "162. In the light of this, the Court finds it unnecessary to decide on the issue of the applicability of Article 14 of the Convention, as it considers that, for the reasons stated above and assuming that Article 14 applies, there has been no violation of Article 14 of the Convention in conjunction with Article 8.", "B. As regards the alleged violation of Article 3 of the Convention, taken alone and in conjunction with Article 14", "163. The applicants complained that the discomfort and pain resulting from their lack of basic amenities amounted to degrading and inhuman conditions contrary to Article 3 of the Convention. The Government argued that there had been no action or practice on the part of the State which would fall within the scope of Article 3 of the Convention and would be prohibited under that Article. The parties’ submissions are substantially the same as the ones made under Article 8 of the Convention and are summarised in paragraphs 119 to 130 above.", "164. The Court notes at the outset that this complaint is linked to the one examined above and must therefore likewise be declared admissible (see paragraph 118 above).", "165. In this connection and with respect to the issue of the applicability of Article 3 of the Convention, the Court cannot exclude the possibility that State responsibility could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, finds himself or herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity (see O’Rourke, cited above, and Budina v. Russia (dec.), no. 45603/05, 18 June 2009).", "166. However, in the present case the Court has established that the positive measures undertaken by the domestic authorities provided the applicants with the opportunity to access safe drinking water, irrespective of how and whether it was realised (see paragraph 151 above).", "167. For this reason, even assuming that the alleged suffering reached the minimum threshold and that Article 3 is applicable in the present case, there has been no violation of this provision, taken alone or in conjunction with Article 14.", "IV. CONCLUSION", "168. In view of the above conclusions, it is not necessary for the Court to examine the Government’s objections of abuse of the right of application and lack of victim status in respect of all of the applicants." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1978 and lives in Budapest.", "7. On 8 May 2007 the Hungarian Guard Association ( Magyar Gárda Egyesület – “the Association”) was founded by ten members of the political party Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom ) with the stated aim of, inter alia, preserving Hungarian traditions and culture.", "8. In its turn, on 18 July 2007 the Association founded the Hungarian Guard Movement ( Magyar Gárda Mozgalom – “the Movement”). The Bureau of the Association stated that it had decided to “ create the Hungarian Guard, first operating it as a movement but later attempting to integrate it into the Association as a section ”. It was also decided that “in order to integrate the Hungarian Guard into the Association, [the latter ’ s current ] charter need [ ed ] to be amended ... by 10 October 2007”.", "The Movement ’ s objective was defined as “defending a physically, spiritually and intellectually defenceless Hungary ”. The tasks undertaken by the Movement, as listed in its deed of foundation, included the physical and psychological training of its members, participation in disaster management and in ensuring public safety, as well as the initiation of a social dialogue regarding these issues through public events.", "9. On 4 October 2007 the Budapest public prosecutor ’ s office addressed a notice to the Association calling on it to terminate its unlawful activities. It was noted that the Association had carried out activities that were not in accordance with its aims as defined in its charter. In particular, it was observed that on 25 August 2007 it had organised the swearing-in of fifty - six “guardsmen” in Buda Castle. Subsequently, the Association had conducted a national campaign aimed at popularising tasks defined for the Movement which were not in accordance with the aims of the Association. It was noted that certain aims of the Movement were not amongst those defined for the Association, nor were they in conformity with the Association ’ s cultural and tradition-preserving nature.", "On 9 November 2007 the applicant, as chairman of the Association, notified the public prosecutor ’ s office that the unlawful activities had been terminated by deleting the impugned part from the Movement ’ s deed of foundation, and that he had initiated the amendment of the Association ’ s charter. Accordingly, on 7 December 2007 the General Assembly of the Association had decided to add the following provision to paragraph 2 of its charter: “(f) In accordance with its name, the Hungarian Guard Association has the aim of engaging in dialogue with society and of holding public events and gatherings for citizens on issues affecting their security, such as disaster management, national defence and life-saving techniques. ”", "10. Purportedly in pursuit of these goals, members of the Movement dressed in uniform subsequently held rallies and demonstrations throughout Hungary, including in villages with large Roma populations, and called for the defence of “ethnic Hungarians” against so-called “Gypsy criminality”. These demonstrations and rallies were not prohibited by the authorities.", "One of these demonstrations, involving some 200 activists, was organised in Tatárszentgyörgy, a village of around 1,800 inhabitants, on 9 December 2007. The police were present and did not allow the march to pass through a street inhabited by Roma families.", "11. In reaction to this event, on 17 December 2007 the Budapest Chief Prosecutor ’ s Office lodged a court action seeking the dissolution of the Association. The action was based on the Association ’ s alleged abuse of the right to freedom of assembly and the fact that it had conducted activities which infringed the rights of the Roma by generating fear among them through speeches and appearance, that is to say, by the activists wearing uniforms, marching in formation and issuing military-style commands.", "The Chief Prosecutor ’ s Office was of the view that the Movement constituted a division of the Association, and that its activity in fact represented a significant part of the latter ’ s activities. It argued that the Movement was not a “ spontaneous community ”, in that its members were all registered, and stressed that it had been created by the presidency of the Association, that applications for membership were assessed by the Association and that its uniform could be bought from the Association.", "12. In the ensuing proceedings the Association claimed, however, that there were no organisational ties between itself and the Movement of a kind amounting to a unity of the two; accordingly, it argued that it bore no responsibility for the Movement. It also stated that, in any event, the Movement ’ s activities did not present any objective danger to anyone. According to the Association, a subjective feeling of fear could not give rise to any limitation on fundamental rights, including freedom of assembly; the Movement ’ s conduct had not been intimidating if regarded objectively.", "13. After holding four hearings the Budapest Regional Court ruled in favour of the Chief Prosecutor ’ s Office on 16 December 2008 and disbanded the Association under section 16(2 ) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 below).", "The court did not accept the arguments concerning the distinction between the two entities and held that a “symbiotic relationship” existed between them. It held that the principal activity of the Association had been the founding, operation, guidance and financing of the Movement, observing, inter alia, that the Movement received donations through the Association ’ s bank account. The legal effect of the judgment was nevertheless limited to the dissolution of the Association; since, in the court ’ s view, the Movement did not have any legal personality, the judgment did not directly extend to it.", "As regards the assembly in Tatárszentgyörgy, the Regional Court held as follows:", "“The essential purpose of the event was indeed to place the spotlight on ‘ Gypsy criminality ’. The use of this generalisation, clearly based on racial and ethnic grounds, violated the principle of equal human dignity ... Moreover, this was not a one-off occasion ... [The Movement] based its programme on discrimination between people and expressed it by way of marches in several cases; this amounted to a demonstration of power and to threatening others through the appearance [of the participants in the marches]. ... The court is of the opinion that, from a constitutional point of view, to raise fear, virtually as a mission, is unacceptable as an aim or role.”", "14. The court noted that the participants, who were uniformed, had worn armbands quite similar to those of officers of the Arrow Cross (responsible for the reign of terror in Hungary in 1944/45). It took the view that marches with participants dressed in this way were objectively capable of wounding “historical sensitivities”.", "The court went on to declare that, despite the Association ’ s stated purpose, its actions had violated Hungary ’ s laws on associations and created an atmosphere of anti-Roma sentiment. According to the court, the verbal and visual demonstration of power alone amounted to an infringement of the law, in the light of historical experience; thus, for the Association to be dissolved it was not necessary for it to have committed an actual offence : the fact that its programme encompassed discrimination amounted to prejudicing the rights of others within the meaning of section 2(2) of Act no. II of 1989 (see paragraph 18 below).", "15. On 2 July 2009 the Budapest Court of Appeal upheld the judgment of the Regional Court. It also considered two further similar demonstrations staged by the Movement, in the village of Fadd on 21 June 2008 and in the village of Sárbogárd on an unspecified date. The Court of Appeal noted that the speeches given by Movement members in the course of the Fadd rally had contained numerous remarks aimed at the exclusion of Roma. As to the Sárbogárd event, the Court of Appeal observed that there had been several anti-Semitic utterances.", "This court established a closer connection between the two entities, extending the scope of its judgment also to the Movement. It held that the Association in fact included the Movement as a “unit”; consequently, the judgment concerned both of them. The Association ’ s dissolution also dismantled the organisational framework of individuals operating within any movements related to the dissolved association.", "The court ruled that the choice of locations for the demonstrations, that is, villages with large Roma populations, could not be seen as social dialogue, but as an extreme form of expression in the context of a quasi ‑ military demonstration of force consisting of the cumulative effects of military- style uniforms, formations, commands and salutes. The Court of Appeal, while it upheld in essence the arguments of the Regional Court, argued that the population of the villages had been subjected as a “ captive audience ” to these extreme and exclusionist views without being able to avoid receiving them. In the court ’ s view, the events organised by the Movement constituted a risk of violence, generated conflict, breached public order and peace and violated the right to liberty and security of the inhabitants of the villages, despite the fact that all the demonstrations, which were tightly controlled by the police, had finished without any acts of actual violence.", "The court also considered the applicant ’ s freedom of expression. It stated, upholding the arguments of the first-instance judgment and citing the case-law of the Court, that this freedom did not cover hate speech or incitement to violence.", "16. On 15 December 2009 the Supreme Court upheld the judgment of the Budapest Court of Appeal. It endorsed the Court of Appeal ’ s finding that the Movement was in fact an entity within the Association. It also agreed with the lower courts as to the necessity of disbanding the Association, pointing out that the Movement ’ s rallies had caused situations of conflict whose protagonists might potentially have had recourse to violence.", "This decision was served on 28 January 2010.", "IV. 1. The potential harms resulting from incitement to hate, and from humiliating expressions of contempt for certain groups in a population are amply documented in the annals of human experience.", "...", "The tragic historical experiences of our century prove that views preaching racial, ethnic, national or religious inferiority or superiority and the dissemination of ideas of hatred, contempt and exclusion endanger the values of human civilization.", "It is proved both by history and by the events of our times that any utterance expressing an intention to arouse hatred against a specific group of people can push social tension to extremes, disturb social harmony and peace and in an extreme case can result in violent clashes between certain groups of society.", "In addition to the historical and contemporary experiences proving the extremely damaging effects of arousing hatred, it is necessary to consider the everyday threats that result from the unlimited expression of ideas and concepts liable to arouse hatred. Such expression prevents human communities from living in harmony with other groups. By intensifying emotional and social tensions within a smaller or bigger community, this can destroy ties within the society, reinforce extreme positions and increase prejudice and intolerance. All this results in a diminution of the chances of creating a tolerant and multicultural society which acknowledges pluralism, the right to be different and the equal dignity of all people, and in which discrimination is not regarded as a value.", "2. To afford constitutional protection to the incitement of hatred against certain groups under the guise of freedom of expression and of the press would present an irresolvable contradiction with the value system and political orientation expressed in the Constitution, that is, with the democratic rule of law, the equality of human beings, equal dignity, the prohibition of discrimination, freedom of religion and conscience and the protection of national and ethnic minorities, as recognised by the various Articles of the Constitution.", "...", "Incitement to hatred is a negation of the above-mentioned notions, an emotional preparation for the use of violence. It is an abuse of freedom of expression, being an intolerant classification of a group characteristic of dictatorships rather than democracies. To tolerate the exercise of freedom of expression and of the press in a manner prohibited by Article 269 § 1 of the Criminal Code would contradict the requirements flowing from the democratic rule of law.", "...", "As a summary of its position, the Constitutional Court points out that the restriction of freedom of expression and of the press is necessitated and justified by the negative historical experiences surrounding the arousal of hatred against certain groups of people, by the protection of constitutional values and by the obligation of the Republic of Hungary to comply with its commitments under international law.", "...”", "23. Decision no. 14/2000 (V.12) AB of the Constitutional Court contains the following passages:", "“3. The freedom to express one ’ s opinion is not only a subjective right but also a guarantee of the free expression of various views shaping public opinion. ...", "Although this right can be restricted, it enjoys special protection due to its primary role, and thus may be restricted only in relation to a few other rights. Therefore, secondary theoretical values such as public peace enjoy less protection than the right concerned. ...", "Like the right to life, the right to human dignity is eminently protected in the Constitution ... The Constitution is not value-neutral but has its own set of values. Expressing opinions inconsistent with constitutional values is not protected by Article 61 of the Constitution. ...", "The Constitutional Court points out that, also under the Convention, freedom of expression carries with it ‘ duties and responsibilities ’. All State authorities are obliged to protect the values of a democratic State under the rule of law and to respect the dignity of persons. Action must be taken against conduct representing force, hatred and conflict. Rejecting the use or threat of force as a means of solving conflicts is part of the complex concept of democracy.”", "24. Decision no. 18/2004 (V.25) AB of the Constitutional Court contains the following passage:", "“III. 2.1. ... Even in the case of extreme opinions, it is not the content of the opinion but the direct and foreseeable consequences of its communication that justify a restriction on free expression and the application of legal measures under civil or, in some cases, criminal law.”", "25. Decision no. 95/2008 (VII.3) AB of the Constitutional Court contains the following passages:", "“III. 3.4. ... The aim of the amendment [to the Criminal Code] is to punish hate speech and gestures even if the injured party cannot be identified. As a result, however, the amendment would punish not only conduct violating the honour and dignity of particular persons but all forms of hate speech, including racist statements containing generalisations, meaning that the ‘ affected ’ parties or the parties that consider themselves to be ‘ affected ’ are not forced to take part in or follow the exchange of communication between persons expressing hatred or to face hate thoughts in certain media outlets. ... Extremist voices are not suppressed in constitutional democracies simply on account of their content. In a democratic society such generalising, racist speech cannot change the fact that, from the State ’ s perspective, each citizen is equally valuable and has the same basic rights.", "In its present form, the amendment would also punish speeches containing only such generalisations. Participation in the communication by persons belonging to the group being attacked, that is, their listening to or being exposed in any way to the racist statements, is not a statutory element of the offence as defined in the amendment.", "However, these are precisely the cases in which the expression of an opinion may offend not only the sensitivity or sense of dignity of certain persons but also their constitutional rights. For example, if a perpetrator expresses his extremist political convictions in such a manner that a person belonging to the injured group is forced to listen to the communication in a state of intimidation, and is not in a position to avoid it [ ‘ captive audience ’ ] ... In this case, the right of the person concerned not to listen to or become aware of the distasteful or injurious opinion deserves protection. ...", "Persons belong not only to the community of citizens but also to a narrower group or community. An individual can, also by virtue of belonging to such a group, be exposed to an injury of such gravity and intensity that recourse to criminal - law sanctions may even be warranted to redress the issue.”", "III. OBSERVATIONS of international Human rights monitoring bodies", "26. The Concluding Observations of the United Nations Human Rights Committee in respect of Hungary (adopted in Geneva, 11-29 October 2010) contain the following passage:", "“18. The Committee is concerned at the virulent and widespread anti-Roma statements by ... members of the disbanded Magyar Gárda. ... Furthermore, it is concerned at indications of rising anti-Semitism in the State party. The Committee is concerned at the Constitutional Court ’ s restrictive interpretation of article 269 of the Penal Code on incitement to violence, which may be incompatible with the State party ’ s obligations under article 20 ... ”", "27. The Fourth Report of the European Commission against Racism and Intolerance on Hungary, adopted on 20 June 2008, contains the following passages:", "“61. ... [ T ] here has been a disturbing increase in racism and intolerance in public discourse in Hungary. In particular, the creation and rise of the radical right-wing Hungarian Guard ( Magyar Gárda ) ... is consistently cited as a cause for deep concern. Since its creation in August 2007 and the public swearing in of several hundred new members in October 2007, the Hungarian Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations; despite apparently innocuous articles of association, amongst the group ’ s chief messages is the defence of ethnic Hungarians against so-called ‘ Gipsy crime [1] ‘. Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with insignia and flags closely resembling the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II, and during whose spell in power tens of thousands of Jews and Roma were killed or deported.", "...", "73. ... Groups such as the Hungarian Guard also openly express antisemitic views, ... the expression of antisemitic views is currently on the rise in Hungary.”", "28. The Third Opinion on Hungary of the Advisory Committee of the Framework Convention for the Protection of National Minorities, adopted on 18 March 2010, contains the following passage:", "“75. Since its creation in 2007, the Hungarian Guard (Magyar Gárda ), has organised numerous public rallies throughout the country, including in villages with large Roma populations, during which members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with Nazi insignia and flags. ... the Advisory Committee is concerned by this threatening behaviour. ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "17. The Constitution, as in force at the material time, contained the following provisions:", "Article 2", "“3. The activities of social organisations, government bodies or individual citizens may not be directed at the forcible acquisition or exercise of public power, or at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as are permitted by law.”", "Article 63", "“1. In the Republic of Hungary every person has the right, on the basis of the right of association, to establish organisations whose goals are not prohibited by law and to join such organisations.", "2. The establishment of armed organisations with political objectives shall not be permitted on the basis of the right of association.", "3. A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the right of assembly and the financial management and operation of political parties.”", "18. Act no. II of 1989 on the right to freedom of association provides as follows:", "Section 2", "“(1) By virtue of the right of association private individuals, legal persons and their entities which have no legal personality may, subject to the aims of their activities and the intention of their founders, form and operate civil society organisations.", "(2) The exercise of the right of association may not violate Article 2 § 3 of the Constitution, nor may it constitute a criminal offence or incitement to a criminal offence, and may not prejudice the rights and liberties of others.”", "Section 3", "“(1) A civil society organisation is a voluntarily established self-governing organisation formed for a purpose stated in its articles of association, which has registered members and organises its members ’ activities in order to further its purpose.", "(2) Unregistered members may also participate in large-scale public events .”", "Section 4", "“(1) ... A civil society organisation comes into existence by means of registration with the courts .”", "Section 5", "“A community of private individuals formed by virtue of the right of association, whose operation is not regular or which has no registered members or structure specified under this Act, shall not constitute a civil society organisation .”", "Section 16", "“(2) Upon an action brought by the public prosecutor, the court:", "...", "( d) shall dissolve the civil society organisation if its operation violates section 2(2) hereof;", "...”", "The legal status of associations can be briefly characterised as follows. Associations whose activities do not serve a public interest cannot be supported by individuals by means of income-tax -deductible donations and are not entitled to receive other donations or to apply for public subsidies, as these privileges are reserved for public-benefit organisations under the provisions of Acts nos. CXXVI of 1996 and CLXXV of 2011. However, Act no. LXXXI of 1996 provides that income deriving from the non-profit activities of any association is exempt from corporate tax and that the associations ’ business activities are subject to preferential corporate taxation. In addition, under Act no. CXVII of 1995, advantageous income ‑ tax rules apply to certain services provided by associations and certain remunerations and social welfare benefits received from them. Furthermore, Act no. IV of 1959 ( on the Civil Code) provides that the members of an association are not liable for the association ’ s debts.", "19. Act no. LXXVII of 1993 on the rights of national and ethnic minorities, as in force at the material time, provided as follows:", "Section 4", "“(1) The Republic of Hungary prohibits all policies or conducts which:", "( a) are aimed at or result in a minority ’ s assimilation into, or exclusion or segregation from, the majority nation;", "( b) aim to change the national or ethnic composition of areas populated by minorities ...;", "( c) persecute, impair the lives of or hamper the exercise of the rights of a minority or persons belonging to a minority on account of their belonging to a minority;", "...”", "20. Law-Decree no. 8 of 1976, promulgating the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations at its 21st session on 16 December 1966, provides as follows:", "Article 20", "“2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”", "21. Law-Decree no. 8 of 1969, promulgating the International Convention on the Elimination of All Forms of Racial Discrimination adopted in New York on 21 December 1965, provides as follows:", "Article 1", "“1. In this Convention, the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.", "... ”", "Article 2", "“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ...", "(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;", "...”", "Article 4", "“States Parties condemn all propaganda and all organizations which ... attempt to justify or promote racial hatred and discrimination in any form, and undertake to ...", "( a) ... declare an offence punishable by law all ... incitement to racial discrimination ... and also the provision of any assistance to racist activities, including the financing thereof;", "( b) ... declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;", "...”", "22. Decision no. 30/1992 (V.26) AB of the Constitutional Court contains the following passages:", "“II. 3. The criminal codes of all democratic European countries with continental legal systems, as well as those of England and Wales, Canada and New Zealand. which have the Anglo-Saxon legal system, prohibit incitement on a ‘ racial ’ basis. The demarcation of the boundary between incitement, arousal of hatred and expression of opinion remains hotly contested even internationally.", "...", "IV. COMPARATIVE LAW", "29. The German Federal Constitutional Court held, in its Stoppt den Synagogenbau! judgment of 23 June 2004 ( BVerfGE, 111, 147 – Inhaltsbezogenes Versammlungsverbot ), that to avert danger to public order it was possible to restrict freedom of assembly if it was the Art und Weise, that is, the manner or means by which an assembly was conducted, and not the content, which gave rise to concerns. Accordingly, it was permissible to restrict “aggressive and provocative conduct by participants which intimidates citizens and through which demonstrators create a climate of violent demonstration and potential readiness for violence”. With regard to an extreme right-wing march staged on Holocaust Memorial Day, it held in addition that “the manner or means [ by which an assembly is conducted] [may] give rise to provocation which significantly encroaches upon moral sensitivities [ sittliches Empfinden ] ”. Regarding the way in which the assembly was conducted, the Federal Constitutional Court also attached importance to the provocative behaviour of the protestors. It added that the same applied “when a procession, on account of its overall character [ durch sein Gesamtgepräge ] identifies with the rites and symbols of the Nazi tyranny and intimidates other citizens by evoking the horrors of the past totalitarian and inhumane regime”.", "30. In the context of the dissolution of an association the German Federal Administrative Court, in judgment BVerwG 6 A 3.08 of 5 August 2009, summarised its case-law on the banning of associations as follows:", "“ 16. Whether or not the purpose and activity of an association are punishable under criminal law will depend on the intentions and conduct of its members. An association as such cannot be criminally liable. Only natural persons are punishable under criminal law because criminality implies a capacity for criminal responsibility [ Schuldzurechnungsfähigkeit ], which only natural persons possess. As is clear from section 3(5) of the Association Act [ VereinsG ], it is nevertheless legally possible for an association to be criminally liable [ Strafgesetzwidrigkeit einer Vereinigung ] because the association can form, through its members and through its representing organs, a collective will which is detached from the individual members and which develops its own purpose [ Zweckrichtung ] and can act independently. If the criminal law is breached as a result of this own purpose or of the independent actions of an association, all the conditions for applying the prohibition [ Verbotstatbestand ] are fulfilled. A decisive factor in this context is that the members ’ conduct can be attributed to the association. The character of the association must be shaped [ prägen ] by the criminal offences [ Strafgesetzwidrigkeit ] committed by its members. An association can strive concurrently for different aims; besides the legal aim laid down in its rules, it can also pursue criminal aims which it achieves through the conduct of its members. ...", "17. The prohibition of an association based on section 3(1), first sentence, first alternative, of the Associations Act read in conjunction with the first alternative of Article 9 § 2 of the Basic Law, is de iure independent of the criminal conviction of a member or an official of the association. It is within the competency of the authority issuing the prohibition order and the administrative court to examine whether there has been a breach of criminal law [ Gesetzeswidrigkeit ]. However, it is not the purpose of the prohibition [ Verbotstatbestand ] to impose an additional sanction on individuals who have already violated criminal provisions. Rather, the purpose [of the provision] is to deal with a particular threat to public safety and public order expressed in the founding or continuing existence of an organisation which is planning or committing criminal acts. Such organisations constitute a particular threat to interests [ Rechtsgüter ] protected by the criminal law. The organisation ’ s inherent momentum and its organised human and material resources facilitate and promote punishable acts. At the same time, the sense of responsibility of each member is often reduced, individual resistance to committing a criminal act is lessened, and the impetus to commit further criminal acts is created ( judgment of 18 October 1988, op. cit., p. 307 and pp. 23-24 respectively; Löwer, in: v. Münch / Kunig, GG, Vol. 1, 5th ed. 2000, note 39 ad Article 9). ”", "The German Federal Administrative Court has repeatedly upheld dissolution orders in respect of associations which supported (neo-)Nazi ideas. In its Heimattreue Deutsche Jugend judgment of 1 September 2010 ( BVerwG 6 A 4.09), in which members of the association were propagating Nazi racial treatises and ideas, the Federal Administrative Court reiterated its relevant case-law, stating that in order to satisfy the conditions of the ban the association must have intended to realise its anti-constitutional aims in a militant or aggressive way, a condition which did not require the use of force or a specific violation of the law. It was sufficient, for the finding of an unconstitutional aim that justified the ban, for the programme, imagery and style to indicate an essential relationship with Nazism. The fact that an association aligned itself with the Nazi party (prohibited in Germany) or propagated a racial theory which was not in conformity with the constitutional prohibition of discrimination was sufficient to meet the conditions for banning the association. If an association attempted to hide its unconstitutional intentions, the conditions for the ban would become clear simply from the general picture formed by the individual statements and conduct. The fact that these elements might appear to be subordinate to a varying number of innocuous circumstances said nothing in itself about their significance.", "31. The Supreme Court of the United States considered the problem of intimidation in Virginia v. Black, 538 US 343 (2003). A Virginia statute makes it a felony “for any person ..., with the intent of intimidating any person or group ..., to burn a cross on the property of another, a highway or other public place,” and specifies that “[a] ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group.”", "The Supreme Court held that burning a cross in the United States was inextricably intertwined with the history of the Ku Klux Klan. The Klan had often used cross burnings as a tool of intimidation and a threat of impending violence. To this day, regardless of whether the message was a political one or was also meant to intimidate, the burning of a cross was a “symbol of hate.” While cross burning did not inevitably convey a message of intimidation, often the cross burner intended that the recipients of the message should fear for their lives. The First Amendment of the Constitution of the United States permitted a State to ban “true threats ”, which encompassed those statements where the speaker meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protected individuals from the fear of violence and the disruption that fear engendered, as well as from the possibility that the threatened violence would occur. Intimidation in the constitutionally proscribable sense of the word was a type of true threat, where a speaker directed a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The First Amendment permitted Virginia to outlaw cross burnings done with the intent to intimidate, because burning a cross was a particularly virulent form of intimidation.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "32. The applicant complained that the dissolution of the Association which he chaired amounted to a violation of his right to freedom of association as guaranteed by Article 11 of the Convention, which reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "The Government contested that argument.", "A. Admissibility", "33. In the Government ’ s view, the application should be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention in the light of Article 17, because the Association provided an institutional framework for expressing racial hatred against Jewish and Roma citizens. They drew attention to the fact that international human rights monitoring bodies (such as the Advisory Committee of the Framework Convention for the Protection of National Minorities and the European Commission against Racism and Intolerance (ECRI), see paragraphs 2 6 - 28 above) had also raised concerns about the threatening effect of the uniform, insignia and flags used in the Movement ’ s demonstrations.", "34. The Government referred to the case-law of the Convention institutions, including the Court ’ s decision in Garaudy v. France ( ( dec. ), no. 65831/01, ECHR 2003-IX). They pointed out that, where the right to freedom of expression had been relied on by applicants to justify the publication of texts that infringed the very spirit of the Convention and the essential values of democracy, the European Commission of Human Rights had had recourse to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible (examples included Glimmerveen and Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, Decisions and Reports (DR) 18, p. 187, and Marais v. France, no. 31159/96, Commission decision of 24 June 1996, DR 86 -B, p. 184). In the Government ’ s view, the Court had subsequently confirmed that approach ( they referred to Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports of Judgments and Decisions 1998 - VII). Moreover, they pointed out that, in a case concerning Article 11 ( W.P. and Others v. Poland ( dec. ), no. 42264/98, ECHR 2004 - VII), the Court had observed that “the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention”. Similar conclusions had been reached in the cases of Norwood v. the United Kingdom ( ( dec. ), no. 23131/03, ECHR 2004 - XI), and Witzsch v. Germany ( ( dec. ), no. 7485/03, 13 December 2005 ); the Government referred by contrast to Vajnai v. Hungary ( no. 33629/06, § 25, ECHR 2008 ).", "35. The applicant argued in reply that the activities of the Association did not constitute abuse of the right to freedom of expression and association, their objective having been the restoration of the rule of law by protecting citizens from criminals. The Association had not been involved in any activity aimed at the destruction of any of the rights and freedoms set forth in the Convention.", "36. The Court observes at the outset that, unlike the cases cited by the Government involving the right to freedom of expression, the present application concerns the applicant ’ s right to freedom of association, and indeed a quite serious restriction on it, resulting in the termination of the Association ’ s legal existence as such. Therefore, the present application is to be distinguished from those relied on by the Government. In respect of the latter the Court observes that, particularly in Garaudy and in Lehideux and Isorni ( both cited above), the justification of Nazi-like politics was at stake. Consequently, the finding of an abuse under Article 17 lay in the fact that Article 10 had been relied on by groups with totalitarian motives.", "37. In the instant case, however, it has not been argued by the Government that the applicant expressed contempt for the victims of a totalitarian regime (contrast Witzsch, cited above) or that he belonged to a group with totalitarian ambitions. Nor does the information contained in the case file support such a conclusion. The applicant was, at the material time, the chairman of a registered association. He complains about the dissolution of that association together with that of a movement which, in the domestic courts ’ view, constituted an entity within that association, essentially on account of a demonstration which had not been declared unlawful at the domestic level and did not lead to any act of violence. In these circumstances, the Court cannot conclude that the Association ’ s activities were intended to justify or propagate an ideology of oppression serving “totalitarian groups”.", "38. Those activities, whose compatibility with Article 11 of the Convention will be the subject matter of a review on the merits (compare and contrast Féret v. Belgium, no. 15615/07, § 52, 16 July 2009), do not reveal prima facie any act aimed at the destruction of any of the rights and freedoms set forth in the Convention (see Sidiropoulos and Others v. Greece, 10 July 1998, § 29, Reports 1998 ‑ IV) or any prima facie intention on the applicant ’ s part to publicly defend or disseminate propaganda in support of totalitarian views (see Vajnai, cited above, §§ 24 ‑ 26). Only when the above-mentioned review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 96, ECHR 2003 ‑ II).", "39. It follows that, for the Court, the application does not constitute an abuse of the right of petition for the purposes of Article 17 of the Convention. Therefore, it is not incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a ) The Government", "40. The Government maintained that the Movement had not had a distinct legal status but had been a unit of the Association created, organised and financed by the latter. Its members had acted in the interests and under the guidance of the Association and paid their membership fees to it. The fact that the Association ’ s charter did not clarify its internal structure could not lead to the conclusion that the Movement had not been de jure part of the Association. However, even assuming that the Movement had been a distinct entity de jure, its de facto links to the Association justified the finding that the Association had overstepped its freedom of expression on account of the Movement ’ s operation. Therefore, the Association chaired by the applicant had not been dissolved because of the acts of a distinct entity but because of its own activities.", "41. Moreover, the Government were of the opinion that there had been no interference with the applicant ’ s freedom of association, since that freedom did not cover the right to associate in order to disseminate racist propaganda. However, even if there had been interference, it had been prescribed by law and served the legitimate aims of protecting public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others.", "42. Furthermore, the interference had been necessary in a democratic society, given the racist and anti-Semitic content of the demonstrations staged by the Movement and its paramilitary rituals, which were intimidating and traumatising, promoted segregation, increased social tension and provoked violence. As to proportionality, dissolution was an appropriate sanction for the propagation of racial discrimination and segregation. It was not even the most severe sanction available, since criminal sanctions could be invoked as well as an ultima ratio against the individuals involved who were responsible for the most serious expressions of racial hatred, inciting others to violence.", "( b ) The applicant", "43. At the outset the applicant stressed that, contrary to the findings of the domestic courts, the impugned actions of the Movement could not be imputed to the dissolved Association. He disputed that the Movement had constituted an integral part of the Association, since the two entities had functioned separately and independently, albeit in cooperation. He also emphasised that none of the Association ’ s members had participated in the Movement.", "44. The applicant contested the Government ’ s argument that the dissolution of the Association had pursued a legitimate aim in the interests of national security or public safety, that is, for the prevention of disorder and crime and the protection of the rights and freedoms of others within the meaning of Article 11 § 2 of the Convention. In his view, the courts had failed to establish any instances of actual disorder or any violation of the rights of others. He stressed that the domestic decisions had referred to a merely hypothetical danger whose prevention could not be seen as a legitimate aim under the Convention.", "45. Furthermore, the applicant alleged that, even assuming that the interference with the rights enshrined under Article 11 of the Convention had been lawful, the dissolution of the association had been neither necessary nor proportionate to the aims pursued. He noted that any interference by the public authorities with the exercise of the right of freedom of association had to be in proportion to the seriousness of the impugned conduct; thus, the sanction pronounced by the domestic courts had been excessively severe. Under the Court ’ s case-law, dissolution was reserved for situations in which the activities of an association seriously endangered the very essence of the democratic system; neither the Association ’ s nor the Movement ’ s activities had sought or had such an effect. In any event, the relevant domestic law did not provide for any sanction other than dissolution in respect of the allegedly unlawful activities of an association, a fact which in itself excluded all proportionality.", "46. The applicant also pointed out that the exceptions set out in Article 11 § 2 were to be construed narrowly : only convincing and compelling reasons could justify restrictions on freedom of association. However, in the present case, the domestic courts had not adduced sufficient and relevant reasons for the restriction, since they had failed to demonstrate how the activities of the Association were capable of provoking conflicts or either supporting or promoting violence and the destruction of democracy. Indeed, the Association ’ s activities had merely been aimed at enabling the discussion of unresolved social problems such as the security of vulnerable people and the extraordinarily high crime rate.", "47. The applicant further drew attention to the Court ’ s case-law considering Article 11 in the light of Article 10. In that context he conceded that the ideas expressed by the Movement might be offensive or shocking. Nevertheless, they did not amount to incitement to hatred or intolerance, and were thus compatible with the principles of pluralism and tolerance within a democratic society.", "( c ) The third party", "48. The European Roma Rights Centre submitted that the freedoms guaranteed under Article 11 of the Convention could be restricted in order to protect the rights and freedoms of minority communities. Making reference, inter alia, to the relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, it argued that organisations which attempted to justify or promote racial hatred and discrimination in any form did not come within the scope of the protection provided by Article 11. The third party further drew attention to the fact that minorities, and in particular the Roma, enjoyed special protection under Article 14 of the Convention, and referred to the emerging international consensus amongst Contracting States of the Council of Europe towards recognising an obligation to protect their security.", "2. The Court ’ s assessment", "( a ) Whether there was interference", "49. The Court notes that the Association chaired by the applicant was dissolved and that the effects of that measure extended to the Movement (see paragraph 15 above). It therefore considers that there was interference with the applicant ’ s rights guaranteed under Article 11 of the Convention.", "( b ) Whether the interference was justified", "50. Such interference will constitute a violation of Article 11 unless it was prescribed by law, pursued one or more legitimate aims for the purposes of Article 11 § 2 and was necessary in a democratic society to achieve those aims.", "( i ) “Prescribed by law”", "51. The Court observes that the Association, and consequently the Movement, was dissolved under section 16(2) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 above), including the reference therein to section 2(2) (“prejudice the rights and liberties of others”).", "It further takes note of the parties ’ diverging arguments as to whether the domestic court decisions lawfully included the dissolution of the Movement in ordering the Association ’ s disbandment.", "In this connection the Court notes that, in reply to the prosecution authorities ’ factual observations (see in detail in paragraph 11 above), the Budapest Court of Appeal and the Supreme Court held (see paragraphs 15 ‑ 16 above) that the Movement had to be regarded, as a matter of interpretation of the domestic law on associations, as an entity operating within the Association rather than independently. Those courts observed that the principal activity of the Association was the founding, operation, guidance and financing of the Movement.", "The Court finds no particular element in the case file or the parties ’ submissions which would render this application of the law arbitrary, the national authorities being better positioned to provide an interpretation of the national law and to assess evidence. In view of the fact that the creation of the Movement was a project of the Association, that the Movement and the Association shared a bank account, that candidates for membership of the Movement were assessed by the Association and that the former ’ s uniform could be bought from the latter, the Court does not find the position of those courts unreasonable.", "Consequently, the Court is satisfied that the dissolution of the Association on account of the actions of the Movement was “prescribed by law”, given the domestic courts ’ findings as to their relationship.", "( ii ) Legitimate aim", "52. The Court considers that the impugned measure can be seen as pursuing the aims of public safety, the prevention of disorder and the protection of the rights of others, all of which are legitimate for the purposes of Article 11 § 2 of the Convention, notwithstanding the applicant ’ s allegation that the domestic courts had not demonstrated the existence of any actual instances of disorder or violation of the rights of others (see paragraph 44 above).", "It remains to be ascertained whether the impugned measure was necessary in a democratic society.", "( iii ) Necessary in a democratic society", "( α ) General principles", "53. The general principles articulated in the Court ’ s case-law in this sphere are summarised in the case of United Communist Party of Turkey and Others v. Turkey (30 January 1998, Reports 1998 - I) as follows.", "“42. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (see, among other authorities, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 30, § 64).", "43. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy ...", "As the Court has said many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, the Vogt judgment cited above, p. 25, § 52). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention.", "...", "45. Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75).", "...", "In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘ necessary in a democratic society ’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘ democratic society ’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.", "...", "46. Consequently, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties ’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts. The Court has already held that such scrutiny was necessary in a case concerning a Member of Parliament who had been convicted of proffering insults (see the Castells judgment cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future.", "47. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 31).”", "54. Further relevant principles are contained in the judgment in Refah Partisi (the Welfare Party) and Others (cited above), as follows:", "“( γ ) The possibility of imposing restrictions, and rigorous European supervision", "9 6. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State ’ s institutions, of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system. For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11 – a matter which the Court considers below. ...", "...", "98. ... [A] political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47).", "99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy ..., no one must be authorised to rely on the Convention ’ s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany ( dec. ), no. 39793/98, ECHR 2001-XII).", "In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.", "...", "( δ ) Imputability to a political party of the acts and speeches of its members", "101. The Court further considers that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. That is why the Court has always pointed out that a party ’ s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party ’ s leaders and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions ...", "( ε ) The appropriate timing for dissolution", "102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see the Chamber ’ s judgment, § 81).", "103. The Court takes the view that such a power of preventive intervention on the State ’ s part is also consistent with Contracting Parties ’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non ‑ State entities ... A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d ’ être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy.", "( ζ ) Overall examination", "104. In the light of the above considerations, the Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, p. 1258, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’.", "105. The overall examination of the above points that the Court must conduct also has to take account of the historical context in which the dissolution ... took place ... in the country concerned to ensure the proper functioning of ‘ democratic society ’ (see, mutatis mutandis, Petersen, cited above).”", "55. The Court ’ s judgment in Herri Batasuna and Batasuna v. Spain (nos. 25803/04 and 25817/04, ECHR 2009) contains further relevant passages:", "“79. ... It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds ...", "...", "81. ... [A] State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see Refah Partisi (the Welfare Party) and Others, cited above, § 102).", "...", "83. ... [The] Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently and reasonably imminent, and (ii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’ ...”", "( β ) Application of those principles to the present case", "56. The Court points out at the outset that, although the right to create and operate political parties falls within the protection of Article 11 of the Convention, as does the right to create and operate social organisations, these two types of entity differ from each other as regards, amongst other elements, the role which they play in the functioning of a democratic society, since many social organisations contribute to that functioning only in an indirect manner.", "In several member States of the Council of Europe, political parties enjoy a special legal status which facilitates their participation in politics in general and in elections in particular; they also have specific legally endorsed functions in the electoral process and in the formation of public policies and public opinion.", "Social organisations do not normally enjoy such legal privileges and have, in principle, fewer opportunities to influence political decision ‑ making. Many of them do not participate in public political life, although there is no strict separation between the various forms of associations in this respect, and their actual political relevance can be determined only on a case-by-case basis.", "Social movements may play an important role in the shaping of politics and policies, but compared with political parties such organisations usually have fewer legally privileged opportunities to influence the political system. However, given the actual political impact which social organisations and movements have, when any danger to democracy is being assessed, regard must be had to their influence.", "57. In the Court ’ s view, the State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. One such value is the coexistence of members of society free from racial segregation, without which a democratic society is inconceivable. The State cannot be required to wait, before intervening, until a political movement takes action to undermine democracy or has recourse to violence. Even if that movement has not made an attempt to seize power and the risk of its policy to democracy is not imminent, the State is entitled to act preventively if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy (see Refah Partisi (the Welfare Party) and Others, cited above, § 102).", "58. In assessing the necessity and proportionality of the measure complained of, the Court notes that the instant case concerns the dissolution of an association and a movement rather than that of a political party. The responsibilities originating in the particular constitutional role and legal privileges that apply to political parties in many member States of the Council of Europe may apply in the case of social organisations only to the extent that the latter do actually have a comparable degree of political influence. On the other hand, the Court is aware that the termination of the legal existence of the Association and the Movement was a sanction of considerable gravity, because it equated to stripping these groups of the legal, financial and practical advantages normally secured to registered associations in most jurisdictions (see paragraph 18 above). Therefore, any such measure must be supported by relevant and sufficient reasons, just as in the case of dissolution of a political party, although in the case of an association, given its more limited opportunities to exercise national influence, the justification for preventive restrictive measures may legitimately be less compelling than in the case of a political party. In view of the difference in the importance for a democracy between a political party and a non-political association, only the former deserves the most rigorous scrutiny of the necessity of a restriction on the right to associate (compare, per analogiam, the level of protection granted to political speech and to speech which does not concern matters of public interest, in Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I ). This distinction has to be applied with sufficient flexibility. As regards associations with political aims and influence, the level of scrutiny will depend on the actual nature and functions of the association in view of the circumstances of the case.", "59. The Court observes that the Movement about whose dissolution the applicant complains was created by the Association with the stated purpose of “defending a physically, spiritually and intellectually defenceless Hungary ” (see paragraph 8 above). The Movement ’ s subsequent activities involved rallies and demonstrations, the members sporting uniforms and parading in military-like formations. These events were held in various parts of the country, and in particular in villages with large Roma populations such as Tatárszentgyörgy; calls were also made for the defence of “ethnic Hungarians” against so-called “Gypsy criminality” (see paragraph 10 above). In reaction to this sequence of events, the public prosecutor brought an action against the Movement and the Association, the essence of which was that the defendants ’ activities amounted to racist intimidation of citizens of Roma origin (see paragraph 11 above).", "60. In the ensuing judicial proceedings the courts assessed the links between the two defendants and found convincing evidence that they did not constitute separate entities. In view of the arguments considered in this context, the Court cannot find this conclusion unreasonable or arbitrary (see paragraphs 11, 13, 15, 16 and 51 above).", "61. The case resulted in the dissolution of both the Association and the Movement. In essence, the domestic courts found that even though no actual violence had occurred as a result of the defendants ’ activities, they were liable for having created an anti-Roma atmosphere through verbal and visual demonstrations of power. This amounted to a breach of the relevant law on associations, ran counter to human dignity and prejudiced the rights of others, that is, of Roma citizens. In the latter connection the courts observed that the central theme of the Tatárszentgyörgy rally was “Gypsy criminality”, a racist concept. The courts paid particular attention to the fact that the impugned rallies involved military- style uniforms, commands, salutes and formations as well as armbands reminiscent of Arrow Cross symbols. On appeal, this reasoning was extended to include considerations to the effect that the populations of the villages targeted by the Movement were a “captive audience”, because those citizens had not been in a position to avoid the extreme and exclusionary views conveyed by the Movement ’ s actions. In the courts ’ view, the latter amounted to creating a public menace by generating social tension and bringing about an atmosphere of impending violence (see paragraphs 15 and 16 above).", "62. The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Lehideux and Isorni, cited above, § 50 ). The Court ’ s task is merely to review the decisions delivered by the authorities within their margin of appreciation. In so doing, it must satisfy itself that they based their decisions on an acceptable assessment of the relevant facts (see Incal v. Turkey, 9 June 1998, § 48, Reports 1998 ‑ IV). In the circumstances of the present case, the Court cannot find the conclusions of the Hungarian courts unreasonable or arbitrary and it shares the view of those courts that the activities of and the ideas expressed by the Movement relied on a race-based comparison between the Roma minority and the ethnic Hungarian majority (see paragraph 13 above).", "63. The Court has previously held, in the context of Article 10, that ideas or conduct cannot be excluded from the protection provided by the Convention merely because they are capable of creating a feeling of unease in groups of citizens or because some may perceive them as disrespectful (see Vajnai, cited above, § 57). It is of the view that similar considerations must apply to freedom of association in so far as it concerns the association of individuals in order to further ideas which are less than widely accepted, or even shocking or disturbing. Indeed, unless the association in question can reasonably be regarded as a breeding ground for violence or as incarnating a negation of democratic principles, radical measures restricting such fundamental rights as that of freedom of association – in the name of protecting democracy – are difficult to reconcile with the spirit of the Convention, which is aimed at guaranteeing the articulation of political views ( even those which are difficult to accept for the authorities or a larger group of citizens and contest the established order of society ) through all peaceful and lawful means, including association and assemblies (see, mutatis mutandis, Güneri and Others v. Turkey, nos. 42853/98, 43609/98 and 44291/98, § 76, 12 July 2005).", "64. That being so, it has to be ascertained whether in this particular case the actions of the Association and the Movement remained within the limits of legal and peaceful activities. In this connection the Court cannot overlook the fact that their activists staged several rallies, such as the event in Tatárszentgyörgy which involved some 200 persons in a village of approximately 1,800 inhabitants. It is true that no actual violence occurred, although it is not possible to determine with hindsight whether or not this was because of the presence of the police. The activists were marching in the village wearing military- style uniforms and threatening armbands, in a military-like formation, giving salutes and issuing commands of the same kind.", "65. In the Court ’ s view, such a rally was capable of conveying the message to those present that its organisers had the intention and the capacity to have recourse to a paramilitary organisation to achieve their aims, whatever they might be. The paramilitary formation was reminiscent of the Hungarian Nazi (Arrow Cross) movement, which was the backbone of the regime that was responsible, amongst other things, for the mass extermination of Roma in Hungary. Having regard to the fact that there were established organisational links between the Movement whose activists were present and the Association, the Court also finds that the intimidating effect of the rallies in Tatárszentgyörgy and elsewhere must have gained momentum – and indeed, have been multiplied – by virtue of the fact that the rallies were backed by a registered association benefiting from legal recognition.", "66. The Court considers that the demonstration by political protagonists of their ability and willingness to organise a paramilitary force goes beyond the use of peaceful and lawful means of articulating political views. In the light of historical experience – such as that of Hungary in the wake of the era of Arrow Cross power – the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of a racial minority, especially when they are in their homes and as such constitute a captive audience. In the Court ’ s view, this exceeds the limits of the scope of protection secured by the Convention in relation to expression (see Vajnai, cited above ) or assemblies and amounts to intimidation, which is – in the words of the United States Supreme Court ’ s judgment in Virginia v. Black (see paragraph 31 above) – a “ true threat ”. The State is therefore entitled to protect the right of the members of the target groups to live without intimidation. This is particularly true because they were singled out on a racial basis and were intimidated on account of their belonging to an ethnic group. In the Court ’ s view, a paramilitary march goes beyond the mere expression of a disturbing or offensive idea, since the message is accompanied by the physical presence of a threatening group of organised activists. Where the expression of ideas is accompanied by a form of conduct, the Court considers that the level of protection generally granted to freedom of expression may be reduced in the light of important public-order interests related to that conduct. If the conduct associated with the expression of ideas is intimidating or threatening or interferes with the free exercise or enjoyment by another of any Convention right or privilege on account of that person ’ s race, these considerations cannot be disregarded even in the context of Articles 10 and 11.", "67. In the instant case the impugned activities quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, and the Court is not convinced by the applicant ’ s arguments that the intention of the dissolved entities was not the singling-out and intimidation of this vulnerable group (see Horváth and Kiss v. Hungary, no. 11146/11, § 102, 29 January 2013). In this connection the Court recognises the concerns of various international bodies (see paragraphs 26 - 28 above).", "68. As the Court has already pointed out (see paragraph 57 above), in such circumstances the authorities could not be required to await further developments before intervening to secure the protection of the rights of others, since the Movement had taken concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy.", "69. The Court considers that the intimidating character of the rallies in question is an overriding consideration, despite the fact that the actual assemblies were not banned by the authorities and no violent act or crime occurred. What matters is that the repeated organisation of the rallies (see paragraph 15 above) was capable of intimidating others and therefore of affecting their rights, especially in view of the location of the parades. With regard to the dissolution of the Association, it is immaterial that the demonstrations, taken in isolation, were not illegal, and the Court is not called upon in the present case to determine to what extent the demonstrations amounted to exercise of the Convention right of assembly. It may be only in the light of the actual conduct of such demonstrations that the real nature and goals of an association become apparent. In the Court ’ s view, organising a series of rallies allegedly in order to keep “Gypsy criminality” at bay by means of paramilitary parading can be regarded as implementing a policy of racial segregation. In fact, the intimidating marches can be seen as constituting the first steps in the realisation of a certain vision of “law and order” which is racist in essence.", "The Court would point out in this context that if the right to freedom of assembly is repeatedly exercised by way of intimidating marches involving large groups, the State is entitled to take measures restricting the related right to freedom of association in so far as it is necessary to avert the danger which such large-scale intimidation represents for the functioning of democracy (see paragraph 54 above). Large-scale, coordinated intimidation – related to the advocacy of racially motivated policies which are incompatible with the fundamental values of democracy – may justify State interference with freedom of association, even within the narrow margin of appreciation applicable in the present case. The reason for this relates to the negative consequences which such intimidation has on the political will of the people. While the incidental advocacy of anti-democratic ideas is not sufficient in itself to justify banning a political party on the ground of compelling necessity (see paragraph 53 above), and even less so in the case of an association which cannot make use of the special status granted to political parties, the circumstances taken overall, and in particular any coordinated and planned actions, may constitute sufficient and relevant reasons for such a measure, especially where other potential forms of expression of otherwise shocking ideas are not directly affected (see paragraph 71 in fine below).", "70. In view of the above considerations, the Court is convinced that the arguments adduced by the national authorities were relevant and sufficient to demonstrate that the impugned measure corresponded to a pressing social need.", "71. The Court is aware that the disbanding of the Movement and the Association represented quite a drastic measure. However, it is satisfied that the authorities nevertheless chose the least intrusive – indeed, the only reasonable – course of action to deal with the issue. Moreover, it is to be noted that the domestic authorities had previously drawn the attention of the Association to the unlawful nature of the Movement ’ s activities, a move which resulted only in formal compliance (see paragraph 9 above), to the extent that further rallies took place during the ongoing proceedings (see paragraph 15 above – compare S.H. and Others v. Austria [GC], no. 57813/00, § 84, ECHR 2011). In the Court ’ s view, the threat to the rights of others represented by the Movement ’ s rallies could be effectively eliminated only by removing the organisational back - up of the Movement provided by the Association. Had the authorities acquiesced in the continued activities of the Movement and the Association by upholding their legal existence in the privileged form of an entity under the law on associations, the general public might have perceived this as legitimisation by the State of this menace. This would have enabled the Association, benefiting from the prerogatives of a legally registered entity, to continue to support the Movement, and the State would thereby have indirectly facilitated the orchestration of its campaign of rallies. Furthermore, the Court notes that no additional sanction was imposed on the Association or the Movement, or on their members, who were in no way prevented from continuing political activities in other forms (see, a fortiori, Refah Partisi (the Welfare Party) and Others, cited above, §§ 133-34). In these circumstances, the Court finds that the measure complained of was not disproportionate to the legitimate aims pursued.", "72. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 11 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1978 and lives in Budapest.", "7. On 8 May 2007 the Hungarian Guard Association ( Magyar Gárda Egyesület – “the Association”) was founded by ten members of the political party Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom ) with the stated aim of, inter alia, preserving Hungarian traditions and culture.", "8. In its turn, on 18 July 2007 the Association founded the Hungarian Guard Movement ( Magyar Gárda Mozgalom – “the Movement”). The Bureau of the Association stated that it had decided to “ create the Hungarian Guard, first operating it as a movement but later attempting to integrate it into the Association as a section ”. It was also decided that “in order to integrate the Hungarian Guard into the Association, [the latter ’ s current ] charter need [ ed ] to be amended ... by 10 October 2007”.", "The Movement ’ s objective was defined as “defending a physically, spiritually and intellectually defenceless Hungary ”. The tasks undertaken by the Movement, as listed in its deed of foundation, included the physical and psychological training of its members, participation in disaster management and in ensuring public safety, as well as the initiation of a social dialogue regarding these issues through public events.", "9. On 4 October 2007 the Budapest public prosecutor ’ s office addressed a notice to the Association calling on it to terminate its unlawful activities. It was noted that the Association had carried out activities that were not in accordance with its aims as defined in its charter. In particular, it was observed that on 25 August 2007 it had organised the swearing-in of fifty - six “guardsmen” in Buda Castle. Subsequently, the Association had conducted a national campaign aimed at popularising tasks defined for the Movement which were not in accordance with the aims of the Association. It was noted that certain aims of the Movement were not amongst those defined for the Association, nor were they in conformity with the Association ’ s cultural and tradition-preserving nature.", "On 9 November 2007 the applicant, as chairman of the Association, notified the public prosecutor ’ s office that the unlawful activities had been terminated by deleting the impugned part from the Movement ’ s deed of foundation, and that he had initiated the amendment of the Association ’ s charter. Accordingly, on 7 December 2007 the General Assembly of the Association had decided to add the following provision to paragraph 2 of its charter: “(f) In accordance with its name, the Hungarian Guard Association has the aim of engaging in dialogue with society and of holding public events and gatherings for citizens on issues affecting their security, such as disaster management, national defence and life-saving techniques. ”", "10. Purportedly in pursuit of these goals, members of the Movement dressed in uniform subsequently held rallies and demonstrations throughout Hungary, including in villages with large Roma populations, and called for the defence of “ethnic Hungarians” against so-called “Gypsy criminality”. These demonstrations and rallies were not prohibited by the authorities.", "One of these demonstrations, involving some 200 activists, was organised in Tatárszentgyörgy, a village of around 1,800 inhabitants, on 9 December 2007. The police were present and did not allow the march to pass through a street inhabited by Roma families.", "11. In reaction to this event, on 17 December 2007 the Budapest Chief Prosecutor ’ s Office lodged a court action seeking the dissolution of the Association. The action was based on the Association ’ s alleged abuse of the right to freedom of assembly and the fact that it had conducted activities which infringed the rights of the Roma by generating fear among them through speeches and appearance, that is to say, by the activists wearing uniforms, marching in formation and issuing military-style commands.", "The Chief Prosecutor ’ s Office was of the view that the Movement constituted a division of the Association, and that its activity in fact represented a significant part of the latter ’ s activities. It argued that the Movement was not a “ spontaneous community ”, in that its members were all registered, and stressed that it had been created by the presidency of the Association, that applications for membership were assessed by the Association and that its uniform could be bought from the Association.", "12. In the ensuing proceedings the Association claimed, however, that there were no organisational ties between itself and the Movement of a kind amounting to a unity of the two; accordingly, it argued that it bore no responsibility for the Movement. It also stated that, in any event, the Movement ’ s activities did not present any objective danger to anyone. According to the Association, a subjective feeling of fear could not give rise to any limitation on fundamental rights, including freedom of assembly; the Movement ’ s conduct had not been intimidating if regarded objectively.", "13. After holding four hearings the Budapest Regional Court ruled in favour of the Chief Prosecutor ’ s Office on 16 December 2008 and disbanded the Association under section 16(2 ) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 below).", "The court did not accept the arguments concerning the distinction between the two entities and held that a “symbiotic relationship” existed between them. It held that the principal activity of the Association had been the founding, operation, guidance and financing of the Movement, observing, inter alia, that the Movement received donations through the Association ’ s bank account. The legal effect of the judgment was nevertheless limited to the dissolution of the Association; since, in the court ’ s view, the Movement did not have any legal personality, the judgment did not directly extend to it.", "As regards the assembly in Tatárszentgyörgy, the Regional Court held as follows:", "“The essential purpose of the event was indeed to place the spotlight on ‘ Gypsy criminality ’. The use of this generalisation, clearly based on racial and ethnic grounds, violated the principle of equal human dignity ... Moreover, this was not a one-off occasion ... [The Movement] based its programme on discrimination between people and expressed it by way of marches in several cases; this amounted to a demonstration of power and to threatening others through the appearance [of the participants in the marches]. ... The court is of the opinion that, from a constitutional point of view, to raise fear, virtually as a mission, is unacceptable as an aim or role.”", "14. The court noted that the participants, who were uniformed, had worn armbands quite similar to those of officers of the Arrow Cross (responsible for the reign of terror in Hungary in 1944/45). It took the view that marches with participants dressed in this way were objectively capable of wounding “historical sensitivities”.", "The court went on to declare that, despite the Association ’ s stated purpose, its actions had violated Hungary ’ s laws on associations and created an atmosphere of anti-Roma sentiment. According to the court, the verbal and visual demonstration of power alone amounted to an infringement of the law, in the light of historical experience; thus, for the Association to be dissolved it was not necessary for it to have committed an actual offence : the fact that its programme encompassed discrimination amounted to prejudicing the rights of others within the meaning of section 2(2) of Act no. II of 1989 (see paragraph 18 below).", "15. On 2 July 2009 the Budapest Court of Appeal upheld the judgment of the Regional Court. It also considered two further similar demonstrations staged by the Movement, in the village of Fadd on 21 June 2008 and in the village of Sárbogárd on an unspecified date. The Court of Appeal noted that the speeches given by Movement members in the course of the Fadd rally had contained numerous remarks aimed at the exclusion of Roma. As to the Sárbogárd event, the Court of Appeal observed that there had been several anti-Semitic utterances.", "This court established a closer connection between the two entities, extending the scope of its judgment also to the Movement. It held that the Association in fact included the Movement as a “unit”; consequently, the judgment concerned both of them. The Association ’ s dissolution also dismantled the organisational framework of individuals operating within any movements related to the dissolved association.", "The court ruled that the choice of locations for the demonstrations, that is, villages with large Roma populations, could not be seen as social dialogue, but as an extreme form of expression in the context of a quasi ‑ military demonstration of force consisting of the cumulative effects of military- style uniforms, formations, commands and salutes. The Court of Appeal, while it upheld in essence the arguments of the Regional Court, argued that the population of the villages had been subjected as a “ captive audience ” to these extreme and exclusionist views without being able to avoid receiving them. In the court ’ s view, the events organised by the Movement constituted a risk of violence, generated conflict, breached public order and peace and violated the right to liberty and security of the inhabitants of the villages, despite the fact that all the demonstrations, which were tightly controlled by the police, had finished without any acts of actual violence.", "The court also considered the applicant ’ s freedom of expression. It stated, upholding the arguments of the first-instance judgment and citing the case-law of the Court, that this freedom did not cover hate speech or incitement to violence.", "16. On 15 December 2009 the Supreme Court upheld the judgment of the Budapest Court of Appeal. It endorsed the Court of Appeal ’ s finding that the Movement was in fact an entity within the Association. It also agreed with the lower courts as to the necessity of disbanding the Association, pointing out that the Movement ’ s rallies had caused situations of conflict whose protagonists might potentially have had recourse to violence.", "This decision was served on 28 January 2010.", "IV. 1. The potential harms resulting from incitement to hate, and from humiliating expressions of contempt for certain groups in a population are amply documented in the annals of human experience.", "...", "The tragic historical experiences of our century prove that views preaching racial, ethnic, national or religious inferiority or superiority and the dissemination of ideas of hatred, contempt and exclusion endanger the values of human civilization.", "It is proved both by history and by the events of our times that any utterance expressing an intention to arouse hatred against a specific group of people can push social tension to extremes, disturb social harmony and peace and in an extreme case can result in violent clashes between certain groups of society.", "In addition to the historical and contemporary experiences proving the extremely damaging effects of arousing hatred, it is necessary to consider the everyday threats that result from the unlimited expression of ideas and concepts liable to arouse hatred. Such expression prevents human communities from living in harmony with other groups. By intensifying emotional and social tensions within a smaller or bigger community, this can destroy ties within the society, reinforce extreme positions and increase prejudice and intolerance. All this results in a diminution of the chances of creating a tolerant and multicultural society which acknowledges pluralism, the right to be different and the equal dignity of all people, and in which discrimination is not regarded as a value.", "2. To afford constitutional protection to the incitement of hatred against certain groups under the guise of freedom of expression and of the press would present an irresolvable contradiction with the value system and political orientation expressed in the Constitution, that is, with the democratic rule of law, the equality of human beings, equal dignity, the prohibition of discrimination, freedom of religion and conscience and the protection of national and ethnic minorities, as recognised by the various Articles of the Constitution.", "...", "Incitement to hatred is a negation of the above-mentioned notions, an emotional preparation for the use of violence. It is an abuse of freedom of expression, being an intolerant classification of a group characteristic of dictatorships rather than democracies. To tolerate the exercise of freedom of expression and of the press in a manner prohibited by Article 269 § 1 of the Criminal Code would contradict the requirements flowing from the democratic rule of law.", "...", "As a summary of its position, the Constitutional Court points out that the restriction of freedom of expression and of the press is necessitated and justified by the negative historical experiences surrounding the arousal of hatred against certain groups of people, by the protection of constitutional values and by the obligation of the Republic of Hungary to comply with its commitments under international law.", "...”", "23. Decision no. 14/2000 (V.12) AB of the Constitutional Court contains the following passages:", "“3. The freedom to express one ’ s opinion is not only a subjective right but also a guarantee of the free expression of various views shaping public opinion. ...", "Although this right can be restricted, it enjoys special protection due to its primary role, and thus may be restricted only in relation to a few other rights. Therefore, secondary theoretical values such as public peace enjoy less protection than the right concerned. ...", "Like the right to life, the right to human dignity is eminently protected in the Constitution ... The Constitution is not value-neutral but has its own set of values. Expressing opinions inconsistent with constitutional values is not protected by Article 61 of the Constitution. ...", "The Constitutional Court points out that, also under the Convention, freedom of expression carries with it ‘ duties and responsibilities ’. All State authorities are obliged to protect the values of a democratic State under the rule of law and to respect the dignity of persons. Action must be taken against conduct representing force, hatred and conflict. Rejecting the use or threat of force as a means of solving conflicts is part of the complex concept of democracy.”", "24. Decision no. 18/2004 (V.25) AB of the Constitutional Court contains the following passage:", "“III. 2.1. ... Even in the case of extreme opinions, it is not the content of the opinion but the direct and foreseeable consequences of its communication that justify a restriction on free expression and the application of legal measures under civil or, in some cases, criminal law.”", "25. Decision no. 95/2008 (VII.3) AB of the Constitutional Court contains the following passages:", "“III. 3.4. ... The aim of the amendment [to the Criminal Code] is to punish hate speech and gestures even if the injured party cannot be identified. As a result, however, the amendment would punish not only conduct violating the honour and dignity of particular persons but all forms of hate speech, including racist statements containing generalisations, meaning that the ‘ affected ’ parties or the parties that consider themselves to be ‘ affected ’ are not forced to take part in or follow the exchange of communication between persons expressing hatred or to face hate thoughts in certain media outlets. ... Extremist voices are not suppressed in constitutional democracies simply on account of their content. In a democratic society such generalising, racist speech cannot change the fact that, from the State ’ s perspective, each citizen is equally valuable and has the same basic rights.", "In its present form, the amendment would also punish speeches containing only such generalisations. Participation in the communication by persons belonging to the group being attacked, that is, their listening to or being exposed in any way to the racist statements, is not a statutory element of the offence as defined in the amendment.", "However, these are precisely the cases in which the expression of an opinion may offend not only the sensitivity or sense of dignity of certain persons but also their constitutional rights. For example, if a perpetrator expresses his extremist political convictions in such a manner that a person belonging to the injured group is forced to listen to the communication in a state of intimidation, and is not in a position to avoid it [ ‘ captive audience ’ ] ... In this case, the right of the person concerned not to listen to or become aware of the distasteful or injurious opinion deserves protection. ...", "Persons belong not only to the community of citizens but also to a narrower group or community. An individual can, also by virtue of belonging to such a group, be exposed to an injury of such gravity and intensity that recourse to criminal - law sanctions may even be warranted to redress the issue.”", "III. OBSERVATIONS of international Human rights monitoring bodies", "26. The Concluding Observations of the United Nations Human Rights Committee in respect of Hungary (adopted in Geneva, 11-29 October 2010) contain the following passage:", "“18. The Committee is concerned at the virulent and widespread anti-Roma statements by ... members of the disbanded Magyar Gárda. ... Furthermore, it is concerned at indications of rising anti-Semitism in the State party. The Committee is concerned at the Constitutional Court ’ s restrictive interpretation of article 269 of the Penal Code on incitement to violence, which may be incompatible with the State party ’ s obligations under article 20 ... ”", "27. The Fourth Report of the European Commission against Racism and Intolerance on Hungary, adopted on 20 June 2008, contains the following passages:", "“61. ... [ T ] here has been a disturbing increase in racism and intolerance in public discourse in Hungary. In particular, the creation and rise of the radical right-wing Hungarian Guard ( Magyar Gárda ) ... is consistently cited as a cause for deep concern. Since its creation in August 2007 and the public swearing in of several hundred new members in October 2007, the Hungarian Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations; despite apparently innocuous articles of association, amongst the group ’ s chief messages is the defence of ethnic Hungarians against so-called ‘ Gipsy crime [1] ‘. Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with insignia and flags closely resembling the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II, and during whose spell in power tens of thousands of Jews and Roma were killed or deported.", "...", "73. ... Groups such as the Hungarian Guard also openly express antisemitic views, ... the expression of antisemitic views is currently on the rise in Hungary.”", "28. The Third Opinion on Hungary of the Advisory Committee of the Framework Convention for the Protection of National Minorities, adopted on 18 March 2010, contains the following passage:", "“75. Since its creation in 2007, the Hungarian Guard (Magyar Gárda ), has organised numerous public rallies throughout the country, including in villages with large Roma populations, during which members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with Nazi insignia and flags. ... the Advisory Committee is concerned by this threatening behaviour. ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "17. The Constitution, as in force at the material time, contained the following provisions:", "Article 2", "“3. The activities of social organisations, government bodies or individual citizens may not be directed at the forcible acquisition or exercise of public power, or at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as are permitted by law.”", "Article 63", "“1. In the Republic of Hungary every person has the right, on the basis of the right of association, to establish organisations whose goals are not prohibited by law and to join such organisations.", "2. The establishment of armed organisations with political objectives shall not be permitted on the basis of the right of association.", "3. A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the right of assembly and the financial management and operation of political parties.”", "18. Act no. II of 1989 on the right to freedom of association provides as follows:", "Section 2", "“(1) By virtue of the right of association private individuals, legal persons and their entities which have no legal personality may, subject to the aims of their activities and the intention of their founders, form and operate civil society organisations.", "(2) The exercise of the right of association may not violate Article 2 § 3 of the Constitution, nor may it constitute a criminal offence or incitement to a criminal offence, and may not prejudice the rights and liberties of others.”", "Section 3", "“(1) A civil society organisation is a voluntarily established self-governing organisation formed for a purpose stated in its articles of association, which has registered members and organises its members ’ activities in order to further its purpose.", "(2) Unregistered members may also participate in large-scale public events .”", "Section 4", "“(1) ... A civil society organisation comes into existence by means of registration with the courts .”", "Section 5", "“A community of private individuals formed by virtue of the right of association, whose operation is not regular or which has no registered members or structure specified under this Act, shall not constitute a civil society organisation .”", "Section 16", "“(2) Upon an action brought by the public prosecutor, the court:", "...", "( d) shall dissolve the civil society organisation if its operation violates section 2(2) hereof;", "...”", "The legal status of associations can be briefly characterised as follows. Associations whose activities do not serve a public interest cannot be supported by individuals by means of income-tax -deductible donations and are not entitled to receive other donations or to apply for public subsidies, as these privileges are reserved for public-benefit organisations under the provisions of Acts nos. CXXVI of 1996 and CLXXV of 2011. However, Act no. LXXXI of 1996 provides that income deriving from the non-profit activities of any association is exempt from corporate tax and that the associations ’ business activities are subject to preferential corporate taxation. In addition, under Act no. CXVII of 1995, advantageous income ‑ tax rules apply to certain services provided by associations and certain remunerations and social welfare benefits received from them. Furthermore, Act no. IV of 1959 ( on the Civil Code) provides that the members of an association are not liable for the association ’ s debts.", "19. Act no. LXXVII of 1993 on the rights of national and ethnic minorities, as in force at the material time, provided as follows:", "Section 4", "“(1) The Republic of Hungary prohibits all policies or conducts which:", "( a) are aimed at or result in a minority ’ s assimilation into, or exclusion or segregation from, the majority nation;", "( b) aim to change the national or ethnic composition of areas populated by minorities ...;", "( c) persecute, impair the lives of or hamper the exercise of the rights of a minority or persons belonging to a minority on account of their belonging to a minority;", "...”", "20. Law-Decree no. 8 of 1976, promulgating the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations at its 21st session on 16 December 1966, provides as follows:", "Article 20", "“2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”", "21. Law-Decree no. 8 of 1969, promulgating the International Convention on the Elimination of All Forms of Racial Discrimination adopted in New York on 21 December 1965, provides as follows:", "Article 1", "“1. In this Convention, the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.", "... ”", "Article 2", "“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ...", "(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;", "...”", "Article 4", "“States Parties condemn all propaganda and all organizations which ... attempt to justify or promote racial hatred and discrimination in any form, and undertake to ...", "( a) ... declare an offence punishable by law all ... incitement to racial discrimination ... and also the provision of any assistance to racist activities, including the financing thereof;", "( b) ... declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;", "...”", "22. Decision no. 30/1992 (V.26) AB of the Constitutional Court contains the following passages:", "“II. 3. The criminal codes of all democratic European countries with continental legal systems, as well as those of England and Wales, Canada and New Zealand. which have the Anglo-Saxon legal system, prohibit incitement on a ‘ racial ’ basis. The demarcation of the boundary between incitement, arousal of hatred and expression of opinion remains hotly contested even internationally.", "...", "IV. COMPARATIVE LAW", "29. The German Federal Constitutional Court held, in its Stoppt den Synagogenbau! judgment of 23 June 2004 ( BVerfGE, 111, 147 – Inhaltsbezogenes Versammlungsverbot ), that to avert danger to public order it was possible to restrict freedom of assembly if it was the Art und Weise, that is, the manner or means by which an assembly was conducted, and not the content, which gave rise to concerns. Accordingly, it was permissible to restrict “aggressive and provocative conduct by participants which intimidates citizens and through which demonstrators create a climate of violent demonstration and potential readiness for violence”. With regard to an extreme right-wing march staged on Holocaust Memorial Day, it held in addition that “the manner or means [ by which an assembly is conducted] [may] give rise to provocation which significantly encroaches upon moral sensitivities [ sittliches Empfinden ] ”. Regarding the way in which the assembly was conducted, the Federal Constitutional Court also attached importance to the provocative behaviour of the protestors. It added that the same applied “when a procession, on account of its overall character [ durch sein Gesamtgepräge ] identifies with the rites and symbols of the Nazi tyranny and intimidates other citizens by evoking the horrors of the past totalitarian and inhumane regime”.", "30. In the context of the dissolution of an association the German Federal Administrative Court, in judgment BVerwG 6 A 3.08 of 5 August 2009, summarised its case-law on the banning of associations as follows:", "“ 16. Whether or not the purpose and activity of an association are punishable under criminal law will depend on the intentions and conduct of its members. An association as such cannot be criminally liable. Only natural persons are punishable under criminal law because criminality implies a capacity for criminal responsibility [ Schuldzurechnungsfähigkeit ], which only natural persons possess. As is clear from section 3(5) of the Association Act [ VereinsG ], it is nevertheless legally possible for an association to be criminally liable [ Strafgesetzwidrigkeit einer Vereinigung ] because the association can form, through its members and through its representing organs, a collective will which is detached from the individual members and which develops its own purpose [ Zweckrichtung ] and can act independently. If the criminal law is breached as a result of this own purpose or of the independent actions of an association, all the conditions for applying the prohibition [ Verbotstatbestand ] are fulfilled. A decisive factor in this context is that the members ’ conduct can be attributed to the association. The character of the association must be shaped [ prägen ] by the criminal offences [ Strafgesetzwidrigkeit ] committed by its members. An association can strive concurrently for different aims; besides the legal aim laid down in its rules, it can also pursue criminal aims which it achieves through the conduct of its members. ...", "17. The prohibition of an association based on section 3(1), first sentence, first alternative, of the Associations Act read in conjunction with the first alternative of Article 9 § 2 of the Basic Law, is de iure independent of the criminal conviction of a member or an official of the association. It is within the competency of the authority issuing the prohibition order and the administrative court to examine whether there has been a breach of criminal law [ Gesetzeswidrigkeit ]. However, it is not the purpose of the prohibition [ Verbotstatbestand ] to impose an additional sanction on individuals who have already violated criminal provisions. Rather, the purpose [of the provision] is to deal with a particular threat to public safety and public order expressed in the founding or continuing existence of an organisation which is planning or committing criminal acts. Such organisations constitute a particular threat to interests [ Rechtsgüter ] protected by the criminal law. The organisation ’ s inherent momentum and its organised human and material resources facilitate and promote punishable acts. At the same time, the sense of responsibility of each member is often reduced, individual resistance to committing a criminal act is lessened, and the impetus to commit further criminal acts is created ( judgment of 18 October 1988, op. cit., p. 307 and pp. 23-24 respectively; Löwer, in: v. Münch / Kunig, GG, Vol. 1, 5th ed. 2000, note 39 ad Article 9). ”", "The German Federal Administrative Court has repeatedly upheld dissolution orders in respect of associations which supported (neo-)Nazi ideas. In its Heimattreue Deutsche Jugend judgment of 1 September 2010 ( BVerwG 6 A 4.09), in which members of the association were propagating Nazi racial treatises and ideas, the Federal Administrative Court reiterated its relevant case-law, stating that in order to satisfy the conditions of the ban the association must have intended to realise its anti-constitutional aims in a militant or aggressive way, a condition which did not require the use of force or a specific violation of the law. It was sufficient, for the finding of an unconstitutional aim that justified the ban, for the programme, imagery and style to indicate an essential relationship with Nazism. The fact that an association aligned itself with the Nazi party (prohibited in Germany) or propagated a racial theory which was not in conformity with the constitutional prohibition of discrimination was sufficient to meet the conditions for banning the association. If an association attempted to hide its unconstitutional intentions, the conditions for the ban would become clear simply from the general picture formed by the individual statements and conduct. The fact that these elements might appear to be subordinate to a varying number of innocuous circumstances said nothing in itself about their significance.", "31. The Supreme Court of the United States considered the problem of intimidation in Virginia v. Black, 538 US 343 (2003). A Virginia statute makes it a felony “for any person ..., with the intent of intimidating any person or group ..., to burn a cross on the property of another, a highway or other public place,” and specifies that “[a] ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group.”", "The Supreme Court held that burning a cross in the United States was inextricably intertwined with the history of the Ku Klux Klan. The Klan had often used cross burnings as a tool of intimidation and a threat of impending violence. To this day, regardless of whether the message was a political one or was also meant to intimidate, the burning of a cross was a “symbol of hate.” While cross burning did not inevitably convey a message of intimidation, often the cross burner intended that the recipients of the message should fear for their lives. The First Amendment of the Constitution of the United States permitted a State to ban “true threats ”, which encompassed those statements where the speaker meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protected individuals from the fear of violence and the disruption that fear engendered, as well as from the possibility that the threatened violence would occur. Intimidation in the constitutionally proscribable sense of the word was a type of true threat, where a speaker directed a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The First Amendment permitted Virginia to outlaw cross burnings done with the intent to intimidate, because burning a cross was a particularly virulent form of intimidation.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "32. The applicant complained that the dissolution of the Association which he chaired amounted to a violation of his right to freedom of association as guaranteed by Article 11 of the Convention, which reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "The Government contested that argument.", "A. Admissibility", "33. In the Government ’ s view, the application should be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention in the light of Article 17, because the Association provided an institutional framework for expressing racial hatred against Jewish and Roma citizens. They drew attention to the fact that international human rights monitoring bodies (such as the Advisory Committee of the Framework Convention for the Protection of National Minorities and the European Commission against Racism and Intolerance (ECRI), see paragraphs 2 6 - 28 above) had also raised concerns about the threatening effect of the uniform, insignia and flags used in the Movement ’ s demonstrations.", "34. The Government referred to the case-law of the Convention institutions, including the Court ’ s decision in Garaudy v. France ( ( dec. ), no. 65831/01, ECHR 2003-IX). They pointed out that, where the right to freedom of expression had been relied on by applicants to justify the publication of texts that infringed the very spirit of the Convention and the essential values of democracy, the European Commission of Human Rights had had recourse to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible (examples included Glimmerveen and Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, Decisions and Reports (DR) 18, p. 187, and Marais v. France, no. 31159/96, Commission decision of 24 June 1996, DR 86 -B, p. 184). In the Government ’ s view, the Court had subsequently confirmed that approach ( they referred to Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports of Judgments and Decisions 1998 - VII). Moreover, they pointed out that, in a case concerning Article 11 ( W.P. and Others v. Poland ( dec. ), no. 42264/98, ECHR 2004 - VII), the Court had observed that “the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention”. Similar conclusions had been reached in the cases of Norwood v. the United Kingdom ( ( dec. ), no. 23131/03, ECHR 2004 - XI), and Witzsch v. Germany ( ( dec. ), no. 7485/03, 13 December 2005 ); the Government referred by contrast to Vajnai v. Hungary ( no. 33629/06, § 25, ECHR 2008 ).", "35. The applicant argued in reply that the activities of the Association did not constitute abuse of the right to freedom of expression and association, their objective having been the restoration of the rule of law by protecting citizens from criminals. The Association had not been involved in any activity aimed at the destruction of any of the rights and freedoms set forth in the Convention.", "36. The Court observes at the outset that, unlike the cases cited by the Government involving the right to freedom of expression, the present application concerns the applicant ’ s right to freedom of association, and indeed a quite serious restriction on it, resulting in the termination of the Association ’ s legal existence as such. Therefore, the present application is to be distinguished from those relied on by the Government. In respect of the latter the Court observes that, particularly in Garaudy and in Lehideux and Isorni ( both cited above), the justification of Nazi-like politics was at stake. Consequently, the finding of an abuse under Article 17 lay in the fact that Article 10 had been relied on by groups with totalitarian motives.", "37. In the instant case, however, it has not been argued by the Government that the applicant expressed contempt for the victims of a totalitarian regime (contrast Witzsch, cited above) or that he belonged to a group with totalitarian ambitions. Nor does the information contained in the case file support such a conclusion. The applicant was, at the material time, the chairman of a registered association. He complains about the dissolution of that association together with that of a movement which, in the domestic courts ’ view, constituted an entity within that association, essentially on account of a demonstration which had not been declared unlawful at the domestic level and did not lead to any act of violence. In these circumstances, the Court cannot conclude that the Association ’ s activities were intended to justify or propagate an ideology of oppression serving “totalitarian groups”.", "38. Those activities, whose compatibility with Article 11 of the Convention will be the subject matter of a review on the merits (compare and contrast Féret v. Belgium, no. 15615/07, § 52, 16 July 2009), do not reveal prima facie any act aimed at the destruction of any of the rights and freedoms set forth in the Convention (see Sidiropoulos and Others v. Greece, 10 July 1998, § 29, Reports 1998 ‑ IV) or any prima facie intention on the applicant ’ s part to publicly defend or disseminate propaganda in support of totalitarian views (see Vajnai, cited above, §§ 24 ‑ 26). Only when the above-mentioned review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 96, ECHR 2003 ‑ II).", "39. It follows that, for the Court, the application does not constitute an abuse of the right of petition for the purposes of Article 17 of the Convention. Therefore, it is not incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a ) The Government", "40. The Government maintained that the Movement had not had a distinct legal status but had been a unit of the Association created, organised and financed by the latter. Its members had acted in the interests and under the guidance of the Association and paid their membership fees to it. The fact that the Association ’ s charter did not clarify its internal structure could not lead to the conclusion that the Movement had not been de jure part of the Association. However, even assuming that the Movement had been a distinct entity de jure, its de facto links to the Association justified the finding that the Association had overstepped its freedom of expression on account of the Movement ’ s operation. Therefore, the Association chaired by the applicant had not been dissolved because of the acts of a distinct entity but because of its own activities.", "41. Moreover, the Government were of the opinion that there had been no interference with the applicant ’ s freedom of association, since that freedom did not cover the right to associate in order to disseminate racist propaganda. However, even if there had been interference, it had been prescribed by law and served the legitimate aims of protecting public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others.", "42. Furthermore, the interference had been necessary in a democratic society, given the racist and anti-Semitic content of the demonstrations staged by the Movement and its paramilitary rituals, which were intimidating and traumatising, promoted segregation, increased social tension and provoked violence. As to proportionality, dissolution was an appropriate sanction for the propagation of racial discrimination and segregation. It was not even the most severe sanction available, since criminal sanctions could be invoked as well as an ultima ratio against the individuals involved who were responsible for the most serious expressions of racial hatred, inciting others to violence.", "( b ) The applicant", "43. At the outset the applicant stressed that, contrary to the findings of the domestic courts, the impugned actions of the Movement could not be imputed to the dissolved Association. He disputed that the Movement had constituted an integral part of the Association, since the two entities had functioned separately and independently, albeit in cooperation. He also emphasised that none of the Association ’ s members had participated in the Movement.", "44. The applicant contested the Government ’ s argument that the dissolution of the Association had pursued a legitimate aim in the interests of national security or public safety, that is, for the prevention of disorder and crime and the protection of the rights and freedoms of others within the meaning of Article 11 § 2 of the Convention. In his view, the courts had failed to establish any instances of actual disorder or any violation of the rights of others. He stressed that the domestic decisions had referred to a merely hypothetical danger whose prevention could not be seen as a legitimate aim under the Convention.", "45. Furthermore, the applicant alleged that, even assuming that the interference with the rights enshrined under Article 11 of the Convention had been lawful, the dissolution of the association had been neither necessary nor proportionate to the aims pursued. He noted that any interference by the public authorities with the exercise of the right of freedom of association had to be in proportion to the seriousness of the impugned conduct; thus, the sanction pronounced by the domestic courts had been excessively severe. Under the Court ’ s case-law, dissolution was reserved for situations in which the activities of an association seriously endangered the very essence of the democratic system; neither the Association ’ s nor the Movement ’ s activities had sought or had such an effect. In any event, the relevant domestic law did not provide for any sanction other than dissolution in respect of the allegedly unlawful activities of an association, a fact which in itself excluded all proportionality.", "46. The applicant also pointed out that the exceptions set out in Article 11 § 2 were to be construed narrowly : only convincing and compelling reasons could justify restrictions on freedom of association. However, in the present case, the domestic courts had not adduced sufficient and relevant reasons for the restriction, since they had failed to demonstrate how the activities of the Association were capable of provoking conflicts or either supporting or promoting violence and the destruction of democracy. Indeed, the Association ’ s activities had merely been aimed at enabling the discussion of unresolved social problems such as the security of vulnerable people and the extraordinarily high crime rate.", "47. The applicant further drew attention to the Court ’ s case-law considering Article 11 in the light of Article 10. In that context he conceded that the ideas expressed by the Movement might be offensive or shocking. Nevertheless, they did not amount to incitement to hatred or intolerance, and were thus compatible with the principles of pluralism and tolerance within a democratic society.", "( c ) The third party", "48. The European Roma Rights Centre submitted that the freedoms guaranteed under Article 11 of the Convention could be restricted in order to protect the rights and freedoms of minority communities. Making reference, inter alia, to the relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, it argued that organisations which attempted to justify or promote racial hatred and discrimination in any form did not come within the scope of the protection provided by Article 11. The third party further drew attention to the fact that minorities, and in particular the Roma, enjoyed special protection under Article 14 of the Convention, and referred to the emerging international consensus amongst Contracting States of the Council of Europe towards recognising an obligation to protect their security.", "2. The Court ’ s assessment", "( a ) Whether there was interference", "49. The Court notes that the Association chaired by the applicant was dissolved and that the effects of that measure extended to the Movement (see paragraph 15 above). It therefore considers that there was interference with the applicant ’ s rights guaranteed under Article 11 of the Convention.", "( b ) Whether the interference was justified", "50. Such interference will constitute a violation of Article 11 unless it was prescribed by law, pursued one or more legitimate aims for the purposes of Article 11 § 2 and was necessary in a democratic society to achieve those aims.", "( i ) “Prescribed by law”", "51. The Court observes that the Association, and consequently the Movement, was dissolved under section 16(2) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 above), including the reference therein to section 2(2) (“prejudice the rights and liberties of others”).", "It further takes note of the parties ’ diverging arguments as to whether the domestic court decisions lawfully included the dissolution of the Movement in ordering the Association ’ s disbandment.", "In this connection the Court notes that, in reply to the prosecution authorities ’ factual observations (see in detail in paragraph 11 above), the Budapest Court of Appeal and the Supreme Court held (see paragraphs 15 ‑ 16 above) that the Movement had to be regarded, as a matter of interpretation of the domestic law on associations, as an entity operating within the Association rather than independently. Those courts observed that the principal activity of the Association was the founding, operation, guidance and financing of the Movement.", "The Court finds no particular element in the case file or the parties ’ submissions which would render this application of the law arbitrary, the national authorities being better positioned to provide an interpretation of the national law and to assess evidence. In view of the fact that the creation of the Movement was a project of the Association, that the Movement and the Association shared a bank account, that candidates for membership of the Movement were assessed by the Association and that the former ’ s uniform could be bought from the latter, the Court does not find the position of those courts unreasonable.", "Consequently, the Court is satisfied that the dissolution of the Association on account of the actions of the Movement was “prescribed by law”, given the domestic courts ’ findings as to their relationship.", "( ii ) Legitimate aim", "52. The Court considers that the impugned measure can be seen as pursuing the aims of public safety, the prevention of disorder and the protection of the rights of others, all of which are legitimate for the purposes of Article 11 § 2 of the Convention, notwithstanding the applicant ’ s allegation that the domestic courts had not demonstrated the existence of any actual instances of disorder or violation of the rights of others (see paragraph 44 above).", "It remains to be ascertained whether the impugned measure was necessary in a democratic society.", "( iii ) Necessary in a democratic society", "( α ) General principles", "53. The general principles articulated in the Court ’ s case-law in this sphere are summarised in the case of United Communist Party of Turkey and Others v. Turkey (30 January 1998, Reports 1998 - I) as follows.", "“42. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (see, among other authorities, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 30, § 64).", "43. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy ...", "As the Court has said many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, the Vogt judgment cited above, p. 25, § 52). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention.", "...", "45. Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75).", "...", "In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘ necessary in a democratic society ’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘ democratic society ’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.", "...", "46. Consequently, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties ’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts. The Court has already held that such scrutiny was necessary in a case concerning a Member of Parliament who had been convicted of proffering insults (see the Castells judgment cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future.", "47. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 31).”", "54. Further relevant principles are contained in the judgment in Refah Partisi (the Welfare Party) and Others (cited above), as follows:", "“( γ ) The possibility of imposing restrictions, and rigorous European supervision", "9 6. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State ’ s institutions, of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system. For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11 – a matter which the Court considers below. ...", "...", "98. ... [A] political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47).", "99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy ..., no one must be authorised to rely on the Convention ’ s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany ( dec. ), no. 39793/98, ECHR 2001-XII).", "In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.", "...", "( δ ) Imputability to a political party of the acts and speeches of its members", "101. The Court further considers that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. That is why the Court has always pointed out that a party ’ s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party ’ s leaders and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions ...", "( ε ) The appropriate timing for dissolution", "102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see the Chamber ’ s judgment, § 81).", "103. The Court takes the view that such a power of preventive intervention on the State ’ s part is also consistent with Contracting Parties ’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non ‑ State entities ... A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d ’ être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy.", "( ζ ) Overall examination", "104. In the light of the above considerations, the Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, p. 1258, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’.", "105. The overall examination of the above points that the Court must conduct also has to take account of the historical context in which the dissolution ... took place ... in the country concerned to ensure the proper functioning of ‘ democratic society ’ (see, mutatis mutandis, Petersen, cited above).”", "55. The Court ’ s judgment in Herri Batasuna and Batasuna v. Spain (nos. 25803/04 and 25817/04, ECHR 2009) contains further relevant passages:", "“79. ... It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds ...", "...", "81. ... [A] State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see Refah Partisi (the Welfare Party) and Others, cited above, § 102).", "...", "83. ... [The] Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently and reasonably imminent, and (ii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’ ...”", "( β ) Application of those principles to the present case", "56. The Court points out at the outset that, although the right to create and operate political parties falls within the protection of Article 11 of the Convention, as does the right to create and operate social organisations, these two types of entity differ from each other as regards, amongst other elements, the role which they play in the functioning of a democratic society, since many social organisations contribute to that functioning only in an indirect manner.", "In several member States of the Council of Europe, political parties enjoy a special legal status which facilitates their participation in politics in general and in elections in particular; they also have specific legally endorsed functions in the electoral process and in the formation of public policies and public opinion.", "Social organisations do not normally enjoy such legal privileges and have, in principle, fewer opportunities to influence political decision ‑ making. Many of them do not participate in public political life, although there is no strict separation between the various forms of associations in this respect, and their actual political relevance can be determined only on a case-by-case basis.", "Social movements may play an important role in the shaping of politics and policies, but compared with political parties such organisations usually have fewer legally privileged opportunities to influence the political system. However, given the actual political impact which social organisations and movements have, when any danger to democracy is being assessed, regard must be had to their influence.", "57. In the Court ’ s view, the State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. One such value is the coexistence of members of society free from racial segregation, without which a democratic society is inconceivable. The State cannot be required to wait, before intervening, until a political movement takes action to undermine democracy or has recourse to violence. Even if that movement has not made an attempt to seize power and the risk of its policy to democracy is not imminent, the State is entitled to act preventively if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy (see Refah Partisi (the Welfare Party) and Others, cited above, § 102).", "58. In assessing the necessity and proportionality of the measure complained of, the Court notes that the instant case concerns the dissolution of an association and a movement rather than that of a political party. The responsibilities originating in the particular constitutional role and legal privileges that apply to political parties in many member States of the Council of Europe may apply in the case of social organisations only to the extent that the latter do actually have a comparable degree of political influence. On the other hand, the Court is aware that the termination of the legal existence of the Association and the Movement was a sanction of considerable gravity, because it equated to stripping these groups of the legal, financial and practical advantages normally secured to registered associations in most jurisdictions (see paragraph 18 above). Therefore, any such measure must be supported by relevant and sufficient reasons, just as in the case of dissolution of a political party, although in the case of an association, given its more limited opportunities to exercise national influence, the justification for preventive restrictive measures may legitimately be less compelling than in the case of a political party. In view of the difference in the importance for a democracy between a political party and a non-political association, only the former deserves the most rigorous scrutiny of the necessity of a restriction on the right to associate (compare, per analogiam, the level of protection granted to political speech and to speech which does not concern matters of public interest, in Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I ). This distinction has to be applied with sufficient flexibility. As regards associations with political aims and influence, the level of scrutiny will depend on the actual nature and functions of the association in view of the circumstances of the case.", "59. The Court observes that the Movement about whose dissolution the applicant complains was created by the Association with the stated purpose of “defending a physically, spiritually and intellectually defenceless Hungary ” (see paragraph 8 above). The Movement ’ s subsequent activities involved rallies and demonstrations, the members sporting uniforms and parading in military-like formations. These events were held in various parts of the country, and in particular in villages with large Roma populations such as Tatárszentgyörgy; calls were also made for the defence of “ethnic Hungarians” against so-called “Gypsy criminality” (see paragraph 10 above). In reaction to this sequence of events, the public prosecutor brought an action against the Movement and the Association, the essence of which was that the defendants ’ activities amounted to racist intimidation of citizens of Roma origin (see paragraph 11 above).", "60. In the ensuing judicial proceedings the courts assessed the links between the two defendants and found convincing evidence that they did not constitute separate entities. In view of the arguments considered in this context, the Court cannot find this conclusion unreasonable or arbitrary (see paragraphs 11, 13, 15, 16 and 51 above).", "61. The case resulted in the dissolution of both the Association and the Movement. In essence, the domestic courts found that even though no actual violence had occurred as a result of the defendants ’ activities, they were liable for having created an anti-Roma atmosphere through verbal and visual demonstrations of power. This amounted to a breach of the relevant law on associations, ran counter to human dignity and prejudiced the rights of others, that is, of Roma citizens. In the latter connection the courts observed that the central theme of the Tatárszentgyörgy rally was “Gypsy criminality”, a racist concept. The courts paid particular attention to the fact that the impugned rallies involved military- style uniforms, commands, salutes and formations as well as armbands reminiscent of Arrow Cross symbols. On appeal, this reasoning was extended to include considerations to the effect that the populations of the villages targeted by the Movement were a “captive audience”, because those citizens had not been in a position to avoid the extreme and exclusionary views conveyed by the Movement ’ s actions. In the courts ’ view, the latter amounted to creating a public menace by generating social tension and bringing about an atmosphere of impending violence (see paragraphs 15 and 16 above).", "62. The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Lehideux and Isorni, cited above, § 50 ). The Court ’ s task is merely to review the decisions delivered by the authorities within their margin of appreciation. In so doing, it must satisfy itself that they based their decisions on an acceptable assessment of the relevant facts (see Incal v. Turkey, 9 June 1998, § 48, Reports 1998 ‑ IV). In the circumstances of the present case, the Court cannot find the conclusions of the Hungarian courts unreasonable or arbitrary and it shares the view of those courts that the activities of and the ideas expressed by the Movement relied on a race-based comparison between the Roma minority and the ethnic Hungarian majority (see paragraph 13 above).", "63. The Court has previously held, in the context of Article 10, that ideas or conduct cannot be excluded from the protection provided by the Convention merely because they are capable of creating a feeling of unease in groups of citizens or because some may perceive them as disrespectful (see Vajnai, cited above, § 57). It is of the view that similar considerations must apply to freedom of association in so far as it concerns the association of individuals in order to further ideas which are less than widely accepted, or even shocking or disturbing. Indeed, unless the association in question can reasonably be regarded as a breeding ground for violence or as incarnating a negation of democratic principles, radical measures restricting such fundamental rights as that of freedom of association – in the name of protecting democracy – are difficult to reconcile with the spirit of the Convention, which is aimed at guaranteeing the articulation of political views ( even those which are difficult to accept for the authorities or a larger group of citizens and contest the established order of society ) through all peaceful and lawful means, including association and assemblies (see, mutatis mutandis, Güneri and Others v. Turkey, nos. 42853/98, 43609/98 and 44291/98, § 76, 12 July 2005).", "64. That being so, it has to be ascertained whether in this particular case the actions of the Association and the Movement remained within the limits of legal and peaceful activities. In this connection the Court cannot overlook the fact that their activists staged several rallies, such as the event in Tatárszentgyörgy which involved some 200 persons in a village of approximately 1,800 inhabitants. It is true that no actual violence occurred, although it is not possible to determine with hindsight whether or not this was because of the presence of the police. The activists were marching in the village wearing military- style uniforms and threatening armbands, in a military-like formation, giving salutes and issuing commands of the same kind.", "65. In the Court ’ s view, such a rally was capable of conveying the message to those present that its organisers had the intention and the capacity to have recourse to a paramilitary organisation to achieve their aims, whatever they might be. The paramilitary formation was reminiscent of the Hungarian Nazi (Arrow Cross) movement, which was the backbone of the regime that was responsible, amongst other things, for the mass extermination of Roma in Hungary. Having regard to the fact that there were established organisational links between the Movement whose activists were present and the Association, the Court also finds that the intimidating effect of the rallies in Tatárszentgyörgy and elsewhere must have gained momentum – and indeed, have been multiplied – by virtue of the fact that the rallies were backed by a registered association benefiting from legal recognition.", "66. The Court considers that the demonstration by political protagonists of their ability and willingness to organise a paramilitary force goes beyond the use of peaceful and lawful means of articulating political views. In the light of historical experience – such as that of Hungary in the wake of the era of Arrow Cross power – the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of a racial minority, especially when they are in their homes and as such constitute a captive audience. In the Court ’ s view, this exceeds the limits of the scope of protection secured by the Convention in relation to expression (see Vajnai, cited above ) or assemblies and amounts to intimidation, which is – in the words of the United States Supreme Court ’ s judgment in Virginia v. Black (see paragraph 31 above) – a “ true threat ”. The State is therefore entitled to protect the right of the members of the target groups to live without intimidation. This is particularly true because they were singled out on a racial basis and were intimidated on account of their belonging to an ethnic group. In the Court ’ s view, a paramilitary march goes beyond the mere expression of a disturbing or offensive idea, since the message is accompanied by the physical presence of a threatening group of organised activists. Where the expression of ideas is accompanied by a form of conduct, the Court considers that the level of protection generally granted to freedom of expression may be reduced in the light of important public-order interests related to that conduct. If the conduct associated with the expression of ideas is intimidating or threatening or interferes with the free exercise or enjoyment by another of any Convention right or privilege on account of that person ’ s race, these considerations cannot be disregarded even in the context of Articles 10 and 11.", "67. In the instant case the impugned activities quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, and the Court is not convinced by the applicant ’ s arguments that the intention of the dissolved entities was not the singling-out and intimidation of this vulnerable group (see Horváth and Kiss v. Hungary, no. 11146/11, § 102, 29 January 2013). In this connection the Court recognises the concerns of various international bodies (see paragraphs 26 - 28 above).", "68. As the Court has already pointed out (see paragraph 57 above), in such circumstances the authorities could not be required to await further developments before intervening to secure the protection of the rights of others, since the Movement had taken concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy.", "69. The Court considers that the intimidating character of the rallies in question is an overriding consideration, despite the fact that the actual assemblies were not banned by the authorities and no violent act or crime occurred. What matters is that the repeated organisation of the rallies (see paragraph 15 above) was capable of intimidating others and therefore of affecting their rights, especially in view of the location of the parades. With regard to the dissolution of the Association, it is immaterial that the demonstrations, taken in isolation, were not illegal, and the Court is not called upon in the present case to determine to what extent the demonstrations amounted to exercise of the Convention right of assembly. It may be only in the light of the actual conduct of such demonstrations that the real nature and goals of an association become apparent. In the Court ’ s view, organising a series of rallies allegedly in order to keep “Gypsy criminality” at bay by means of paramilitary parading can be regarded as implementing a policy of racial segregation. In fact, the intimidating marches can be seen as constituting the first steps in the realisation of a certain vision of “law and order” which is racist in essence.", "The Court would point out in this context that if the right to freedom of assembly is repeatedly exercised by way of intimidating marches involving large groups, the State is entitled to take measures restricting the related right to freedom of association in so far as it is necessary to avert the danger which such large-scale intimidation represents for the functioning of democracy (see paragraph 54 above). Large-scale, coordinated intimidation – related to the advocacy of racially motivated policies which are incompatible with the fundamental values of democracy – may justify State interference with freedom of association, even within the narrow margin of appreciation applicable in the present case. The reason for this relates to the negative consequences which such intimidation has on the political will of the people. While the incidental advocacy of anti-democratic ideas is not sufficient in itself to justify banning a political party on the ground of compelling necessity (see paragraph 53 above), and even less so in the case of an association which cannot make use of the special status granted to political parties, the circumstances taken overall, and in particular any coordinated and planned actions, may constitute sufficient and relevant reasons for such a measure, especially where other potential forms of expression of otherwise shocking ideas are not directly affected (see paragraph 71 in fine below).", "70. In view of the above considerations, the Court is convinced that the arguments adduced by the national authorities were relevant and sufficient to demonstrate that the impugned measure corresponded to a pressing social need.", "71. The Court is aware that the disbanding of the Movement and the Association represented quite a drastic measure. However, it is satisfied that the authorities nevertheless chose the least intrusive – indeed, the only reasonable – course of action to deal with the issue. Moreover, it is to be noted that the domestic authorities had previously drawn the attention of the Association to the unlawful nature of the Movement ’ s activities, a move which resulted only in formal compliance (see paragraph 9 above), to the extent that further rallies took place during the ongoing proceedings (see paragraph 15 above – compare S.H. and Others v. Austria [GC], no. 57813/00, § 84, ECHR 2011). In the Court ’ s view, the threat to the rights of others represented by the Movement ’ s rallies could be effectively eliminated only by removing the organisational back - up of the Movement provided by the Association. Had the authorities acquiesced in the continued activities of the Movement and the Association by upholding their legal existence in the privileged form of an entity under the law on associations, the general public might have perceived this as legitimisation by the State of this menace. This would have enabled the Association, benefiting from the prerogatives of a legally registered entity, to continue to support the Movement, and the State would thereby have indirectly facilitated the orchestration of its campaign of rallies. Furthermore, the Court notes that no additional sanction was imposed on the Association or the Movement, or on their members, who were in no way prevented from continuing political activities in other forms (see, a fortiori, Refah Partisi (the Welfare Party) and Others, cited above, §§ 133-34). In these circumstances, the Court finds that the measure complained of was not disproportionate to the legitimate aims pursued.", "72. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 11 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1956 and lives in Madrid.", "8. The applicant and M.D., both members of the Roma community, were married in November 1971 according to their community ’ s own rites. The marriage was solemnised in accordance with Roma customs and cultural traditions and was recognised by that community. For the Roma community, a marriage solemnised according to its customs gives rise to the usual social effects, to public recognition, to an obligation to live together and to all other rights and duties that are inherent in the institution of marriage.", "9. The applicant had six children, who were registered in the family record book issued to the couple by the Spanish civil registration authorities ( Registro civil ) on 11 August 1983.", "10. On 14 October 1986 the applicant and her family were granted first-category large-family status, under the number 28/2220/8, pursuant to the Large - Family Protection Act (Law no. 25/1971 of 19 June 1971 ).", "11. On 24 December 2000 the applicant ’ s husband died. He was a builder and at the time of his death had been working and paying social security contributions for nineteen years, three months and eight days, supporting his wife ( registered as such ) and his six children as his dependants. He had been issued with a social security benefit card, stamped by Agency no. 7 of Madrid of the National Institute of Social Security ( Instituto Nacional de la Seguridad Social – “ the INSS ” ).", "12. The applicant applied for a survivor ’ s pension. In a decision of 27 March 2001, the INSS refused to grant her one on the following ground :", "“[ she was] not and [had] never been the wife of the deceased prior to the date of death, as required by paragraph 2 of the seventh amendment to Law no. 30/1981 of 7 July 1981 ( in force at the material time ), combined with section 174 of the General Social Security Act [ Ley General de la Seguridad Social – “ the LGSS” ] approved by Royal Legislative Decree no. 1/1994 of 20 June 1994. ”", "13. That decision was confirmed by a decision of the same Institute dated 10 May 2001.", "14. The applicant filed a claim with the Labour Court. In a judgment dated 30 May 2002 of Labour Court no. 12 of Madrid, she was granted an entitlement to receive a survivor ’ s pension with a base rate of 903. 29 euros per month, her Roma marriage thus being recognised as having civil effects. The relevant part of the judgment read as follows :", "“ ... In our country the Roma minority ( etnia gitana ) has been present since time immemorial and it is known that this minority solemnises marriage according to rites and traditions that are legally binding on the parties. These marriages are not regarded as being contrary to morality or public order and are recognised socially.", "... Article 61 of the Civil Code provides that marriage has civil effects from the time it is solemnised but that it must be registered in the Civil Register if those effects are to be recognised. Roma marriages are not registered in the Civil Register because they have not been regarded by the State as a feature of the ethnic culture which has existed in our country for centuries.", "... The argument relied upon against the applicant in order to deny her a survivor ’ s pension is solely the non-recognition of the civil effects of her marriage to the insured person ( a working man of Spanish nationality with rights and obligations governed by domestic and European Community law ), notwithstanding the fact that Spain has ratified the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966.", "... The lack of regulation of the recognition of the civil effects of Roma marriage cannot hinder the protective action to which the State has committed itself by laying down social security norms.", "... Directive 2000/43/ EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin is applicable to the present case, where the denied benefit derives from the employment relationship of the insured person, who died from natural causes while he was still working. ... Article 4 § 1 of the Civil Code states [that] ‘ norms are applied mutatis mutandis where they do not specifically contemplate the case in question but a comparable one which can be regarded as having a similar object ’. Such application mutatis mutandis is applicable to the present case.", "...", "The applicant ’ s marriage is not registered in the Civil Register, although that is not expressly ruled out. It is not recognised as having civil effects or as giving rise to the enjoyment of social protection by the survivor on the death of either spouse. Roma marriage is not covered by Spanish legislation, in spite of that ethnic minority ’ s social and cultural roots in our country. However, as noted above, marriages solemnised according to certain religious rites and customs that were, until quite recently, foreign to our society, [ do ] have a legal framework. These are therefore similar cases, albeit that it is not a religion that is concerned here. They have a similar object (community of cultures and customs present within the Spanish State ). The refusal by the INSS to grant the applicant a survivor ’ s pension, the sole obstacle being that the marriage between the widow and the deceased is not recognised, reveals discriminatory treatment on grounds of ethnic affiliation in breach of Article 14 of the Spanish Constitution and Directive 2000/43/ EC. ”", "15. The INSS appealed. In a judgment of 7 November 2002, the Madrid Higher Court of Justice quashed the impugned judgment, giving the following reasons :", "“... It should be noted that the principle of equality and non-discrimination is based on the idea that equal situations should be treated equally and on [ the idea ] that equal treatment applied to situations which are not equal constitutes injustice. This also means that the law applicable to all should not be departed from in such a manner [ as to enable ] the creation of more exceptions than those that are expressly contemplated in that law.", "... A distinction must be made between the legislation that is in force and is applicable at all times and what may be considered desirable by a given sector of society.", "... Under the provisions of Article 49 of the Civil Code, every Spanish national ( such as the applicant and the deceased ) may opt for a civil marriage before a magistrate, a mayor or a public official designated [ by that Code], or for a religious marriage as provided for by law.", "... In accordance with the foregoing, if a civil marriage is to be solemnised through regulated formalities, that must also be the case for a religious marriage, whose formalities will be those of the religious denomination – such formalities being laid down by the State, or otherwise accepted by its legislation. [ It will be in such circumstances ] that the marriage produces civil effects.", "... A marriage solemnised solely and exclusively according to Roma rites is not covered by any of the above-mentioned cases, as even though an ethnic group is concerned, the norms or formalities of that group do not produce any legal effect outside its own environment and are not enshrined in the law that provides for the impugned pension. [ Such a marriage ], which is certainly meaningful and enjoys social recognition in the environment concerned, does not exclude, and currently does not supersede, the law that is in force and is applicable to the present case, in so far as it concerns a marriage between Spanish nationals that took place in Spain. An ethnic group, moreover, is merely a group which is differentiated on grounds of race ... and a rite is merely a custom or ceremony.", "... As far as customs are concerned, under Article 1 § 3 of the Civil Code they only apply in the absence of an applicable law. ... The morality of the rite or its conformity with public order are not called into question, but only its capacity to produce erga omnes obligations, whereas in Spain there are statutory norms governing marriage. The answer, clearly, can only be in the negative.", "...", "A marriage, in order to produce civil effects, can only be one that is solemnised civilly or religiously according to the terms set out above. Roma marriage does not correspond, in the current framework of our law, to the nature of the marriages referred to above. Section 174 of the LGSS requires that a person be the spouse of the deceased in order to benefit from the survivor ’ s pension, and the notion of spouse has been interpreted strictly according to an established constitutional and ordinary case-law ( in spite of dissenting views), according to which a couple living together de facto as husband and wife and many others who, in reality, are not married under the applicable law, are excluded from the benefit of that pension. ”", "16. The applicant lodged an amparo appeal with the Constitutional Court, relying on the principle of non-discrimination in terms of race and social condition. In a judgment of 16 April 2007, the Constitutional Court dismissed the appeal as follows:", "“ ... The court, in a plenary sitting, reiterated ... the reasons for concluding that to limit the survivor ’ s pension to cases of institutionalised cohabitation as husband and wife, excluding other forms of partnership or cohabitation, did not constitute discrimination on social grounds. In this connection, it was submitted that the legislature retained a significant degree of discretion in determining the configuration of the social security system and in assessing the socio -economic circumstances in a context of the administration of limited resources with a view to addressing a large number of social needs, bearing in mind that an entitlement to a survivor ’ s pension was not strictly conditional, in a contribution-related system, on an actual situation of necessity or economic dependence, or even unfitness for work, in the case of the surviving spouse. In any event, the plenary court also commented on the fact that the extension, by the legislature, of the survivor ’ s pension to other forms of partnership was not prohibited by Article 14 of the Spanish Constitution either.", "...", "A supposed discrimination on social grounds must be rejected for the reasons given above. ... No violation of Article 14 arises from the fact of limiting the survivor ’ s pension in practice to married couples.", "Similarly, no discriminatory treatment, whether direct or indirect, for racial or ethnic reasons, arises from the fact that the applicant ’ s partnership, in accordance with the rites and customs of the Roma community, has not been assimilated with marriage for the purposes of the said pension, and that the same legal rules as those applying to ‘ more uxorio ’ cohabitation have been applied to it.", "Firstly, ... the court reiterated that ‘ discrimination by absence of differentiation ’ did not arise from Article 14 of the Spanish Constitution, as the principle of equality did not afford a right to [differentiated ] treatment, nor did it protect the lack of distinction between different cases. There was thus no individual right to differentiated normative treatment. ...", "Secondly, the statutory requirement of a marital relationship as a condition for the enjoyment of a survivor ’ s pension, and the interpretation arising from the impugned decision, taking into account the marital relationship that stems from the legally recognised forms of access to marriage, and not any other forms of cohabitation, in particular partnerships according to Roma habits and customs – such requirement not being in any way related to racial or ethnic considerations, but to the fact [ for the interested parties ] of having freely chosen not to formalise marriage by recognised statutory, civil or religious procedures – never takes into consideration a person ’ s race or the customs of a given ethnic group to the detriment of others. As a result, there is no form of covert discrimination here against the Roma ethnic group. ...", "Lastly, the court must reject the idea that the recognition of the civil effects of a marital relationship created by certain specific religious rites, but not one that has been solemnised according to Roma rites and customs, and the refusal of the judicial body to accept the latter mutatis mutandis [...], may entail directly or indirectly, the alleged ethnic discrimination. ...", "To sum up, in view of the fact that the law establishes a general possibility – neutral from a racial and ethnic point of view – of marrying in the civil form, and that the legislature, in deciding to attach statutory effects to other forms of accession to a marital relationship, did so exclusively on the basis of religious considerations and thus without reference to any ethnic grounds, no discriminatory treatment with an ethnic connotation, as alleged, may be found. ”", "17. A dissenting opinion was appended to the judgment. It referred to judgment no. 199/2004, in which the Constitutional Court had found a violation of the right to equality in a case concerning the widower of a civil servant, after finding that a marital relationship existed but not a marriage, since it had not been registered civilly, the parties having expressly refused such registration of their marital relationship which had been solemnised in a religious form.", "18. For the dissenting judge, that case of a surviving spouse from an unregistered religious marriage was comparable to that of the applicant, in that the two claimants had applied for a survivor ’ s pension on the basis of what they considered to be a marital relationship, albeit that it had not been registered civilly.", "19. Furthermore, the dissenting judge pointed out that, even though Spain was a party to the Framework Convention for the Protection of National Minorities, which it signed at Strasbourg on 1 February 1995, the case-law of the Constitutional Court did not take into account the rites, practices or customs of a specific ethnic group, nor did it regard as valid and subject to constitutional protection the acts of individuals belonging to minorities who sought respect for their cultural traditions.", "20. According to the dissenting judge, the situation presented in this amparo appeal showed, for the first time, that the protection of minorities had a much broader constitutional significance than simply the response received by the applicant. The applicant should not have been obliged to take her case to a supranational body in order to obtain the protection claimed. In cases concerning the protection of ethnic minorities, the guarantee of equality required measures of positive discrimination in favour of the underprivileged minority, and respect, with the appropriate sensitivity, for the subjective value that a person belonging to such a minority accorded and required as regards respect for its traditions and the heritage of its cultural identity. The dissenting judge concluded as follows :", "“It is disproportionate for the Spanish State, which took into consideration the applicant and her Roma family by issuing them with a family record book, granting them large-family status, affording health- care assistance to her and her six children and collecting the corresponding contributions from her Roma husband for nineteen years, three months and eight days, now to refuse to recognise the Roma marriage when it comes to the survivor ’ s pension.”", "21. On 3 December 2008, under the third amendment of Law no. 40/2007 of 4 December 2007 pertaining to certain social security measures, the applicant was granted a survivor ’ s pension with effect from 1 January 2007, as the partner of M.D." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN LAW", "22. The relevant provisions of the Spanish Constitution are as follows :", "Article 14", "“ Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance. ”", "Article 16", "“1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law.", "2. No one shall be required to declare his ideological, religious or other beliefs.", "... ”", "Article 32 § 2", "“ 1. Men and women shall have the right to enter into a marriage with full legal equality.", "2. The law shall determine the forms of marriage, the requisite age and capacity for marriage, the rights and duties of the spouses, the grounds for separation and dissolution and the effects thereof. ”", "23. The relevant provisions of the Civil Code, as in force in 1971, read as follows:", "Article 42", "“The law recognises two forms of marriage : the canonical form and the civil form.", "Marriage shall be solemnised in the canonical form when at least one of the participants identifies with the Catholic faith.", "Civil marriage shall be authorised where it is established that neither of the parties identifies with the Catholic faith .”", "24. The provisions applicable to the present case of the Civil Registration Rules, as in force at the relevant time ( Decree no. 1138/1969 of 22 May 1969), read as follows:", "Article 245", "“Persons who have renounced the Catholic faith shall, as soon as possible, provide proof that they have given notice of such renunciation to the priest of their home parish.”", "Article 246", "“ ...", "2. In cases not provided for by the previous provision, proof of non-affiliation to the Catholic faith may be produced, either by a certificate of affiliation to another religious denomination, delivered by the competent minister or the authorised representative of the religious association in question, or in the form of an express declaration by the person concerned before the registrar. ”", "25. The relevant provisions of the Civil Code, in its current version, read as follows :", "Article 44", "“A man and a woman shall have the right to enter into marriage in accordance with the provisions of the present Code .”", "Article 49", "“Any Spanish national is entitled to marry in Spain or abroad :", "1. Before a magistrate, a mayor or a public servant designated by the present Code.", "2. In the religious form provided for by law.", "[ Any Spanish national ] may also marry abroad in accordance with the formalities required by the law in the place where the marriage is solemnised. ”", "26. The relevant provision of Law no. 30/1981 of 7 July 1981, amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of nullity, judicial separation and divorce, reads as follows:", "Tenth amendment", "“ ...", "2. [ As regards persons ] who have not been able to marry on account of the legislation currently in force but who have lived as [ a married couple], when the death of one of the partners has occurred before the entry into force of the present Law, the survivor will be entitled to the benefits provided for in the first paragraph of the present provision and to the corresponding pension in accordance with the following paragraph. ”", "27. Section 2 of the Large-Family Protection Act (Law no. 25/1971 of 19 June 1971 ) reads as follows:", "“ 1. A family shall be classified as large when, in addition to fulfilling the other conditions laid down herein, it is made up of :", "(a) the head of the household, his spouse and four or more children ... ”", "28. Section 174 of the Ley General de la Seguridad Social (“the LGSS ”) ( as in force at the material time ) read as follows:", "“ 1. The surviving spouse ... shall be entitled to a survivor ’ s pension.", "2. ... In the event of nullity of a marriage, the surviving spouse ’ s entitlement to the survivor ’ s pension shall be recognised in proportion to the period of his or her cohabitation with the insured person, provided he or she has not acted in bad faith and has not remarried ...”", "29. Section 174 of the LGSS, approved by Royal Legislative Decree no. 1/1994 of 20 June 1994, reads as follows:", "“ 1. A survivor ’ s pension shall be granted for life ... to the surviving spouse when, on the death of his or her spouse the latter had been working ... and had paid contributions for the statutory period ...", "2. In the event of judicial separation or divorce, a survivor ’ s pension shall be granted to a person who is or was a lawful spouse, provided in the case of divorce that he or she has not remarried, in proportion to the period of cohabitation with the deceased spouse and regardless of the causes of the judicial separation or divorce.", "In the event of nullity of a marriage, a survivor ’ s pension shall be granted to the surviving spouse provided that he or she has not acted in bad faith and has not remarried, in proportion to the period of his or her cohabitation with the insured person. ... ”", "30. Law no. 40/2007 of 4 December 2007 on social security measures, amending the LGSS, reads as follows:", "Third transitional amendment", "“Exceptionally, a survivor ’ s pension shall be granted where the death of the insured person occurred before the entry into force of the present Act, subject to fulfilment of the following conditions:", "(a) at the time of the death of the insured person, who was working and paying social security contributions as provided for by section 174 of the simplified text of the General Social Security Act, [ the survivor ] was unable to claim an entitlement to the survivor ’ s pension;", "( b ) the beneficiary and the insured person lived together continuously as unmarried partners ... for at least six years prior to the death;", "( c ) the insured person and the beneficiary had children together;", "( d ) the beneficiary has no recognised entitlement to receive a contributory pension from the social security;", "( e ) to have access to the pension [hereunder], the claim must be filed within a non-extendable period of twelve months following the entry into force of the present Act. The recognition of the pension entitlement will take effect from 1 January 2007, subject to the fulfilment of all the conditions provided for in the present provision. ”", "31. Various cooperation agreements have been entered into between the Government and religious denominations : agreement with the Holy See (Concordat of 1979), agreement with the Evangelical Federation under Law no. 24/1992 of 10 November 1992, agreement with the Islamic Commission under Law no. 26/1992 of 10 November 1992, and agreement with the Jewish Federation under Law no. 25/1992 of 10 November 1992. Marriages solemnised according to the rites of those religious denominations are therefore recognised by the Spanish State as constituting a valid form of expression of consent to marriage. They thus produce civil effects by virtue of agreements entered into with the State.", "32. The relevant case-law of the Constitutional Court is as follows:", "“ Constitutional Court judgments no. 260/1988 of 22 December 1988 and no. 155/1998 of 13 June 1998, among others, concerned entitlements to a survivor ’ s pension in cases where canonical marriage had not been possible because of the impossibility of divorce.", "Constitutional Court judgment no. 180/2001 of 17 September 2001 recognised the right to compensation for the death of a partner if a canonical marriage had not been possible on account of a conflict with freedom of conscience or religion ( before the legislative amendment of 1981).", "Constitutional Court judgment no. 199/2004 of 15 November 2004 concerned a survivor ’ s pension entitlement derived from a canonical marriage that did not fulfil the statutory conditions of form because the parties had voluntarily omitted to register it in the Civil Register. The Constitutional Court recognised in that case an entitlement for the widower to receive a survivor ’ s pension. ”", "33. The Council of Europe ’ s Framework Convention for the Protection of National Minorities, opened for signature on 1 February 1995, contains the following provisions in particular :", "Article 1", "“The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international cooperation.", "...”", "Article 4", "“ 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.", "2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.", "3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. ”", "Article 5", "“ 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.", "2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation. ”", "34. Spain signed the Convention on the day that it was opened for signature and ratified it on 1 September 1995. It came into force in respect of Spain on 1 February 1998.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "35. The applicant complained that the refusal to grant her a survivor ’ s pension, on the ground that her marriage solemnised according to the rites of the Roma minority to which she belonged had no civil effects, infringed the principle of non-discrimination recognised by Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The provisions in question read as follows :", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”", "A. Admissibility", "36. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The applicant", "37. The applicant observed that the Government had not explained why her situation had been regarded as a “ more uxorio ” cohabitation and not as a marriage which was null and void but believed in good faith to exist, and which might entitle her, as surviving spouse, to a survivor ’ s pension. She pointed out that there had been no reason for her to believe that the welfare entitlements she had enjoyed during her husband ’ s life would be withdrawn from her after his death.", "38. The applicant emphasised that, in other cases, the inexistence of a “legal” marriage had not precluded the granting of such a pension : under the General Social Security Act a pension entitlement was granted, in the event of the nullity of a marriage, to a spouse who had shown good faith. In addition, case-law afforded a pension entitlement to couples who believed in the existence of a marriage even though it was not registered civilly, to couples who were prevented from legally marrying because of the impossibility of divorce, or to couples who did not marry because it was against their beliefs.", "( b) The Government", "39. The Government contested that argument. They took the view that, the law applicable to the applicant being the same for all Spanish nationals, there had been no discrimination based on ethnic origin or any other reason and that the alleged difference in treatment could be explained by the fact that the applicant had not married M.D. but had had a more uxorio relationship with him.", "40. The Government emphasised that there was no obligation to treat in the same manner those who had complied with the statutory formalities and those who, without being prevented from doing so, had not complied with them. The statutory requirement that there had to be a legal marital relationship for a survivor ’ s pension entitlement to be granted did not constitute discrimination on racial or ethnic grounds. The refusal to grant the said pension to the applicant stemmed solely from her free and voluntary decision not to observe the statutory formalities of marriage, which were not based on the fact of belonging to a particular race, nor on the traditions, habits or customs of a particular ethnic group to the detriment of others. Those formalities did not therefore constitute direct or indirect discrimination against the Roma community.", "( c) The third party", "41. Unión Romaní pointed out that Roma marriage was no different to any other types of marriage. It explained that Roma marriage existed when a man and a woman expressed their intention to live together and their desire to found a family, which was the foundation of the Roma community. It took the view that it was disproportionate for the Spanish State, having issued the applicant and her family with a family record book, having granted them large-family status, having provided the applicant and her six children with health care and having collected her husband ’ s contributions for over nineteen years, now to disregard the validity of her Roma marriage when it came to the survivor ’ s pension.", "2. The applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "42. The Court reiterates that Article 14 of the Convention has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and of the Protocols thereto ( see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008 ). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles ( see, among many other authorities, Gaygusuz v. Austria, 16 September 1996, § 36, Reports of Judgments and Decisions 1996 ‑ IV; Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 ‑ IV; Koua Poirrez v. France, no. 40892/98, § 36, ECHR 2003 ‑ X; and Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009 ). The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide ( see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ).", "43. It should therefore be determined whether the applicant ’ s interest in receiving a survivor ’ s pension from the State falls “within the ambit” or “within the scope” of Article 1 of Protocol No. 1.", "44. The Court has previously held that all principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits ( see Andrejeva, cited above, § 77). Thus this provision does not, as such, guarantee the right to acquire property ( see Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004 ‑ IX ) or, as such, any entitlement to a pension of a given amount ( see, for example, Domalewski v. Poland ( dec. ), no. 34610/97, ECHR 1999 ‑ V, and Janković v. Croatia ( dec. ), no. 43440/98, ECHR 2000 ‑ X). In addition, Article 1 places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ( see Stec and Others ( dec. ), cited above, § 54).", "45. As the Court held in Stec and Others ( dec. ), ( cited above, § 55 ) :", "“ In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ... Although [Article 1 of] Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14. ”", "46. In view of the foregoing, since the applicant belongs to the Roma community and was the spouse of M.D., as had been recognised for certain purposes by the Spanish authorities but not for the survivor ’ s pension, the Court finds that the applicant ’ s proprietary interests fall within the ambit of Article 1 of Protocol No. 1 and the right guaranteed therein to the peaceful enjoyment of possessions, this being sufficient for Article 14 of the Convention to be engaged.", "3. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "(a) The Court ’ s case-law", "47. According to the Court ’ s established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. The “lack of objective and reasonable justification” means that the impugned difference in treatment does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised” ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175 and 196, ECHR 2007 ‑ IV, with further references ).", "48. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment ( see, among other authorities, Gaygusuz, § 42, and Thlimmenos, § 40, both cited above ). The scope of this margin will vary according to the circumstances, the subject matter and the background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may, without objective and reasonable justification, give rise to a breach of that Article ( see Thlimmenos, cited above, § 44; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and D.H. and Others, cited above, § 175).", "49. Similarly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the State ’ s policy choice unless it is “manifestly without reasonable foundation” ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997 ‑ VII, and the Grand Chamber judgment in Stec and Others, cited above, § 52 ).", "50. Lastly, as regards the burden of proof in the sphere of Article 14 of the Convention, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified ( see D.H. and Others, cited above, § 177 ).", "( b) Application of the case-law to the present case", "51. As to the circumstances of the present case, the applicant complained about the refusal to grant her a survivor ’ s pension on the ground that she had not been married to M.D, her marriage according to Roma rites and traditions having been regarded as a more uxorio relationship – a mere de facto marital relationship. For the applicant, to treat her relationship with M.D. as a mere de facto marital relationship for the purposes of the survivor ’ s pension constituted discrimination in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. That discrimination was based on the fact that her application for a survivor ’ s pension had received different treatment in relation to other equivalent cases in which an entitlement to a survivor ’ s pension had been recognised even though the beneficiary had not been married according to the statutory formalities, whereas, in her case, neither her good faith nor the consequences of the fact that she belonged to the Roma minority had been taken into account.", "52. The Court finds that the applicant was married to M. D. in November 1971 according to the rites and traditions of the Roma community. They had six children together. The applicant lived with M.D. until his death on 24 December 2000. On 11 August 1983 the civil registration authorities issued them with a family record book indicating the couple and their children. On 14 October 1986 they were granted the administrative status of “ large family ”, for which the parents had to be “spouses ” ( see paragraph 27 above ), and were able to exercise all the corresponding rights. Moreover, M.D. was covered by social security, to which he contributed for nineteen years, three months and eight days, and his social security benefit card indicated that he supported the applicant, as his wife, and his six children. The Court notes that this is an official document as it is stamped by Agency no. 7 of Madrid of the National Institute of Social Security.", "53. As regards the arrangements for survivor ’ s pensions at the material time, the Court observes that the General Social Security Act, according to the version then in force, recognised an entitlement to a survivor ’ s pension for the surviving spouse. That statutory provision was, however, supplemented and nuanced both in the law itself and in the case-law of the domestic courts, including that of the Constitutional Court ( see paragraph 32 above).", "The constitutional case-law has indeed taken into account, in recognising survivor ’ s pensions, the existence both of good faith and of exceptional circumstances rendering the celebration of marriage impossible, even though no legally valid marriage has taken place. The Court notes that the tenth amendment to Law no. 30/1981 of 7 July 1981, amending the provisions pertaining to marriage ( see paragraph 26 above ), recognised an entitlement to a survivor ’ s pension even in the absence of marriage, in cases where it had not been possible to give consent according to canonical rites. It observes that, according to the interpretation of that provision by constitutional case-law, a survivor ’ s pension may be granted in the event of an impediment to marriage ( in the canonical form ), for example where a divorce could not be obtained, or where marriage was against the couple ’ s beliefs ( see paragraph 32 above ). The General Social Security Act, as in force at the material time, recognised in section 174 an entitlement to a survivor ’ s pension where there had been a belief in good faith in the existence of a marriage that was null and void. The Constitutional Court has moreover recognised, in particular in its judgment no. 1 99/ 20 04 (see paragraph 32 above ), a survivor ’ s pension entitlement in the event of a canonical marriage where the statutory requirements were not met, as the marriage had not been registered in the Civil Register for reasons of conscience.", "54. In view of the foregoing, the question arising in the present case is whether the fact that the applicant was denied the right to receive a survivor ’ s pension reveals discriminatory treatment based on her affiliation to the Roma minority, in relation to the manner in which legislation and case-law have treated similar situations where the persons concerned believed in good faith that they were married even though the marriage was not legally valid.", "55. The applicant based her claim, firstly, on her conviction that her marriage, solemnised according to Roma rites and traditions, was valid, and secondly, on the conduct of the authorities, which had officially recognised her as the spouse of M.D. and had consequently accepted, in her submission, the validity of her marriage.", "56. The Court takes the view that the two questions are closely linked. It observes that the domestic authorities did not deny that the applicant believed in good faith that she was really married. Her belief was all the more credible as the Spanish authorities had issued her with a number of official documents certifying her status as spouse of M.D.", "For the Court, it is necessary to emphasise the importance of the beliefs that the applicant derives from belonging to the Roma community – a community which has its own values that are well established and deeply rooted in Spanish society.", "57. The Court observes, in the present case, that when the applicant got married in 1971 according to Roma rites and traditions, it was not possible in Spain, except by making a prior declaration of apostasy, to be married otherwise than in accordance with the canon-law rites of the Catholic Church. The Court takes the view that the applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, in 1971, when she expressed her consent to marry according to Roma rites.", "58. Admittedly, following the entry into force of the Spanish Constitution of 1978 and by virtue of Law no. 30/1981 of 7 July 1981 (paragraph 26 above ), the applicant could have opted for a civil marriage. The applicant argued, however, that she believed in good faith that the marriage solemnised according to Roma rites and traditions produced all the effects inherent in the institution of marriage.", "59. In order to assess the applicant ’ s good faith the Court must take into consideration the fact that she belongs to a community within which the validity of the marriage, according to its own rites and traditions, has never been disputed or regarded as being contrary to public order by the Government or the domestic authorities, which even recognised in certain respects the applicant ’ s status as spouse. The Court takes the view that the force of the collective beliefs of a community that is well-defined culturally cannot be ignored.", "60. The Court observes in this connection that there is an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see paragraph 33 above, in particular the Council of Europe ’ s Framework Convention for the Protection of National Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 93, ECHR 2001 ‑ I ).", "61. The Court takes the view that, while the fact of belonging to a minority does not create an exemption from complying with marriage laws, it may have an effect on the manner in which those laws are applied. The Court has already had occasion to point out in its Buckley judgment ( albeit in a different context ), that the vulnerable position of Roma means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( see Buckley v. the United Kingdom, 25 September 1996, §§ 76, 80 and 84, Reports 1996 ‑ IV; Chapman, cited above, § 96; and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004 ).", "62. In the present case, the applicant ’ s belief that she was a married woman, with all the effects inherent in that status, was undeniably strengthened by the attitude of the authorities, who had recognised her as the wife of M.D. and had done so very concretely by issuing her with certain social security documents, in particular a registration document showing her as a wife and the mother of a large family, this situation being regarded as particularly worthy of assistance and requiring, pursuant to Law no. 25/1971 of 19 June 1971, recognition of status as spouse.", "63. For the Court, the applicant ’ s good faith as to the validity of her marriage, being confirmed by the authorities ’ official recognition of her situation, gave her a legitimate expectation of being regarded as the spouse of M.D. and of forming a recognised married couple with him. After the death of M.D. it was natural for the applicant to hope that she would be entitled to a survivor ’ s pension.", "64. Consequently, the refusal to recognise the applicant as a spouse for the purposes of the survivor ’ s pension was at odds with the authorities ’ previous recognition of such status. Moreover, the applicant ’ s particular social and cultural situation were not taken into account in order to assess her good faith. In this connection, the Court notes that, under the Framework Convention for the Protection of National Minorities ( see paragraphs 33 and 34 above ), the States Parties to the Convention are required to take due account of the specific conditions of persons belonging to national minorities.", "65. The Court takes the view that the refusal to recognise the applicant ’ s entitlement to a survivor ’ s pension constituted a difference in treatment in relation to the treatment afforded, by statute or case-law, to other situations that must be considered equivalent in terms of the effects of good faith, such as belief in good faith in the existence of a marriage that is null and void ( section 174 of the General Social Security Act, and Constitutional Court judgment no. 199/2004 of 15 November 2004 – see paragraphs 29 and 32 above –, concerning a failure to register a religious marriage on grounds of conscience ). The Courts finds it established that, in the circumstances of the present case, the applicant ’ s situation reveals a disproportionate difference in treatment in relation to the treatment of marriages that are believed in good faith to exist.", "66. Admittedly, section 174 of the LGSS, as in force at the material time, recognised a survivor ’ s pension entitlement in the absence of a legal marriage only where the marriage was null and void and was believed in good faith to exist. However, that provision cannot exempt a respondent State from all responsibility under the Convention. The Court observes in this connection that Law no. 40/2007 introduced into the LGSS the possibility for a survivor ’ s pension to be granted in cases of a de facto marital relationship ( see paragraph 30 above ).", "67. The Court observes that, in its judgment of 30 May 2002, Labour Court no. 12 of Madrid interpreted the applicable legislation in the applicant ’ s favour. It referred to Article 4 § 1 of the Civil Code, which provides that norms may be applied mutatis mutandis where they do not specifically contemplate the case in question but a comparable one, the object in both cases being regarded as similar. The Labour Court accordingly interpreted the applicable legislation in accordance with the criteria set out by the Court in its above-mentioned Buckley judgment.", "68. The Labour Court judgment was, however, overturned on appeal by the judgment of 7 November 2002. The Higher Court of Justice of Madrid then took the view ( see paragraph 15 above ) that “the principle of equality and non-discrimination [was] based on the idea that equal situations [had to] be treated equally” and “ that equal treatment applied to situations which [were] not equal constitute [d] injustice”. The Court notes that the appellate court drew no conclusion from the specificities of the Roma minority, even though it did recognise that Roma marriage was “ certainly meaningful and enjoy[ ed ] social recognition in the environment concerned ” and that the morality of the rite or its conformity with public order were not called into question. For the Higher Court of Justice, it was clear that this situation “[did] not exclude, and currently [did] not supersede, the law that [was] in force and [was] applicable to the present case ”.", "69. In the light of the foregoing and in view of the specific circumstances of the present case, the Court finds that it is disproportionate for the Spanish State, which issued the applicant and her Roma family with a family record book, granted them large-family status, afforded health-care assistance to her and her six children and collected social security contributions from her Roma husband for over nineteen years, now to refuse to recognise the effects of the Roma marriage when it comes to the survivor ’ s pension.", "70. Lastly, the Court cannot accept the Government ’ s argument that it would have been sufficient for the applicant to enter into a civil marriage in order to obtain the pension claimed. The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant ’ s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. To proceed otherwise in dismissing the victim ’ s claims on the ground that he or she could have avoided the discrimination by altering one of the factors in question – for example, by entering into a civil marriage – would render Article 14 devoid of substance.", "71. Consequently, the Court finds that in the present case there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 12 OF THE CONVENTION", "72. The applicant complained that the failure in Spain to recognise Roma marriage as having civil effects – it being the only form of marriage to produce effects erga omnes within her own community – even though the minority had been present in Spain for at least five hundred years, entailed a breach of her right to marry. She relied on Article 14 of the Convention taken in conjunction with Article 12. Those provisions read as follows :", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 12", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "73. The Government contested the applicant ’ s argument. They contended that there had been nothing to prevent her from entering into a civil marriage and took the view that Articles 12 and 14 of the Convention could not be interpreted as obliging the authorities to treat, on an equal footing, married couples who had complied with the statutory formalities and all other couples who had not done so. They referred to the margin of appreciation enjoyed by States in order to determine the exercise of the rights provided for under Article 12 of the Convention.", "74. For the Government, the right to marry had been fully upheld in the present case, in the same conditions as for any other citizen. No discrimination could be found. The applicant had voluntarily decided not to get married according to the formalities laid down in the law. The Spanish State could not therefore be criticised for not attributing the same effects to this situation as it did to marriages that met the statutory requirements. Articles 12 and 14 of the Convention could not be interpreted as obliging a State to accept a particular form of expression of consent to marry purely on account of a community ’ s social roots or its traditions. It was not therefore contrary to Article 12 of the Convention for the State to impose particular formalities for the expression of such consent.", "75. The applicant asserted that in 1971, when she married M.D. according to the Roma rites, only religious marriage existed in Spain and civil marriage was not possible except in cases of apostasy. She married according to Roma rites because they were the only rites recognised by her community and because, in good faith, she was not free to give her consent in any other form. The applicant therefore protested that she was deprived of welfare entitlements on the pretext that she had not been married to M.D., refusing to be considered merely as his “partner”.", "76. For the applicant, the non-recognition under Spanish law of Roma rites as a form of expression of consent to marry, while certain religious rites did constitute valid forms of expression of consent, entailed, per se, a violation of the rights invoked. The applicant pointed out that Roma marriage had existed for over five hundred years in Spanish history; it consisted of a form of expression of consent which was neither civil nor religious but was deeply rooted in the culture of her community, being recognised and producing effects erga omnes in that community, through the validating effect of custom. Spanish law did not take into account the specificities of the Roma minority because it obliged that community to comply with a form of expression of consent that its members did not recognise.", "77. Unión Romaní referred to the finality of the consent given in Roma marriage and sought recognition by the State of the validity of their rites. It argued that the Roma community in Spain had maintained its traditions for centuries and invited the Court to find that respect for ethnic minorities, with their traditions and cultural heritage and identity, was an essential component of the Convention.", "78. The Court reiterates that Article 12 secures the fundamental right of a man and woman to marry and to found a family ( see F. v. Switzerland, 18 December 1987, § 32, Series A no. 128, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 98, ECHR 2002 ‑ VI ). The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired ( see I. v. the United Kingdom [GC], no. 25680/94, § 79, 11 July 2002).", "79. The Court observes that civil marriage in Spain, as in force since 1981, is open to everyone, and takes the view that its regulation does not entail any discrimination on religious or other grounds. The same form of marriage, before a mayor, a magistrate or another designated public servant, applies to everyone without distinction. There is no requirement to declare one ’ s religion or beliefs or to belong to a cultural, linguistic, ethnic or other group.", "80. It is true that certain religious forms of expression of consent are accepted under Spanish law, but those religious forms ( Catholic, Protestant, Muslim and Jewish ) are recognised by virtue of agreements with the State and thus produce the same effects as civil marriage, whereas other forms ( religious or traditional ) are not recognised. The Court observes, however, that this is a distinction derived from religious affiliation, which is not pertinent in the case of the Roma community. But that distinction does not impede or prohibit civil marriage, which is open to the Roma under the same conditions of equality as to persons not belonging to their community, and is a response to considerations that have to be taken into account by the legislature within its margin of appreciation, as the Government have argued.", "81. Accordingly, the Court finds that the fact that Roma marriage has no civil effects as desired by the applicant does not constitute discrimination prohibited by Article 14. It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "82. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "83. The applicant initially claimed 60, 959. 09 euros (EUR) in respect of the pecuniary damage that she alleged to have sustained. At the hearing of 26 May 2009 she indicated that she had been receiving a survivor ’ s pension since 1 January 2007 by virtue of the third amendment of Law no. 4 0 /2007 of 4 December 2007 on social security measures, as de facto partner of M.D. ( see paragraph 21 above ). She accordingly reduced her claim for pecuniary damage to the sum of EUR 53, 319. 88. She further claimed EUR 30, 479. 54 in respect of non-pecuniary damage.", "84. The Government contested her claims.", "85. The Court reiterates that the well-established principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he or she would have enjoyed had the violation of the Convention not occurred ( see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002 ‑ IV ). Furthermore, the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999-II), and this is also true of non-pecuniary damage (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 67, 4 May 2006).", "86. Without wishing to speculate on the precise amount of the pension to which the applicant would have been entitled had the violation of Article 14 not occurred, the Court must have regard to the fact that she undoubtedly suffered pecuniary and non-pecuniary damage. Ruling on an equitable basis, as is required by Article 41 of the Convention, and having regard to all the special circumstances of the case, it awards her EUR 70,000 to cover all heads of damage (see, mutatis mutandis, Koua Poirrez v. France, no. 40892/98, § 70, ECHR 2003-X ).", "B. Costs and expenses", "87. The applicant claimed EUR 3, 480 for costs and expenses incurred before the Constitutional Court and EUR 3, 382. 56 for those relating to the proceedings before this Court. She produced supporting documents in respect of this claim.", "88. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 6, 862. 56 for the costs and expenses incurred in the domestic proceedings and the proceedings before it, less the EUR 1, 450 already paid by the Council of Europe in the present case by way of legal aid. It thus awards the applicant EUR 5, 412 .56.", "C. Default interest", "89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants are of Romani origin and live with their families on the area of Psari, near Aspropyrgos, a municipality in the western part of the Attica region.", "A. The steps taken by the applicants to register their children for the 2004-2005 school year", "6. On 24 June 2004, the Minister Delegate of Health, accompanied by the Secretary General of his ministry, visited the Roma camp in Psari. He had been informed, among other things, of the non- education of Romani children. On 2 August, the representatives of “European Roma Rights Centre” and of “Greek Helsinki Monitor” met with the Minister Delegate for National Education and Religious Affairs. Following this meeting, the Minister Delegate published a press release highlighting, among other things, the importance of integrating Romani children into the national education process.", "7. The 2004-2005 school year began on 10 September 2004. On 17 September 2004, the Secretary of the Department of Education of Expatriate Greeks and Intercultural Education visited the Roma camps in Psari, in the company of two representatives of the Greek Helsinki Monitor, to register all the Romani children of schooling age. To this end, they visited the two primary schools of the municipality (the 10 th and 22th primary schools of Aspropyrgos). The respective school directors encouraged Romani parents to enrol their children in primary school. The Greek Helsinki Monitor subsequently informed the competent authorities of the Ministry of Education and Religious Affairs, who gave no follow-up.", "8. The applicants confirm that on 21 September 2004, they visited the premises of the Aspropyrgos primary schools, with other Romani parents, to register their children. The directors of two schools had refused to enrol their children on the grounds that they had not received instructions to this effect from the relevant ministry. They had informed the parents concerned that upon receipt of the necessary instructions, they would invite them to complete the necessary formalities. Never afterwards were the parents invited to register their children.", "9. According to the document no. Φ20.3/747 delivered on 5 June 2007 by the First Bureau of Primary Education in West Attica, at the request of the State Legal Council, the applicants presented themselves to the director of the 10 th primary school of Aspropyrgos to gather information on registering their children. The director reportedly showed them the documents necessary to register their children. According to the same documents, on 23 September 2004, the Departmental Director of Education of the Attica region convened an informal meeting with the competent authorities of the municipality of Aspropyrgos to address the problem of additional enrolment of students of Romani origin and the capacity of Aspropyrgos ’ primary schools. On one hand, it was decided that the students who had reached the age of first schooling would be accommodated into the existing premises of the 10 th and 11 th primary schools in Aspropyrgos. On the other hand, the meeting considered that integration of children who had reached an age higher than that of preliminary education into normal classes would be detrimental from a psychopedagogical point of view: the difference of age would not permit them to have an effective schooling. On this basis, the informal meeting decided to provide two additional preparatory classes in preparation for the integration of these students into ordinary classes.", "10. On 13 and 18 September and on 2 October 2004, the Greek Helsinki Monitor referred to the Ombudsman of the Republic on behalf of the applicants of three applications concerning the difficulties of Romani children ’ s access to primary education for Romani children, inviting him to intervene. On 3 January 2005, the Ombudsman replied in writing that three representatives of his cabinet had, on an unspecified date, visited the Roma camp in Psari. In his response, the Ombudsman noted that there was not, on the part of the competent services, any systematic and unjustified refusal to enrol children of Romani origin in primary education. He noted that he had already informed teachers at Aspropyrgos ’ primary schools that domestic legislation provided for the possibility to enrol children in primary school with the simple declaration of those bearing parental authority, provided that they submit birth certificates in due course. The Ombudsman also referred to the conclusions of several meetings with the leaders of the municipality of Aspropyrgos and, more specifically, to their intention to build a separate building from the school closest to the Roma camp to accommodate the older Romani children in view of bringing them up to standard. The Ombudsman mentioned lastly the tensions that existed between the population of Aspropyrgos, composed mainly of those repatriated from states of the former Soviet Union, and the Romani minority, as an additional element preventing the integration of Romani children into the educational environment.", "11. On the 1 October 2004, the Minister Delegate for National Education and Religious Affairs asked the company responsible for operating state real estate to grant some public land with two prefabricated cells to serve as classrooms for Romani children. On an unspecified date, the Minister rejected the request.", "12. According to the Government, in November and December 2004 a delegation from teachers of primary schools no. 10 and 11 visited the Roma Camp in Psari in order to inform and convince the parents and their children, who were minors, of the necessity to enrol their children in preparatory classes. This approach would be in vain, the parents concerned not having registered their children for the current school year.", "13. On 13 February 2005, the Association for the Coordination of Organisations and Communities for the Human Rights of Roma in Greece (SOKARDE) addressed an official letter to the Board of Directors of Primary Education of West Attica in which it requested information about the schooling of the Roma in Aspropyrgos.", "14. On 17 February 2005, the Board of Directors replied that the case had experienced delays attributable to the Ministry of the Environment: it had been slow to resolve the issue of granting public land on which to construct rooms and prefabricated classrooms. The Board of Directors expressed its intention to make every effort to implement the enrolling of Romani children in primary school the following year.", "B. The registration of Romani children for the 2005-2006 school year", "15. On 24 May 2005, SOKARDE sent a letter to the Minister Delegate of National Education and Religious Affairs stressing the need to take all of the necessary measures to assure the successful schooling of Romani children for the 2005-2006 school year.", "16. A letter dated 1 July 2005 to SOKARDE states that the school authorities took various steps to inform Aspropyrgos ’ Romani families of the necessity of enrolling their children in primary school: radio messages, advertisements on the school walls informing Roma that they could register their children between 1 and 21 June 2005 and sending letters to interested parties on this subject.", "17. On 9 June 2005, at the initiative of SOKARDE, twenty-three children of Romani origin, including the children of the applicants, were enrolled in the Aspropyrgos primary school for the 2005-2006 school year. According to the Government, the number of Romani children who were enrolled was fifty-four.", "C. Incidents against Romani children in September and October 2005", "18. On 12 September 2005, the first day of the school year, the Romani parents, including the parents, accompanied their children to school. In front of the entrance, several non- Romani parents, most of them of Pontic origin, that is to say from the region of Pont-Euxin, on the southern shores of the Black Sea, were gathered, harassing people of Romani origin. They shouted, “There is not a single Roma child who will go to school. You will not have access here, that ’ s all.” Then, non- Romani parents blocked access to the school until Romani children were transferred to another building.", "19. On 12 October 2005, the non- Romani parents blocked access to the school again. They hung a sign: “The school will remain closed because of the Gypsy problem; Wednesday 12.10.05”.", "20. On 13 October, Romani children tried to access the school. They were once more confronted by a group of non- Romani parents. In particular, the president of the association showed, on camera of a television channel that had visited the scene, the medical files of children of Romani origin in order to prove that they had been inadequately vaccinated. Finally, with the assistance of the police, who had gone there, the Romani children were able to access the school.", "21. As part of the judicial investigation of this incident, the police officer D.T. made a statement with the following passage: “On 13 September 2005, around 9.10, around two hundred parents of students of Greek Pontic origin protested outside schools against the schooling of children of Romani origin at the primary school ( ... ). A confrontation was avoided thanks to the prompt intervention of the police of Aspropyrgos ( ... ). On 15 and 16 September 2005, the association of parents organised a boycott of student participation in class. From the first day of the incidents, police were posted outside the school to secure the entry and exit of Romani students. On 10 October 2005, the association of parents blocked access to the school as a protest against the afternoon welcoming of Romani students in the same rooms which welcomed the other students in the morning. On 11 and 12 October, in the presence of police, students of Romani origin had access to classes without difficulty. On 13 October 2005, fifty to sixty non- Romani parents gathered to protest against the presence of Romani students and to encircle the school ’ s entrance in order to prevent access ( ... )”.", "22. By a letter, dated 1 March 2006, the West Attica Police Board informed the Greek Helsinki Monitor that on 13, 14, 15, 16 and 19 September 2005 and on 10, 11, 12, 13, 17, 19, 21, 25, 26, 27, and 31 October 2005, police forces had been sent to the 10 th and 11 th primary schools in order to maintain order and to prevent illegal acts committed against Romani students.", "23. As of 31 October 2005, the applicants ’ children were educated in a separate building from the main primary school of Aspropyrgos and the non- Romani parents stopped blocking the school.", "D. The schooling of the applicants ’ children", "24. Under Act No. 39/ 20.9.2005 of the Peripheral Council for Primary Education, three preparatory classes were created to meet the educational needs of Romani children; the classes of one took place in the morning while the other two took place after 15.30. The Peripheral Council indicated that the Romani students of all ages who were confronted with problems pertaining to their learning capacity could take special preparatory classes, the aim being to allow their integration without hindrance into ordinary classes.", "25. On 25 October 2005, the applicants signed a statement written by the teachers of Aspropyrgos School expressing their wish to have their children transferred to the building separate from the primary school. The applicants allege that they had signed the statement in question under pressure from the Minister of Education, non- Romani parents, and certain leaders of the Roma community.", "26. On 31 May 2007, the first applicant swore in the Elefsina District Court that he would have preferred for his students to attend regular classes rather than special school. He clarified, however, that it was difficult for him to maintain this position when the integrity of his children was endangered by furious non- Romani residents and that the teachers indirectly encouraged him to consent to his children ’ s schooling in the “ghetto school”.", "27. In the meantime, under Act No. 261/22.12.2005, the Prefect of Attica had decided that three classes of primary school No. 10 in Aspropyrgos would be accommodated in prefabricated rooms installed on land owned by the municipality of Aspropyrgos.", "28. On 17 March 2006, the West Attica Primary Education Directorate sent a letter to the Ministry of National Education and Religious Affairs. She informed the Ministry that for the 2005-2006 school year, fifty-two new students of Romani origin had been enrolled in the 10 th primary school of Aspropyrgos. She noted that “ due to the lack of space in the main school building of the school, and with the parents ’ agreement, pupils of Romani origin had been accommodated in an annex located near the Roma camp”.", "29. On 20 June 2006, the third constituency of the West Attica Primary Education Council sent a letter to the director of the outskirts of Attica. She informed him that for the 2005-2006 school year, fifty-four students of Roma origin had been enrolled in the 10 th primary school of Aspropyrgos. She stated that “preparatory classes [were] provided for the Romani students, in order to assure their adaptation to the schooling environment, given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes.” She added that “despite the progress made by Romani students in the preparatory classes, all of these students are not yet fit to integrate into ordinary classes.”", "30. On 5 April 2007, prefabricated rooms of the 10 th primary school were set on fire by unknown people. It appears from the file that in September 2007, the two rooms were replaced but because of infrastructure problems, they were not operational. In September 2007, a 12 th primary school was created in Aspropyrgos, to which Romani children were transferred. The record shows that in October 2007, this school was not yet operational, because of the infrastructure problems. The Government alleges that the establishment of the 12 th primary school in Aspropyrgos was intended only to relieve congestion at the 10 th primary school.", "I. Structures", "1. Educational policies for Romani /Gypsy children should be accompanied by the necessary means and flexible structures to reflect the diversity of the Roma/Gypsy population in Europe and to take into account Roma/Gypsy groups ’ itinerant or semi-itinerant way of life. In this respect, the use of a system of education at a distance, based on new communication technologies, could be considered.", "2. Emphasis should be placed on better coordination at international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies.", "3. Member states should, in this regard, make the Ministries of Education sensitive to the question of Romani /Gypsy children ’ s education.", "4. Pre-school education should be widely developed and made accessible to Romani /Gypsy children, in order to ensure their access to schooling and education.", "5. Special attention should also be paid to better communication with and between parents by using, when appropriate, mediators from the Roma/Gypsy community who would have the opportunity to access a specific professional career. Special information and advice would be provided to parents on the necessity for education and the support mechanisms that municipalities can offer to families. The exclusion and lack of knowledge and education (or even illiteracy) of parents also prevent children from benefiting from the education system.", "6. Adequate support structures should be put in place to enable Romani /Gypsy children to benefit from equal opportunities in school, including through positive action.", "7. Member states are invited to provide the necessary means to implement the aforementioned policies and measures in order to bridge the gap between Romani /Gypsy schoolchildren and those belonging to the majority population.", "II. School programmes and teaching materials", "8. Educational measures for Romani /Gypsy children should be part of a wider intercultural policies and take into account the characteristics of Romanini culture and the disadvantaged position of many Roma/Gypsies in the Member States.", "9. School curricula, as a whole, and teaching materials should be designed in a manner to respect the cultural identity of Romani /Gypsy children. The history and culture of the Roma should therefore be introduced in the educational materials in order to reflect the cultural identity of Romani /Gypsy children. The participation of representatives from Roma/Gypsy communities in the development of material on Roma/Gypsy history, culture, and language should be encouraged.", "10. Member states should, however, ensure that these practices not lead to separate school curricula that can lead to creating separate classes.", "11. Member states should equally encourage the development of educational materials based on examples of successful action in order to assist teachers in their daily work with Romani /Gypsy children.", "12. In countries where the Romani language is spoken, Romani /Gypsy children should be offered the opportunity to take classes in their mother tongue.", "III. Recruitment and teacher training", "13. Provision should be made for the introduction of specific education in programs preparing future teachers so that they can acquire the knowledge and training to better understand Romani /Gypsy schoolchildren. However, the education of Romani /Gypsy schoolchildren should remain and integral part of the overall education system.", "14. The Roma/Gypsy community should be involved in the development of these programs and should be able to directly communicate this information to future teachers.", "15. Recruitment and training of teachers from the Roma/Gypsy community should also be promoted ( ... )”.", "2. The Parliamentary Assembly", "a) Recommendation No. 1203 (1993) on Gypsies in Europe", "39. The general comments in this recommendation include:", "“One of the aims of the Council of Europe is to promote the formation of a true European cultural identity. Europe is home to many different cultures, all of which, including multiple minority cultures, contribute to its cultural diversity.", "Gypsies hold a special place among minorities. Living dispersed throughout Europe, unable to claim a country for their own, they constitute a true European minority who do not correspond to the definitions applicable to national or linguistic minorities.", "As a non-territorial minority, Gypsies contribute significantly to Europe ’ s cultural diversity, in multiple respects, be it through language and music or in their artisanal activities.", "Following the admission of new Member States from central and eastern Europe, the number of Gypsies living in the Council of Europe area has considerably increased.", "Intolerance towards Gypsies has always existed. However, outbreaks of racial or social hatred are occurring more and more regularly and strained relations between communities have contributed to creating the deplorable situation in which the majority of Gypsies live today.", "Respect for the rights of Gypsies, whether for their fundamental human rights, or their rights as a minority, is an essential condition for improving their situation.", "By guaranteeing equal rights, opportunities, and treatment, and by taking steps to improve the situation of Gypsies, it will be possible to revive their language and culture, thereby enriching European cultural diversity.", "It is important to guarantee to Gypsies the enjoyment of rights and liberties defined in Article 14 of the European Convention of Human Rights, as this enables them to assert their rights ( ... ).”", "40. Concerning the area of education, the recommendation states:", "“existing European teacher training programs for Gypsies should be expanded;", "Special attention should be paid to the education of women in general and mothers with their young children;", "Gifted young Gypsies should be encouraged to study and act as intermediaries for Gypsies; ( ... ).”", "b) Recommendation No. 1557 (2002) on the legal situation of Roma in Europe", "41. This recommendation states in particular :", "“ (...)", "3. Today, Roma are still subject to discrimination, marginalisation and segregation. Discrimination is widespread in all areas of public and private life, including access to public service, education, employment, heath services and housing, as well as to crossing borders and access to asylum procedures. Economic and social marginalisation and segregation of Roma are turning into ethnic discrimination, which generally affects the most vulnerable groups in society.", "4. Roma constitute a special group, minority for twofold reason: ethnically minority, they also very often belong to the socially disadvantaged strata of society ( ... ).", "15. The Council of Europe can and must play an important role in improving the legal status of Roma, the level of equality they enjoy, and their living conditions. The Assembly calls on Member States to fulfil the following six general conditions, which are necessary to improve the situation of the Roma in Europe: ( ... )", "c) guarantee equality of treatment of the Roma minority as an ethnic or national minority group or in the fields of education, employment, housing, health and public services. Member States should pay special attention:", "( ... )", "ii. to give Roma the opportunity to integrate into all educational structures, from kindergarten to university;", "iii. to develop positive measures to recruit Roma in public services of direct interest to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local governments;", "iv. to eliminate any practice tending towards school segregation of Romani children, in particular the practice of referring them to schools or classes reserved for students with mental disabilities;", "d) to develop and implement positive action and preferential treatment for the socially disadvantaged classes, including the Roma, as a socially disadvantaged community, in the fields of education, employment, and housing ( ... );", "e) to take specific measures and to create special institutions for the protection of Romani language, culture, traditions and identity; ( ... )", "ii. to encourage Romani parents to send their children to primary and secondary school, and institutions of higher education and to correctly inform them of the importance of education; ( ... )", "v. recruit Romani teachers, especially in areas where the Roma population is considerable;", "f) to combat racism, xenophobia, and intolerance, and to ensure non-discriminatory treatment towards Roma on local, regional, national and international levels: ( ... )", "vi. to pay particular attention to phenomena of discrimination against the Roma, particularly in the fields of education and employment; ( ... ).”", "3. The European Commission against Racism and Intolerance (ECRI)", "a) ECRI ’ s General Policy Recommendation No. 3: Combating racism and intolerance against Roma / Gypsies (adopted by ECRI on 6 March 1998)", "42. The relevant portions of this recommendation read as follows:", "“The European Commission against Racism and Intolerance:", "(...)", "Recalling that the fight against racism, xenophobia, anti-Semitism and intolerance is an integral part of the protection and promotion of human rights, and that these rights are universal and indivisible, and are the rights of all human beings, without distinction of any kind;", "Stressing that the fight against racism, xenophobia, anti-Semitism and intolerance is aimed above all at protecting the rights of vulnerable members of society;", "Convinced that any action against racism and discrimination should begin from the point of view of the victim and seek to improve his or her situation;", "Noting that Roma/Gypsies throughout Europe today suffer from persistent prejudices against them, are victims of racism deeply rooted in society, are the target of demonstrations, sometimes violent, of racism and intolerance, and that their human rights are regularly violated are threatened;", "Noting further that the persistent prejudices towards Roma/Gypsies drive discrimination against them in many areas of social and economic life, and that this discrimination significantly fuels the process of social exclusion from which Roma and Gypsy people suffer;", "Convinced that the promotion of the principle of tolerance is a guarantee of the maintenance of open and pluralistic societies, making peaceful coexistence possible;", "Recommends to the governments of the member states the following:", "(...)", "– To ensure that discrimination as such as well as discriminatory practices are combatted by means of adequate legislation and to ensure that specific provisions are included in civil law, in particular in the areas of employment, housing and education;", "(...)", "– To fight vigorously all forms of school segregation of Roma and Gypsy children and to ensure effectively equal access to education; ( ... ).”", "b) ECRI ’ s General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (Adopted by ECRI on 13 December 2002)", "43. For the purposes of this recommendation, the following definitions apply:", "“ a) “ racism” the belief that grounds such as race, colour, language, religion, nationality or ethnic or national origin justifies contempt towards a person or group of people, or the idea of one ’ s superiority or of a group of people", "b) “ direct racial discrimination” means any difference of treatment based on grounds such as race, colour, language, religion, nationality or national or ethnic origin, which lacks reasonable or objective justification. A difference of treatment lacks reasonable and objective justification if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim pursued.", "c) “indirect racial discrimination” means the case where an apparently neutral factor such as a provision, criterion or practice cannot be so easily respected by persons belonging to a group distinguished by grounds such as race, colour, language, religion, nationality or national or ethnic origin, or disadvantages these persons, unless this factor has an objective and reasonable justification. This is so if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the intended purpose.", "44. In the explanatory memorandum to this recommendation, it is noted (point 8) that the definitions of these concepts of direct and indirect discrimination contained in paragraph 1(b) and 9c) of the recommendation are based on those contained in Council Directive 2000/43/EC of the Council on the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin, and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, as well as the case-law of the European Court of Human Rights.", "c) ECRI ’ s report on Greece made public on 8 June 2004", "45. ECRI recalls in its report from 8 June 2004 that in its previous report it had drawn the attention of Greek authorities to the situation of the Roma, in particular to the problems of eviction from their homes and of discrimination in access to public services and underlined the importance of overcoming local resistant to initiatives in favour of Roma.", "46. After having expressed its concern, ECRI considers in its report from 8 June 2004 that, since the adoption of its second report on Greece, the situation of Roma in Greece has not fundamentally changed and that in general they experience the same difficulties – including discrimination – in housing, employment, education, and access to public services.", "4. The Commissioner for Human Rights", "The final report by Mr Alvaro Gil-Robles on the human rights situation of Roma, Sinti and Travelers in Europe (dated 15 February 2006)", "47. In the third part of this report, dedicated to discrimination within education, the Commissioner observes that if a significant number of Romani children do not have access to quality education equal to that offered to other children, it is also because of discriminatory practices and prejudices. In this respect, he notes that segregation within the education system is a common characteristic of many member States of the Council of Europe. In some countries, there are isolated schools in isolated camps, in others special classes for Romani children in ordinary schools, or a clear overrepresentation of Romani children in classes for children with special needs. It is frequent that Romani children are placed in classes for children with special needs, without adequate psychological or pedagogical evaluation, the real criteria being their ethnicity. Placement in special schools or classes means that these children often have a less ambitious curriculum than those in normal classes, which reduces their educational prospects and hence their chances of finding a job at a later stage. Automatic placement of Romani children in classes for children with special needs specifically reinforces social stigma by labelling Romani children as less intelligent and less capable. At the same time, segregated education deprives Romani children and non- Romani children of the opportunity to know each other and to learn to live as equal citizens. It excludes Romani children from normal society from a very early age, increasing the risk of them being caught in the vicious cycle of marginalisation.", "48. In conclusion, the Commissioner makes a number of recommendations in the area of education. According to him, when segregation in education still exists in one form or another, it must be replaced by an ordinary integrated education and, if necessary, prohibited by legislation. Adequate resources should be allocated to pre-school education, language training, and the training of school assistants to ensure the success of desegregation efforts. Then, an adequate assessment should be made before placing children in special classes, so that the only criteria for placement are the objective needs of the child and not his or her ethnicity.”" ]

[ "II. THE LAW AND THE RELEVANT DOMESTIC AND INTERNATIONAL PRACTICE", "A. The law and domestic practice", "1. Domestic law", "31. According to Article 7 § 1 of Presidential Decree No. 201/1998,", "“All pupils who have attained the legal age of schooling must be registered in the first class of primary school. Registrations take place from 1 June to 15 June of the preceding school year.”", "32. Directive Φ4/350/Γ1/1028/22.8.1995 of the Ministry of National Education and Religious Affairs underlines the need “ for cooperation between Romani families, heads, and school councils so that Romani children living in camps are registered in nursery and primary schools ( ... ). The heads [of schools] must not only encourage Romani children to enrol in primary schools, but also, identify Romani children in their district and ensure their registration and attendance at classes ( ... )”. In addition, Directive Φ4/127/Γ1/694/1.9.1999 of the Minister of National Education and Religious Affairs and Article 7 § 8 of Presidential Decree No. 201/1998 require the competent authorities to facilitate the access of Romani children to public education.", "33. The relevant articles of Legislative Decree No. 18/1989 on the “Codification of the provisions of the laws on the Council of the State” provide:", "Article 45", "“Offending acts”", "“ 1. An action for annulment for abuse for excess of power or violation of the law is admissible only against legally binding acts of the administrative authorities and the legal entities of public law who are not susceptible to appeal before any other jurisdiction.", "(...)", "4. In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph 1, the action for annulment is admissible even against the failure of that authority to enact such an act.", "The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires, or after the expiry of a period of three months from the filing of the request of the administration, who is expected to issue an acknowledgment of receipt ( ... ) indicating the day of the said deposit. The action for annulment exercised before the expiry of the aforementioned periods is inadmissible.", "An action for annulment validly lodged against an implied refusal [of the administration] is also an action against the negative act that may be subsequently adopted by the administration; however, this act may also be attacked separately.”", "Article 52", "“ ( ... )", "2. A committee established for the needs of the cause by the president of the Council of State or the competent section of the Council of State and composed of said president or his deputy, the reporter of the case and a councillor of State may, at the request of the author of the solution of annulment, suspend the execution of the contested act by a decision briefly reasoned and adopted in the Council Chamber ( ... ).”", "2. The Hellenic League of Human Rights (LHDH) and the Centre for Research on Minority Groups (KEMO)", "34. The LHDH, established in 1953, is the oldest non-governmental organisation in Greece. It is a member of the International Federation of Human Rights. KEMO is a non-profit organisation established in 1996. The purpose of its activity is scientific research on minority groups and languages in Greece.", "35. LHDH and KEMO ’ s 2007 annual report on the state of racism and xenophobia in Greece observes a clear improvement in schooling conditions for people belonging to the Muslim and Roma minorities compared to those of the nineties. However, the report notes that the registration of Romani children in school continues to be a source of tension, intolerance, and violent reactions. This sometimes requires the placement of Romani children in schools specially created for the Roma, despite the strong commitment of the administration to avoid the segregation of minorities in the school environment. The report notes that the most serious incidents of intolerance concern the registration of Romani children in primary education.", "3. The Institute of Education for People of Greek Origin and Intercultural Education", "36. By a letter dated 2 February 2004, the Institute of Education for People of Greek Origin and Intercultural Education had informed the representative of the Greek Helsinki Monitor that eighteen schools attended only by “Gypsy children” had been operation in Greece during the 2002-2003 school year.", "B. The sources of the Council of Europe", "1. The Committee of Ministers", "The Recommendation no. R (2000) 4 of the Committee of Ministers to member-states on the education of Roma children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696 th meeting of the Ministers ’ Deputies)", "37. The terms of this recommendation are as follows:", "« The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe,", "Considering that the aim of the Council of Europe is to achieve a closer union among its members, and that this aim may be pursued in particular by adopting joint action in the field of education;", "Recognising the urgent need to lay new foundations for future educational strategies for Roma / Gypsies in Europe, in particular because of the high rate of illiteracy or semi-illiteracy in this community, the extent of school failure, the low proportion of young people completing primary school and the persistence of factors such as school absenteeism;", "Noting that the problems faced by Roma / Gypsies in the field of education are largely due to the long-standing educational policies that have led either to the assimilation or segregation of Romani / Gypsy children in school on the grounds that they suffered from a \"socio-cultural handicap\";", "Considering that the disadvantaged position of Romani / Gypsies in European societies can only be remedied if equality of opportunity in the field of education is guaranteed to Romani / Gypsy children;", "Considering that the education of Romani / Gypsy children should be a priority of national policies for Roma / Gypsies;", "Bearing in mind that policies to address the problems faced by Roma / Gypsies in the field of education must be comprehensive and based on the recognition that the issue of schooling of Romani / Gypsy children is linked to a set of factors and preconditions, including economic, social and cultural aspects and the fight against racism and discrimination;", "Bearing in mind that educational policies for Romani / Gypsy children should be accompanied by an active policy on adult and vocational education; (...)", "Recommends the governments of member states:", "to respect, in the implementation of their education policy, the principles set out in the appendix to this Recommendation;", "to bring this Recommendation to the attention of the competent public authorities in their respective countries, through the appropriate national channels.\"", "38. The relevant parts of the Annex to Recommendation No. R (2000) 4 read as follows:", "“Guiding Principles for an Education Policy for Romani /Gypsy Children in Europe”", "THE LAW", "I. ON THE ADMISSIBILITY OF THE APPLICATION", "49. On principle, the Government plead the inadmissibility of the complaint for failure to exhaust domestic remedies. In particular, it claims that in virtue of Article 45 § 4 of Legislative Decree No. 18/1989, the applicants had the opportunity to appeal to the Administrative Court of Appeal against the for an action for annulment against the omission of the administration to register their children. In addition, the Government plead that the applicants could, on the basis of Article 52 § 2 cited above, add to their action for annulment a request for the suspension of the alleged omission of the administration.", "50. The Court considers that said exception is closely linked to the substance of the applicants ’ grievance on the grounds of Article 13 of the Convention and decides to attach it to the merits.", "51. The Court considers furthermore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it faces no other ground of admissibility. It should therefore be declared admissible.", "II. ON THE ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "52. The applicants complain that no remedy in domestic law was available to them through which they could have raised their grievances drawn from Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. They invoke Article 13 of the Convention, which reads as follows:", "“Anyone whose rights and freedoms recognised in the ( ... ) Convention have been violated, has the right to an effective remedy before a national authority, even if the violation was committed by persons acting in their official duties. ”", "53. The Government holds that Article 13 of the Convention has not been violated. Referring to its argument elaborated in the context of its objection to the admissibility of the application, it asserts that the applicants could have brought an action for annulment before the administrative courts under Articles 45 and 52 of Legislative Decree No. 18/1989, against the tacit refusal of the administration to register their children at the Aspropyrgos primary school.", "54. The applicants claim that they had no remedy available to provide them with adequate redress for the violation in question. They claim to have made use of the legal means for the prompt registration of their children at the primary school since they have addressed, through the intermediary of the Greek Helsinki Monitor, to the competent minister and Ombudsman of the Republic. They consider that a referral to the administrative courts wold not have ensured the prompt schooling of their children for the 2004-2005 school year, given the delay by these courts in dealing with the appeals before them. Lastly, the applicants note that their grievance is mainly aimed at the racist segregation of their children in schools. They argue on this point that no appeal before the administrative courts could have been effective given that, according to domestic law, the segregation of Romani children in the school setting is acceptable. On this point, they refer to the letter from the Institute of Education of People of Greek Origin and Intercultural Education dated 2 February 2004, according to which eighteen schools attended only by “gypsy children” had functioned in Greek territory during the 2002-2003 school year (see paragraph 36 above).", "55. The Court recalls that Article 13 of the Convention guarantees the existence in domestic law of a remedy for grievances that may be considered “defensible” under the Convention. Such an appeal must enable the competent national authority to know the content of the complaint based on the Convention and to offer the appropriate remedy, even if the contracting States enjoy a certain margin of judgment as to the manner of complying with the obligations of this provision.", "56. In addition, the Court notes that the rule of exhaustion of domestic remedies, stated in Article 35 § 1 of the Convention, is based on the assumption, incorporated in Article 13, with which it has close affinities, that the domestic order provides an effective remedy, in practice as well as in law, for the alleged violation ( Kudła v. Poland [GC], No. 30210/96, § 152, ECHR 2000-XI; Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, §§ 96-98, ECHR 2000 ‑ XI ). The Court recalls that in virtue of the rule of exhaustion of domestic remedies the applicant must, before referring to the Court, have given to the responsible State, using judicial resources that may be considered effective and sufficient by national legislation, the ability to remedy the alleged violations by domestic means ( see, inter alia, Fressoz and Roire v. France [GC], No. 29183/95, § 37, ECHR 1999 ‑ I ).", "57. Article 35 § 1 of the Convention prescribes the exhaustion only of remedies that are available, adequate, and relate to incriminating violations. They must exist to a sufficient degree of certainty not only in theory but also in practice, without which they lack the necessary effectiveness and accessibility; it is incumbent upon the respondent State to show that these requirements are met (see, inter alia, Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38). Lastly, someone who has made an appeal that is of a nature to directly remedy – and not indirectly – the situation at hand is not obligated to exhaust other potentially open but improbably effective measures ( Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, § 33).", "57. In this case, the Court notes that the Government has not provided any case law to demonstrate that the use of the remedies mentioned above could have led to the annulment of the alleged omission by the administration to register the children in school. However, it is for the State which alleges non-exhaustion of domestic remedies to establish the existence of effective and sufficient remedies ( Soto Sanchez v. Spain, no. 66990/01, § 34, 25 November 2003). In light of this, it is for the Court to dismiss the Government ’ s objection based on non-exhaustion of domestic remedies. In addition, in view of the fact that the Government has not mentioned any other remedy that they applicants could have exercised in order to obtain the redress of the alleged violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1, the Court concludes that the State has failed to fulfil its obligations under Article 13 of the Convention.", "58. Accordingly, there has been a violation of that provision.", "III. ON THE ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 AND ARTICLE 14 OF THE CONVENTION", "59. The applicants complain that the non- enrolment of their Romani children for the 2004-2005 school year is due to inertia and to the competent authorities ’ omissions. In addition, they see discrimination based on race and ethnicity in the fact that their children have had to attend special preparatory classes, held in separate rooms in the main building of the primary school of Aspropyrgos, where the other children from a comparable situation are welcomed. They invoke, in this respect, Articles 2 of Protocol No. 1 and 14 of the Convention, which read as follows:", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 2 of Protocol No. 1.", "“No one can be denied the right to education. The State, in the exercise of its functions in the field of education and teaching, shall respect the right of parents to provide such education and instruction in accordance with their religious and philosophical convictions. ”", "A. The parties ’ submissions", "60. The Government affirms that the educational authorities of Aspropyrgos have done everything possible to register the Romani children living in the Psari camp in primary school. It notes that in November and December 2004, a delegation of Aspropyrgos ’ primary school teachers visited the Roma living in the Psari camp to convince them to enrol their children in school. It adds that when the applicants went to the director of the 10 th primary school of Aspropyrgos, they did not have the required documents for enrolment. Finally, it notes that for the 2004-2005 school year and previous years, Romani children had been enrolled at the 10 th primary school of Aspropyrgos.", "61. As for the creation of special preparatory classes, the Government points out that they did not pursue segregative purposes in any way. He asserts that these classes had been only intended for students of an age older than that of primary school enrolment. According to the Government, the objective of these classes was mainly to teach the students reading and writing so that they could be subsequently integrated into ordinary classes. These classes initially took place in the afternoon at the premises of the 10 th primary school of Aspropyrgos, because of a lack of space in the morning, before being transferred to prefabricated rooms installed near the Romani camp in Psari. The Government submitted an undated and unsigned document, titled “ Report on the scholarly life and educational activity in the school complex for Romani children in Gorytsa Park ”. According to this report, during their enrolment and their schooling in preparatory classes, the students concerned had been subjected to assessment tests which had shown that 90% of them had weaknesses in writing and reading the Greek language. In addition, the Government notes that the applicants had been informed of the creation of these preparatory classes and that they had given their consent. Finally, it notes that it has been planned that for the 2007-2008 school year, the preparatory classes will be held in a new building intended to be built in the school complex of the 10 th primary school of Aspropyrgos to accommodate a new primary school.", "62. The applicants refer to the Ministry of National Education ’ s directives in virtue of which the administration is required to facilitate the enrolment of Romani children in school. They maintain that according to domestic law every person who fails to enrol their child at school incurs criminal responsibility. They allege that the failure to bring criminal proceedings against them in the present case only confirms the indifference of the educational authorities regarding the registration of Romani children in primary school.", "63. Regarding the schooling of Romani children in separate preparatory classes, the applicants refer in particular to the incidents created by the parents ’ association of Aspropyrgos primary school students at the beginning of the 2005-2006 school year. These incidents are based on racism, which explains the segregative attitudes of the competent authorities. As for the steps taken by the school authorities during the summer of 2005 to register Romani students in primary school, the applicants claim that these were inappropriate: the Roma would not have had electrical facilities in their camp to listen to the radio, they would be illiterate, and finally, the postal service would not serve their camp.", "64. The applicants allege the contradictory nature of the Government ’ s arguments that the constitution of preparatory classes for Romani students was dictated by objective reasons. In particular, they state that if the morning classes never took place, it is so that Romani students do not go to the other class. They consider that it would have been possible for their children to attend morning classes, given the limited number of students (from eight to twelve) who attended afternoon class in the main building of the school. In addition, the applicants hold that the special school did not actually work to prepare the Romani students to integrate, since none of these students subsequently joined ordinary classes. The applicants note on this point that today none of the Romani students attend an ordinary or preparatory class; on the other hand, the preparatory classes are abolished, and Romani students have been transferred to the 12 th primary school of Aspropyrgos, a newly created establishment which is not yet operational.", "B. The Findings of the Court", "1. General Principles", "a ) On Article 2 of Protocol No. 1", "65. The Court recalls that Article 2 of Protocol 1 implies the right of the State to establish obligatory schooling, whether in public schools or through quality private lessons, and that the verification and application of educational standards is an integral part of this right ( Family H v. United Kingdom, No. 10233/83, Commission Decision of 6 March 1984, Decisions and Reports (DR) 37, page 109). In addition, the Court more recently underlined the importance of children ’ s schooling in primary schools, not only to acquire knowledge but also to integrate children into society. The Court has also recognised the usefulness of the system of compulsory schooling to avoid the emergence of a society of two entities with different philosophical convictions ( Konrad and others v. Germany (dec.), no. 35504/030, 11 September 2006). In light of this, the Court underlines the particular importance, in systems where school attendance in public or private schools is obligatory, of school enrolment for all school-aged children, which is all the more important for children belonging to minority groups.", "b ) On Article 14 of the Convention", "66. The Court reiterates that discrimination consists of a difference in treatment, without objective and reasonable justification, between people in comparable situations ( Willis v. United Kingdom, no. 36042/97, § 48, UCHR 2002-IV). Contracting States enjoy a certain margin of discretion in determining whether and to what extent differences between otherwise similar situations justify differences in treatment ( Gaygusuz v. Austria, judgment of 16 September 1996, reports 1996-IV, § 42), but it is for the Court to make a final ruling on compliance with the requirements of the Convention.", "67. Article 14 does not forbid a member State from treating groups differently to correct “factual inequalities” between them; in fact, in certain circumstances, it is the absence of differential treatment to correct an inequality which may, in the absence of an objective and reasonable justification, result in a violation of the provision in question ( Thlimmenos v. Greece [GC], no. 34369/97, § 44, UCHR 2000-IV; D.H. and others v. Czech Republic [GC], no. 57325/00, § 175, ECHR 2007- ... ). The Court also accepts that a policy or general measure may be considered discriminatory if it has disproportionate adverse effects on a group of people, even if it did not specifically concern this group ( Hugh Jordan v. United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. Netherlands (dec.), no. 58461/00, 6 January 2005), and that discrimination potentially contrary to the Convention could result from a factual situation ( Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006- ... ).", "68. Discrimination based especially on one ’ s ethnicity constitutes a form of racial discrimination. This is a particularly condemnable discrimination which, in view of its dangerous consequences, requires special vigilance and a vigorous response on the part of the authorities. Therefore, they have an obligation to employ all the means at their disposal to fight racism, thus reinforcing democracy ’ s conceptions of society, perceiving diversity not as a threat but as a wealth ( Natchova and others v. Bulgaria [GC], nos. 4377/98, § 145, ECHR 2005- ...; Timichev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005- ... ). The Court has also considered that, in democratic society based on principles of pluralism and respect for different cultures, no difference in treatment based exclusively or in part on one ’ s ethnic origin could be objectively justified ( Timichev, cited above, § 58; D.H. and Others v. Czech Republic, cited above, § 176).", "69. In that which concerns the burden of the proof of the matter, the Court has judged that, when an applicant has established a difference in treatment, it is incumbent upon the Government to demonstrate that this difference in treatment was justified (see, for example, Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999 ‑ III; Timichev, cited above, § 57 ).", "70. As for factors which may constitute such a prima facie case and hence to shift the burden of proof to the respondent State, the Court noted ( Natchova and others, cited above, § 147) that, in the course of the proceedings before it, there was no procedural obstacle to the admissibility of evidence nor any predefined formula applicable to their assessment. In effect, the Court adopts the conclusions that, in its opinion, are supported by an independent evaluation of all of the evidence, including the inferences which it can draw from the facts and observations of the parties. In accordance with the settled case law of the Court, the evidence may thus result from a body of indications or presumptions which are not refuted, sufficiently serious, precise, and consistent. Moreover, the degree of conviction necessary to reach a particular conclusion and, in this respect, the distribution of the burden of proof, are inextricably linked to the specificity of the facts, the nature of the formulated claim and to conventional law in question ( D.H. and Others v. Czech Republic, cited above, § 178).", "71. Finally, it is evident from the Court ’ s case-law that the vulnerability of Roma/Gypsies implies the need to pay special attention to their needs and their specific way of life, both in the regulatory framework under consideration and in the decision-making process of this particular case ( Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001-I; Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). The Court notes that, because of their vicissitudes and their perpetual uprooting, the Roma constitute a disadvantage and vulnerable minority of a particular character (see also the general observations of Parliamentary Assembly Recommendation no. 1203 (1993) on Gypsies in Europe, paragraph 39 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, paragraph 41 above). They therefore need special protection. As evidenced by the activities of many Greek and European bodies, including the recommendations of the Council of Europe bodies (paragraphs 34-48 above), this protection extends equally to the area of education. The present affair thus deserves special attention, especially since at the time of the Court ’ s referral the persons concerned were minors for whom the right to education was of the utmost importance ( D.H. and Others v. the Czech Republic, cited above, § 182).", "72. In addition, the Court has already observed that an international consensus is emerging among contracting States of the Council of Europe to recognise the particular needs of minorities and the obligation to protect their security, their identity and their way of life, not only to protect the interests of minorities themselves but also to preserve cultural diversity which benefits all of society as a whole ( Chapman v. the United Kingdom, cited above, §§ 93-94).", "2. Application of the aforementioned principles to the present case", "73. The Court observes at the outset that it finds itself confronted with divergent versions of certain facts, notably on the character of the visit to the premises of the primary schools of Aspropyrgos on 21 September 2004 by the parents of Romani children. The applicants allege that the purpose of this visit was the registration of their children, while the Government asserts that the applicants wished only to obtain information about registration for their minor children. In addition, the parties disagree, in particular, on the visit of a delegation of teachers to the Psari camp in November and December 2004, on the criteria for selecting children for preparatory schools, and on the current situation regarding the schooling of Romani students.", "74. The Court recalls that it remains free to make its own assessment in light of the body of facts at its disposal ( Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 24, § 32). It notes also that even if several facts remain uncertain, there is sufficient evidence from the documents submitted by the parties to assess the case.", "75. In this case, the applicants hold that their children suffered, without objective and reasonable justification, a less favourable treatment than that accorded to non-Roma in a comparable situation, and that this situation constitutes discrimination contrary to the Convention. The Court will therefore first consider whether or not the facts of the case give rise to the presumption of discrimination. If so, it will then investigate whether the alleged discrimination is based on a reasonable and objective basis.", "a) The existence in the present case of evidence justifying a presumption of discrimination", "76. The Court notes at the outset that the parties confirm that the applicants ’ children missed the 2004-2005 school year and that preparatory classes were created within the 10 th primary school of Aspropyrgos, but that, on the other hand, they disagree as to the competent authorities ’ intentions relating to the acts or omissions attributed to them. The applicants allege that the authorities continued to segregate Romani children, while the Government asserts that their purpose was to facilitate the integration of Romani children into ordinary classes at the Aspropyrgos primary school.", "77. The Court has already recognised the difficulties which the applicants may have in proving the existence of discriminatory treatment ( Natchova and others, cited above §§ 147 and 157 ). To guarantee to the concerned persons an effective protection of their rights, less stringent rules of evidence are required in the case of an allegation of indirect discrimination.", "78. If a refutable presumption of discrimination with respect to the effect of a measure or practice is thus established by the applicants alleging an act of discrimination, it is then incumbent upon the defendant State to refute this presumption by demonstrating that the difference in question is not discriminatory (see, mutatis mutandis, Natchova and others, cited above, § 157). In fact, with regard in particular to the specific nature of the facts and the nature of allegations made in this type of case ( ibid. , § 147), it would be in practice extremely difficult for the interested parties to prove indirect discrimination without such a reversal of the burden of proof.", "79. In the present case, the Court notes that the creation of the three preparatory classes in question was only foreseen in 2005, when the local authorities found themselves confronted with the question of the schooling of Romani children residing in the Psari camp. In particular, it is clear from the document No. Φ20.3/747 submitted by the 1 st Office of Primary Education of West Attica on 5 June 2007 that the Departmental Director of Education in the region of Attica convened an informal meeting of the competent authorities of the municipality of Aspropyrgos to deal with the additional enrolment of Romani students. The Government has given no example, prior to the facts of the case, of the creation of special classes within primary schools of Aspropyrgos, even though other children of Romani origin were enrolled in the past.", "80. In addition, the Court notes that the parties agree on the composition of the preparatory classes: in fact, these were attended exclusively by students of Romani origin. The Court does not lose sign in this respect that the creation of preparatory classes and, a fortiori, of schools designed exclusively for the schooling of Romani children was at least tolerated by domestic law: by a letter on 2 February 2004, the Institute of Education of Greek People and of Intercultural Education informed the representative of the Greek Helsinki Monitor that twenty-eight schools attended exclusively by “Gypsy children” had been operational on Greek territory during the 2002-2003 school year (paragraph 36 above).", "81. The Court considers it also necessary to refer to the historical context of the case, and in particular to the racist incidents which took place in front of the 10 th primary school of Aspropyrgos in September and October 2005. It acknowledges that these incidents cannot be attributed to state authorities, since they were organised, as regrettable as it may be, by private individuals, namely some of the parents of non- Romani students of the 10 th primary school of Aspropyrgos. The Court can only note on this point that police forces were dispatched several times to primary schools of Aspropyrgos in order to maintain order and to avoid the commission of illegal acts against the Romani students. Nonetheless, this does not preclude the assumption that the aforementioned incidents affected the concerned authorities ’ subsequent decision to place the Romani student in pre-fabricated rooms constituting an annex to the 10 th Aspropyrgos primary school.", "82. In these circumstances, the evidence presented by the applicants and those in the file of the case can be considered sufficiently reliable and revealing to give rise to a strong presumption of discrimination. It is thus necessary to reverse the burden of proof and to place it upon the Government, which must demonstrate that this difference in treatment was the result of objective factors not linked to the ethnicity of the people concerned.", "b ) On the existence of an objective and reasonable justification", "83. The Court reiterates that a distinction is discriminatory if it “lacks objective and reasonable justification”, that is, if it does not pursue a “legitimate aim ” or if there is no “reasonable relationship of proportionality” between the means employed and the end pursued (see, among many others, Larkos v. Cyprus [GC], no. 29515/95, § 29 ECHR 1999-I; Stec and others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-VI). In case of a difference of treatment based on race, colour, or ethnicity, the concept of objective and reasonable justification must be interpreted in a manner as strict as possible ( D.H. and others v. the Czech Republic, cited above, § 196).", "84. The Court notes first of all that the applicants complain of the school authorities ’ refusal to enrol their students for the 2004-2005 school year. It observes that it does not appear from the evidence from the file that the applicants had endured an explicit refusal on the part of the authorities of the 10 th primary school of Aspropyrgos to enrol their children. It refers notably to the report of the Ombudsman of the Republic stating that there was not, on the part of the competent services, a general and unjustified refusal to enrol the Romani children in the primary schools. It further notes that if the parties agree on the fact that on 21 September 2004 the applicants went to see the director of the 10 th primary school of Aspropyrgos, they disagree on the question of the aim of this meeting: the applicants allege that the point of their visit was the registration of their children, while the Government asserts that the applicants wished simply to obtain information on this subject.", "85. The Court considers that, even to admit that the applicants had simply sought information on the conditions of registering their children in primary school, it is indisputable that they explicitly manifested to the competent school authority their wish to school their children. Given the vulnerability of the Roma, which implies the necessity to pay special attention to their needs (paragraphs 42 and 72 above), and the fact that Article 14 requires in certain circumstances differential treatment to correct inequality the competent authorities should have recognised the particularity of the case and facilitated the registration of children of Romani origin, even in the case where some of the required administrative documents were missing. The Court notes on this point that Greek law recognises the particularity of the situation of Roma, by facilitating the procedure of enrolling their children in school (see paragraph 32 above). Moreover, as confirmed by the Ombudsman of the Republic, domestic legislation provides for the possibility of enrolling students in primary school on a simple declaration of those who exercise parental authority, provided that they provide birth certificates in due course.", "86. This weighty obligation on the school authorities of Aspropyrgos was all the more obvious as they were aware of the problem of schooling children living in the Psari camp and the necessity to proceed with their enrolment in primary school: the interview of the applicants with the director of the 10 th primary school of Aspropyrgos which took place on 21 September 2004 had been preceded, in August 2004, by a press release from the Minister of Education which emphasised the importance of integrating Romani children in the process of national education, and, on 10 September 2004, by a visit by the Secretary of the Department of Greek and Intercultural Education, accompanied by two representatives from the Greek Helsinki Monitor, to the Romani camps in Psari with the aim of ensuring the enrolment of all the Romani children of schooling age. The Government does not dispute on this point that the Greek Helsinki Monitor had subsequently informed the competent authorities of the Minister of Education in Religious Affairs, without them acting on this case.", "87. With regard to special classes operating within the 10 th primary school of Aspropyrgos, the Court notes first of all a certain inconsistency with regard to the criteria which, according to the Government, are supposed to govern the selection of students to be assigned to preparatory classes. According to the letter from the 1 st Office of Primary Education of West Attica dated 5 June 2007, facing the additional enrolment of students of Romani origin for the 2005-2006 school year, it was age that was used to determine the students who had to attend special classes. However, in its letter of 17 March 2006, the Directorate of Primary Education of West Attica informed the Ministry of National Education and Religious Affairs that the new students of Romani origin had been welcomed into an Annex of the 10 th Aspropyrgos Primary School due to a lack of space in the main building of the school. Finally, in its letter of 20 June 2006, the 3 rd district of the Educational Council for Primary Education of Attica declared explicitly to have used the criteria of Romani origin of the interested “ with a view to assure their adaptation to the school environment, taking into account the deficiencies they suffer and diverse other reasons rendering their integration into ordinary classes impossible. ” (paragraph 29 above).", "88. The Court deduces from that which precedes this that the competent authorities have not relied on a single and clear criterion from which to choose the students to be assigned to preparatory classes. It notes in particular that in their letters from 17 March and 20 June 2006 the school authorities invoke exclusively criteria directly referring to the ethnic origin of the persons concerned. Moreover, it finds that even the application of the criteria of age mentioned in the letter of 5 June 2007 would not be likely to remove the discriminatory character reserved for the children in question. In fact, the Government makes no mention in its observation of adequate tests to which the children concerned would have been subjected in order to assess their aptitudes or possible learning difficulties (see D.H. and others v. the Czech Republic, cited above, §§ 199-201).", "89. The Government has submitted an unsigned, undated document pertaining to school life and educational activity in preparatory classes according to which the students of preparatory classes had been subjected to evaluation tests which had demonstrated that 90% among them showed weaknesses in writing and reading the Greek language. The Court notes, however, that the students concerned had been submitted to these tests after just having been distributed in preparatory classes, namely “ at the time of their registration and their schooling”. Moreover, the Government gives no details as to the content of these tests and does not rely on any expert opinion to prove their adequacy (see on this point, D.H. and others v. the Czech Republic, cited above, § 200).", "90. In addition, the Court notes that the stated purpose of the preparatory classes was that the concerned students would be brought up the standard level in order to integrate into ordinary classes. However, the Government does not cite a single example of a student who, after having been placed in a preparatory class – there had been more than fifty – would, after the end of two school years, integrated into ordinary classes of the 10 th primary school of Aspropyrgos. In addition, there are no assessment tests to which the Romani students should have been periodically submitted to enable schools to assess, on the basis of objective data and not on approximative evaluations, their aptitude to integrate into ordinary classes.", "91. The Court considers it necessary to emphasise the importance of establishing an adequate system of evaluating the aptitudes of children presenting shortcomings in learning in view of bringing them up to par. When the students concerned belong to an ethnic minority, as in the case in question, such a system is necessary, before all, to guarantee their potential placement in special classes on the base of non-discriminatory criteria. In this case, and given the racist incidents provoked by parents of non- Romani students of Aspropyrgos, the introduction of such a system would also have given rise to the applicants ’ and their children ’ s feeling that their placement in preparatory classes was not inspired by segregative motivations. While admitting that it is not for it to decide on this question of a psycho-pedagogical nature, the Court considers that this would have particularly contributed to the unhindered integration of students of Romani origin not only in ordinary classes but into local society.", "92. With regard to the parental consent granted by the applicants, the Court notes that the Government implies that given a difference of treatment having been established in this case, such consent would imply the acceptance of this difference, even if it discriminated, that is, the renunciation to the right to not be subject to discrimination. However, the Court ’ s case-law requires that the renunciation of a right guaranteed by the Convention – to the extent that it is lawful – is unequivocally established that it must be made knowingly, that is, on the basis of informed consent ( Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16-17, §§ 37-38), and without constraint ( Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, § 51).", "93. In the circumstances of the case, the Court is not convinced that the applicants, as members of a disadvantaged community often without education, were able to assess all the aspects of the situation and the consequences of their consent. It seems, in addition, clear that at least some of the applicants found themselves on this occasion confronted by a dilemma. As the first applicant indicated in his testimony under oath of 31 May 2007 before the Elsefina Peace Court, he had to choose between the schooling of his children in ordinary classes, with the risk that their integrity would be placed in peril by “furious” non- Romani people, or their education in the “ghetto school.”", "94. Recalling the fundamental importance of the prohibition of racial discrimination ( Natchova and others, cited above, § 145; Timichev, precited, § 56), the Court considers that one cannot admit the possibility of renouncing the right to not be the object of such discrimination. In fact, such a renunciation would run up against a significant public interest (see D.H. and others v. Czech Republic, cited above, § 204).", "95. In certain conditions and in view of the considerations listed above, the Court is not convinced that the contested difference in treatment between Romani children and other non- Romani children is based on an objective and reasonable justification and there exists a reasonable relationship of proportionality between the means employed and the aim in sight. In particular, it considers that, despite the authorities ’ willingness to provide schooling for the Romani children, the arrangements for registering the children in question at school and their assignment in special preparatory classes – hosted in an annex to the main building of the school – has definitively resulted in discrimination.", "96. Accordingly, there has been in this case a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 in respect of each of the applicants.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "97. According to Article 41 of the Convention,", "\"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party .”", "A. Damages", "98. The applicants claim a lump sum of 180, 000 euros (EUR) for non-pecuniary damage.", "99. The Government claims that the finding of a violation would in itself constitute sufficient just satisfaction. In addition, it considers that the sum awarded to the applicants should not exceed EUR 10,000.", "100. The Court considers that the applicants have suffered non-pecuniary damage, in particular because of the humiliation and the frustration caused to them by the discrimination suffered by their children. This moral injury is not sufficiently compensated by the findings of violation of the convention. However, the Court considers the amount sought by the applicants to be excessive. Making its judgment on an equitable basis, it considers that it is appropriate to award each of them EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that sum.", "B. Costs and expenses", "101. The applicants also demand, in support of the invoice, EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court.", "102. The Government asserts that there is not a causal link between the costs and expenses incurred in the domestic proceedings and the alleged violations of the Convention.", "103. According the Court ’ s case-law, an applicant can obtain reimbursement of their costs and expenses only in so far as their reality, their necessity, and the reasonableness of their rate are established. Taking into account the reasonableness of the amount claimed and the fact that an invoice was produced, the Court accepts this claim in its entirety and jointly awards the applicants EUR 2,000 as such, plus any amount that may be due as taxes on this amount.", "C. Default interest", "104. The Court considers it appropriate to model the rate of default interest on the interest rate on the European Central Bank ’ s marginal lending facility plus three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The evolution of the situation of the Aspropyrgos primary school since the events of the Sampanis and Others v. Greece judgment of June 5th, 2008", "5. The applicants, all of Romani origin, living, at the time of the facts, in Psari, near Aspropyrgos. Ninety-eight applicants were school-aged children between the ages of five and a half and twelve in 2008-2009 and 2009-2010. Forty-two applicants were adults, parents or guardians of other applicants. The applicants belong to thirty-eight families. Some of them were applicants in the case which gave rise to the judgment Sampanis and others v. Greece (no. 32526/05, 5 June 2008).", "6. The applicants refer to the factual circumstances of that judgment for the period up to October 2007 and in particular to the following:", "“29. On 20 June 2006, the third constituency of the West Attica Primary Education Council sent a letter to the director of Attica periphery. She informed him that for the 2005-2006 school year, fifty-four students of Romani origin had been enrolled in the 10 th primary school of Aspropyrgos. She stated that “preparatory classes [were] provided for the Romani students, in order to assure their adaptation to the schooling environment, given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes.” She added that “despite the progress made by Romani students in the preparatory classes, all of these students are not yet fit to integrate into ordinary classes.”", "30. On 5 April 2007, prefabricated rooms of the 10 th primary school were set on fire by unknown people. It appears from the file that in September 2007, the two rooms were replaced but because of infrastructure problems, they were not operational. In September 2007, a 12 th primary school was created in Aspropyrgos, to which Romani children were transferred. The record shows that in October 2007, this school was not yet operational, because of the infrastructure problems. The Government alleges that the establishment of the 12 th primary school in Aspropyrgos was intended only to relieve congestion at the 10 th primary school.”", "7. By Decision No. 10781/D4/2008 of 25 January 2008, published in the Official Gazette of 30 January 2008, the Ministers of Education and Finances created the 12 th primary school of Aspropyrgos, which was supposed to welcome Romani and non-Romani students without distinction.", "8. During the 2007-2008 school year, the Romani students were still educated in an annex of the main building of the 10 th school. During Christmas vacation, the rooms of the annex building were damaged. On 8 January 2008, following a complaint lodged by the school principal, the police assured that she would approach the prosecutor.", "9. According to the information provided by the 12 th primary school, at the end of the 2008 school year, sixty students were enrolled at the beginning of the school, eighteen had taken occasional courses, nine had finished the school year with many absences and, after a test, three of them had been considered as having the age and level necessary to be integrated into ordinary classes.", "10. On 3 March 2008, the mayor of Aspropyrgos convened the directors of the primary schools and invited them to redraw the school map and the school district zones. They attributed the same recruiting area to the 9 th, 10 th and 12 th schools.", "11. On 11 March 2008, a meeting took place at the 10 th school, organised by the Ombudsman, between the direction of this school, the prefecture, the association of parents of (non-Romani) students and the Ombudsman. The point was to convince the parents to renounce their opposition to the integration of Romani students in ordinary classes. However, an intervention by the mayor of Aspropyrgos did not permit this meeting to succeed nor was it possible to enrol the three Romani students who had a sufficient level of education into ordinary classes.", "12. On 8 April 2008, the Western Attica Primary Education Division defined the area of recruitment for each of the twelve schools in the region. The area of Psari, where the applicants resided, was attached to the 12 th school.", "13. On 24 June 2008, following a report by the committee responsible for checking of the conformity of school buildings with the provisions in force, the prefect of West Attica decided to use temporarily, for the premises of the 12 th school, the prefabricated building next to the 10 th school, which had been used in 2005 to host remedial classes.", "14. These premises of the 12 th school suffered damage again during the summer holidays of 2008, where all the equipment was stolen.", "15. On 8 September 2008, the director of the 12 th school reported in detail to the regional authorities of the Ministry of Education the damages inflicted upon the building and concluded that it was not in a state to welcome students. He confirmed that the state of the facilities did not meet the basic needs of the school and imperilled the safety of the students and teaching staff.", "16. However, on 10 September 2008, on the eve of the first day of school, Romani families were informed that the 12 th school opened its doors, on the premises next to the 10 th school.", "17. On 22 September 2008, a delegation of the European Commission against Racism and Intolerance (ECRI) of the Council of Europe visited, among others, the Romani community of Psari and to the 12 th school.", "18. On 24 September and 8 October 2008, the services of the Ministry of Education invited the mayor of Aspropyrgos and the prefect of West Attica to authorise the merging of the 12th and 11 th schools, attracting attention to the fact that this case was supported by European institutions as a result of complaints lodged against Greece.", "19. A letter sent on 26 September 2008 to the Ministry of Education by the mayor of Aspropyrgos and the parents of non-Romani students reads as follows:", "“The creation of the 12 th primary school did not aim to (...) segregate Romani students from other students in the district schools. It has, however, become an inevitable necessity because Gypsies living in tents have chosen to live a nomadic life, in dumps they have created themselves, without worrying about basic standards of hygiene, and indulging in illegal activities which have a negative impact on vulnerable social groups and, more generally, on the inhabitants of Aspropyrgos. (...) in spite of all this, [the Romani children] dare to demand to share the same classrooms as the other students of Aspropyrgos, a considerable percentage of whom are sensitive social groups or children of economic immigrants (...)”", "20. On 17 October 2008, the prefect of West Attica refused the demanded authorisation (paragraph 18 above) on the grounds that he wished to avoid creating social, cultural and educational problems. He also noted that the 12 th school was closer to the homes of the Romani students than the 11 th.", "21. On 8 December 2008, the Ombudsman of the Republic addressed the Prefect of West Attica a letter urging him to reconsider his decision of 17 October 2008. He stated, inter alia, the following:", "“The 12 th school of Aspropyrgos has a history of arson and vandalism which is not important to remember. However, we would like to draw your attention to the state of this school as described in the letter of 8 September 2008 sent by the director of this school to the head of the First Regional Education Office of West Attica, because this document was not submitted to you before you made your decision.", "The sombre aspects of the facilities include, among other things: with respect to the school yard: the fence in some places can be dangerous for children. In addition, swings and basketball hoops are destroyed. Regarding toilets: there are currently no functioning toilets in the schools. These were all looted: faucets, light fixtures, cables, door handles, and a part of the door were stolen. With regard to classrooms: doors, windows, cables, electrical panels, lighting fixtures, benches and chairs were stolen. There is no longer any air-cooling or heating apparatus. Regarding the teachers’ room: everything that existed in this room was stolen.", "In light of this, I consider that the facilities of the 12 th elementary school of Aspropyrgos, as they present themselves today, are not able to cover even the basic needs of a school unit and endanger the safety of students and teachers.”", "22. The Ombudsman stresses that, despite the fact that the recruitment zone of the 12 th school included the relevant school population, all the students enrolled for the 2008-2009 school year belonged to the Romani community, while the Presidential Decree no. 201/1998 required that it was mandatory to transfer all students living in the recruitment zone from a school to the school in question and that the transfer should take place even in the absence of a request from the parents. The Ombudsman acknowledged that the prefecture was not responsible for the non-application of the decree, but he urged the prefecture to take into consideration, in the exercise of its functions, the fact that the non-application of the decree had had the effect of turning the 12 th school into a “ghetto school,” given the fact that not a single non-Romani student from the region were enrolled there.", "23. The Ombudsman also pointed out that the Ministry of Education was in favour of integrating Romani students into the mainstream education system and that a newsletter of 10 September 2008, titled “Registration and Schooling of Romani” recommended that in each class, the percentage of students from another culture did not exceed 50%.", "24. The Ombudsman stated that there were problems of intolerance on the part of the non-Romani population and that the association of parents of non-Romani students had created problems in 2005. He admitted that the annex of the 10 th school, renamed the 12 th school, had been created under the pressure of incidents which had been caused by the parents of non-Romani students and which had led to the conviction of Greece in the judgment of the Court Sampanis and others (cited above). He pointed out that the continued refusal to authorise the merging of the 12 th and of the 11 th school constituted an unjustified discrimination against Romani students, as it prevented them from blending into the cultural environment of the region and was motivated solely by the prefect’s concern to avoid new incidents, this time on the part of the parents of students of the 11 th school.", "25. On 17 March 2009, the director of the 12 th school wrote to the mayor of Aspropyrgos, inviting him to equip the Romani camp with running water because, according to him, the absence of facilities had a negative effect on the health and safety of the children, and consequently on their ability to pursue their education. By a response of 31 March 2009, the Mayor rejected this on the grounds that the owners of the land on which the Romani were living were trying to obtain the expulsion of the latter and threatened him with prosecution if he accepted the request in question.", "26. On 30 May and 20 July 2009, the applicants address two letters to the competent services of the Ministry of Education and to the Minister himself, inviting them to allow Romani children to attend the 10 th school and to establish a program for them which would have been designed for the Muslim Romani of Thrace and which would have proved effective. They received no answer.", "27. On 11 June 2009, the director of the 12 th school informed the services of the Minister of Education that the school books were inappropriate for the Romani whose maternal language was not Greek.", "28. On 23 July 2009, the Ombudsman wrote again to the Ministry of Education. He informed him that the prefect, which had, on 17 October 2008, refused to authorise the merging of 12 th and 11 th schools, did not wish to revisit this decision. He stressed that the operation of this ghetto school for Romani students was contrary to the position of the ministry, which was unfavourable to schools “exclusively reserved for Gypsy students.” He availed himself of the letter of 8 September 2008 from the Director of the 12 th school, according to which the state of the facilities would not have covered the basic needs of a school and would have jeopardised the safety of students and teaching staff. He added that the needs could not be met by the mayor of Aspropyrgos, who openly declared on 26 September 2008, that the Romani children “dare to demand to share the same classrooms as the other students of Aspropyrgos”. He pointed out that the mayor had ignored an invitation from the regional authorities of the ministry to “do what is necessary for the immediate rehabilitation” of the 12 th school. He drew attention to the fact that Greece was “under control” in executing the judgment of Sampanis and others and that it had not made any progress so far in this regard.", "29. On 1 August 2009, the applicants lodged a complaint against the 10 th and 12 th schools with respect to the duties of the office. The examination of the complaint was still pending as of the date of submission to the Court, on 10 October 2011, of their observations in response to those of the Government.", "30. The documents in the file show that between October 2008 and June 2009, the director of the 12 th school sent several letters to regional education authorities, the prefect and the mayor of Aspropyrgos to alert them to the shortcomings which the school would have faced, including the school bus route, the construction of a playground, the installation of additional heating and toilets, the construction of two additional classrooms, and the creation of a kindergarten and the abandonment of classes by some students from April 2009.", "B. General situation of the 12 th Aspropyrgos School", "1. The Government’s argument", "31. According to the Government, the prefabricated building in which the 12 th school had been installed had four classrooms, a teacher’s office, four toilets, two shower rooms, a cafeteria, and a landscaped courtyard. Three classes had been created while the official capacity of the school would be six classes. It appears from a document prepared by the Ministry of Education on 12 July 2011 and submitted by the Government that during the period of operation of the 12 th school (2008-2011), two students had obtained their diploma for finishing primary school.", "32. From 2009, the school would have had a fax machine, a photocopier, a computer and a library. There would have been five teachers: four teachers and a gymnastics teacher. The number of students enrolled at the material time (2008-2009) would have been 226. The school attendance of the students would have been irregular, the number of people present varying from thirty to sixty per day because of the way of life of these students’ families, frequently traveling for seasonal work.", "33. The fact that all students of the 12 th school were of Romani origin was due to the attitude of local society and not to the Greek state. The Ministry of Education reportedly asked the school administration to proceed with the immediate registration of non-Romani children whose homes were in the school’s recruitment zone, even in the absence of a request on the part of the parents concerned, but it would have been found out that these children were already enrolled in other schools, private or public.", "2. The applicants’ argument", "34. On the basis of the official documents in the file, the applicants challenge several of the Government’s assertions, particularly those concerning the configuration and the size of the school as well as the number of classes in service. According to their version, the extension of the school to its current size took place in December 2009, but its capacity was still insufficient for the approximately 200 students who would have been enrolled. By a letter of 29 September 2009, the director of the 12 th school had informed the competent authorities of the Ministry of Education that only two novice teachers, without any experience, were assigned to the school. However, according to the applicants who refer to a ministerial decision of 25 September 2006, the school should have provided, in addition to the director, at least four teachers for the 2008-2009 school year for the number of 226 students provided by the Government, which would be incorrect.", "35. The absenteeism of Romani students would have been due to the location of the bus stop, far from the school, and to the impossibility for Romani students to walk in the cold and rain without suitable clothing. In addition, they should have crossed the area where the racist incidents in 2004-2005 led to the creation of the prefabricated annex of the 10 th school reserved for Romani students.", "36. According to the applicants, following the establishment of the school map, in April 2008, the administration of the 10 th school should have provided the 12 th school the names of the students enrolled in the 10 th grade and who, according to the new demarcation were to be transferred to the 12 th school for the 2008-2009 school year. The applicants state that, if this transfer had taken place, the 12 th school would have had from the beginning of its operation, hundreds of non-Romani students and thus would have been an ordinary school. This would never have happened because the new school would have been designed to work only with Romani students.", "C. Individual situation of the applicants", "1. The Government’s argument", "a) The 2008/2009 school year", "37. According to the Government, the applicants Zografo Sampani, Andreas Sampanis, Georgia Sampani, Ionna Sampani and Thomas Christakis had an education which was considered “sufficient” from the point of view of their participation in the courses.", "38. The applicants Ionnis Sampanis, Christos Sampanis, Kyprianos Velios, Christina Veliou, Panayotis Liakopoulos, Kyriakos Sampanis, Panayota Passio, Ekias Bantis, Ako Passiou, Kyriaki Karahaliou, Vasilios Sampanis, Maria Sampani, Ako Sampani, Giannoula Sampani, Nikolaos Mouratis, Ako Tsakiris, Ako Tsakiri and Antonios Karagounis were said to have had an “occasional” schooling: they would have gone to class from time to time, so that their schooling would have been interrupted by long periods of absence.", "39. The other child applicants, that is 75 out of 98 children, would not have been enrolled in school and would not have had the quality of students at the 12 th school.", "b) The 2009/2010 school year", "40. On the intervention of the Greek Helsinki Monitor and of its executive director acting as the parents’ representative, the 12 th school would have registered all the child applicants, except Ako Sampani, Vasiliki Sampani, Ako Pasios and Paraskevi Sampani. Paraskevi Sampani had completed her primary education in 2008 in a school other than the 12 th Aspropyrgos school. Among the students enrolled, 59 reportedly dropped out of school during the year. The schooling of the 35 others would have been occasional.", "2. The applicants’ argument", "41. In the first place, the applicants allege that the disclosure by the Government of the above elements concerning them personally constitutes a violation of the law No. 2472/1997 on the protection of personal data and of Article 8 of the Convention.", "42. In second place, they indicate that these elements are not reliable: the terms employed by the Government such as “sufficient” and “occasional” schooling, were vague, which indicated that the authorities of the 12 th school did not have a precise insight as to the education of the applicants but that they were based on impressions. Moreover, the information provided by the Government concerning some of the student applicants had contradicted those produced by the Government in the execution of the Sampanis and others v. Greece judgment (cited above).", "III. INTERNATIONAL TEXTS", "A. Resolution CM / ResDH (2011) 119, adopted by the Committee of Ministers of the Council of Europe on 14 September 2011 at the 1120 th meeting of the Ministers’ Deputies", "44. In supervising the execution of the aforementioned Sampanis and others judgment, the Committee of Ministers adopted the Resolution which closed the examination of the case in the following terms:", "“The Committee of Ministers, by virtue of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee shall supervise the execution of the final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);", "With regard to the judgment delivered by the Court to the Committee once final;", "Recalling that the violations of the Convention found by the Court in this case concern the non-enrolment of the applicants’ Romani children, then their schooling in special preparatory classes, as well as the lack of an effective remedy to obtain redress for this (violation of Article 14 in conjunction with Article 2 of Protocol No. 1 and violation of Article 13)) (see details in Annex);", "Having invited the government of the respondent State to inform it of the measures which it has taken to comply with the judgment of the Court in accordance with its obligation under Article 46, paragraph 1, of the Convention;", "Having examined the information transmitted by the government in accordance with the Rules of the Committee for the application of Article 46, paragraph 2 of the Convention;", "Having satisfied itself that, within the prescribed time limit, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in the Annex),", "Recalling that the finding of a violation by the Court requires, in addition to the payment of the just satisfaction awarded by the Court in judgments, the adoption by the respondent State, if necessary:", "– individual measures putting an end to the violations and erasing the consequences, if possible by restitutio in integrum; and", "– general measures to prevent similar violations;", "Recalling that the decisions of the Committee of Ministers under Article 46, paragraph 2 of the Convention do not anticipate the Court’s examination of other cases currently pending before it;", "Declares, after having examined the measures taken by the respondent State (see Annex), that it has performed its function in virtue of Article 46, paragraph 2 of the Convention in the present case and", "Decides to close the examination.", "Annex to Resolution CM/ResDH(2011)119", "Information on the measures taken to comply with the judgment in Sampanis and others v. Greece", "Introductory summary of the case", "The case concerns the non-enrolment of the applicants’ children for the 2004-2005 school year and their schooling in 2005 in special preparatory classes. In particular, the Court concluded that despite the authorities’ willingness to enrol the Romani children, the conditions for enrolling these children in school and their assignment in special preparatory classes – in an annex to the main building of the school – ultimately resulted in discrimination (violation of Article 14 in conjunction with Article 2 of Protocol No. 1). The case also concerns the lack of an effective remedy for redress in this regard. In particular, the Court noted that the Greek Government had not produced any case law demonstrating that the use of such a remedy could have led to the annulment of the alleged failure of the administration to proceed with the registration of the children (violation of Article 13).", "On the non-enrolment of children in 2004-2005, the Court noted that the Greek law recognises the particularity of the Romani situation, facilitating the procedure of registering the students in school. In this case, the authorities should have recognised the particularity of the situation of the Romani community and facilitated their enrolment in the primary school. However, even if the authorities did not explicitly refuse to enrol the students, they failed to execute as such, despite the explicit wish of the parents for them to be enrolled in school, to the competent school authorities.", "As for the special preparatory classes in an annex to the 10 th primary school of Aspropyrgos, in which the applicants’ children had been placed in 2005, the Court found that the competent authorities had not relied on a unique and clear criterion for the children’s placement. It noted in particular that the authorities had not performed adequate tests to which the children concerned would have been subjected in order to assess their aptitudes or potential learning disabilities. Moreover, even if the objective ascribed to these classes was so that the students concerned could achieve a level to integrate in due course into ordinary classes, not a single example was cited (among the 50 students concerned) who had integrated into ordinary classes of the primary school of Aspropyrgos. In addition, it had not been established that there were tests of evaluation to which the Romani students were periodically subjected to allow the school authorities to apprehend their aptitude to integrate into ordinary classes, on the base of objective data and not on rough estimates.", "I. Payment of just satisfaction and individual measures", "(...)", "b) Individual measures", "Special preparatory classes in an annex of the 10 th primary school of Aspropyrgos have been discontinued.", "Greek authorities have adopted measures to facilitate the enrolment of the applicants’ children in an ordinary school following the judgment of the Court. A new ordinary primary school (the 12 th primary school of Aspropyrgos) has been created in virtue of the ministerial decision No. 10781/D4/2008. The school which is supposed to welcome as many Romani children as non-Romani children, covers the area in which the Romani community of Aspropyrgos resides. These measures were thus intended to assure the schooling of the applicants’ children in an ordinary school.", "II. General measures", "1) On the violation of Article 14 in conjunction with Article 2 of Protocol No. 1", "The Greek authorities have provided much information as part of their consolidated action plan (DH-DD(2011)52) as well as additional information thereafter. This information is summarised below:", "Measures concerning the registration and schooling of Romani children", "Specific measures have been adopted to facilitate the registration of Romani children in the primary school. In contrast to other students, Romani children are enrolled in the primary school according to a simplified process based on a simple declaration, without the need to provide certificates. The authorities have published several circulars with the intent of instructing the school administrations on the simplified registration of Romani children and to verify that they regularly attend classes (nos F.1.T.Y./1073/117052/G1/23-9-2009, F.3/960/102679/G1/20-8-2010, 114893/G2/14-9-2010).", "Greek authorities have also adopted a number of measures to integrate Romani children into national education and to put an end to the discrimination to which they are subject in this area. These measures include in particular the establishment of a new education policy based on the French model of “priority education zones”. These zones – including the region of Aspropyrgos – aim to reinforce the integration of the most vulnerable social groups (Romani, migrants, etc.) through a number of actions and through education (Ministerial Decision AF.821/3412P/157476/Z1/31-12/2010). In addition, the awareness campaign Dosta! promoted by the Council of Europe to combat stereotypes and prejudices against Romani was also launched in Greece by the Minister of Education in February 2011. The Greek campaign focuses on primary and secondary education.", "Additionally, the authorities have begun, as of the 2010-2011 school year, a specific program for active participation of Romani children in national education, which will be implemented by two major Greek universities. In compliance with this program, the authorities have put into place special intermediaries who speak Romani fluently, in order to help Romani families with their children’s schooling. They have thus recruited 15 intermediaries in the Attica region, with one in the Aspropyrgos region. The Council of Europe is in the process of organising a number of training courses for them as part of its European Romani Intermediary Training Program (ROMED). In accordance with the program “Education for Romani Children”, the authorities have also set up social workers to provide psychological support to Romani families. One of the tasks for the social workers is to go to schools with Romani students and in Romani communities in order to identify Romani children who should go to school and to encourage their parents to send them there. School support is offered to Romani children with learning difficulties, through extracurricular support activities (supplementary classes and remedial school activities), including in the Aspropyrgos region. The authorities have also provided special training on intercultural education to teachers. At the beginning of 2011, the Ministry of Education set up an Advisory Committee for the “Education for Romani Children” program which plays an advisory role on relevant issues as well as a monitoring and evaluating role in the implementation of the program “Education for Romani Children”. This committee includes representatives of the Council of Europe, the European Commission, the OSCE/ODIHR and other major actors.", "The Greek authorities also created three educational adult education centres – the Adult Education Institute, the Adult Education Centre and the School for Parents. People of Romani origin can participate beginning at age 15.", "Finally, the Greek authorities have regularly provided information on the measures taken to improve the facilities and the working conditions of the 12 th primary school of Aspropyrgos, while noting that questions related to the functioning of this school are presently being examined by the European Court in the context of a new application (Application No. 59608/09, communicated to the authorities on 11/04/2011).", "2) On the violation of Article 13 concerning the failure of the authorities to register the applicants’ children", "The Greek authorities have indicated that the acts or failures of the school authorities are in fact administrative acts. These may be challenged in the context of an administrative procedure (before the administrative courts of appeal at first instance and before the State Council at second instance). In the present case, the Court found a violation due to the lack of an effective remedy, since the authorities could not produce case law examples in a similar context. They indicate that such an ad hoc case-law does not exist. However, domestic courts have held in a series of decisions following the Court’s judgment, that the administrative court of appeal was competent to hear applications for the annulment of administrative acts on education (for example, decisions of school authorities to change the school environment for certain students following their conduct; decision of non-enrolment following an interruption of studies; decision not to accept a student to a precise degree of college following qualifying exams)”.", "B. The European Commission against Racism and Intolerance", "45. The report of the European Commission against Racism and Intolerance (ECRI) on Greece adopted 2 April 2009 and published 15 September 2009, states that:", "« 52. In its third report, the ECRI strongly recommended that the Greek authorities promote equal opportunities for access to education for children from minority groups by organising Greek lessons and remedial classes and ensuring access of these children to education in their mother tongue.", "53. The ECRI notes with concern that Romani continue to be disadvantaged in the realm of education. Some schools always refuse to accept Romani children, which can often account for the fact that in some cases, Romani children are separated from other children, inside the same establishment or nearby. In one case, the European Court of Human Rights decided that Greece had violated Article 14 of the European Convention of Human Rights (the right to enjoy without discrimination the rights outlined in the Convention) in conjunction with Article 2 of Protocol No. 1 of the European Convention of Human Rights (the right to education). The ECRI has learned that at Spata, where Romani children were first refused enrolment in school, a separate class was created to accommodate them in order to allow them to progressively adapt to the school environment. Conscient of the necessity for progressive integration in the school system, the ECRI would like to draw the attention of the Greek authorities to its point of view on this question, which is stated in the General Policy Recommendation No. 10 on racism and racial discrimination in education. This general policy recommendation supports the creation, in particular cases and limited in duration, of preparatory classes for students from minority groups, if a real need is justified by objective and reasonable criteria and if the best interest of the children dictates it.", "54. As the Greek authorities themselves have noted and as the Ombudsman has confirmed, the drop-out rate among Romani students is very high. The authorities have signalled that special programs providing psychological support or social assistance, including intercultural education, had been established to treat this problem. However, in the absence of disaggregated data on the situation of the Romani, it is difficult to carry out an in-depth evaluation and design specific programs for this group. On this subject, the ECRI would like to draw the attention of the Greek authorities to its General Policy Recommendation No. 10 on the fight against racism and racial discrimination in education, in which it recommends that either carried out in collaboration with civil society, studies on the situation of children from minority groups in the school system in gathering statistic data on: 1) their rate of attendance and of success; 2) their dropout rate; 3) their school results and 4) their progress. In this General Policy Recommendation, the ECRI recommends to Member States to collect the necessary information to assess the problems with which students from minority groups are confronted in the domain of education in order to put into place policies to resolve these problems.", "55. The authorities have indicated that a program, co-funded by the European Union and the Greek state, deals with issues such as remedial courses in Greek, mathematics, and history for Romani children and also oversees continued teacher training. However, the ECRI has been informed of the needs for preparatory classes for Romani students and for adequately trained teachers. This is all the more necessary as the resulting benefits for Romani students are significant. Education is one of the objectives of the Integrated Action Program for the Social Inclusion of Romani adopted in 2002. However, more measures must be taken in order, in particular, that the difficulties faced by the Romani in the area of education are dealt with under this program. An interministerial commission coordinates, within the Ministry of the Interior, the activities of all the ministries involved in the implementation of the Integrated Action Plan for the Social Inclusion of Romani. It is of crucial importance that all the ministries concerned work in concert, in the measure where the situation of Romani children in the school system is inextricably tied to their socioeconomic situation, including their housing conditions and the high rate of unemployment among their parents.", "56. The ECRI exhorts the Greek authorities to reinforce the measures taken to face the difficulties which Romani children meet in the area of education, particularly exclusion, discrimination and a low success rate, in accordance with, among others, the judgment delivered by the European Court of Human Rights on the issue and its recommendation of General Policy Recommendation No. 10 on the fight against racism and racial discrimination in education. It also recommends them to adopt a comprehensive strategy to address these difficulties, including through the Interministerial Commission on Romani issues." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "43. The relevant articles in this case of Legislative Decree No. 18/1989 on the codification of the provisions of the laws on the State Council read as follows:", "Article 45", "Acts which may be challenged", "« 1. An action for annulment alleging abuse of authority or a violation of the law is admissible only against enforceable decisions of the administrative authorities and legal persons of public law which are not subject to appeal before any other jurisdiction.", "(...)", "4. In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph 1, the action for annulment is admissible even against the failure of that authority to enact such an act.", "The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires or after the expiry of a period of three months from the filing of the petition with the court which is required to issue an acknowledgment of receipt (...) indicating the day of the deposit. The action for annulment before the expiry of the aforementioned periods is inadmissible.", "An action for annulment validly lodged against an implied refusal [of the administration] is also an appeal against the negative act which, if need be, is subsequently adopted by the administration; however, this act my also be attacked separately.”", "Article 48", "“The grounds for an action for annulment are:", "1. the incompetence of the administrative authority issuing the administrative act;", "2. the defect of form;", "3. excess of power;", "4. misuse of powers, where the administrative act has all the elements of legality, but has a purpose other than that for which it was adopted.”", "THE LAW", "I. ON THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION COMBINED WITH ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION", "46. The applicants complain of discrimination of the facts of the conditions of their schooling during the 2008-2009 and 2009-2010 school years: they had been schooled in a school situated in a prefabricated building, attended only by children of their community and offering an inferior level of study to that of other students. They enounce a violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 of the Convention. These provisions are as follows:", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "Article 2 of Protocol No. 1", "“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.", "A. On admissibility", "1. Non-respect of the six-month period", "47. The Government pleads non-respect of the period of six months, as the applications had been introduced more than six months after the adoption of acts fixing the situation of which the applications complain: the decision of the director of primary education of West Attica, of 10 April 2008, which established the school map of the region, the prefectorial judgment of 24 June 2008, which approved the functioning of the 12 th school in the prefabricated building adjoining to the 10 th school, and the prefectorial judgment of 17 October 2007, which had rejected the proposition of the regional department of education to integrate the 12 th school into the buildings of the 11 th school. Moreover, the Government holds that, the applications having been introduced on 7 October 2009, the school year 2009-2010, which had started in September 2009 and finished in June 2010, cannot be the object of examination in the present application.", "48. The applicants indicate that these acts are not in themselves discriminatory. Rather, the situation at issue is a continued one, since, according to the applicants, the authorities could have taken measures at any time, and particularly at the beginning of each school year, to provide them with adequate education in accordance with the requirements of Article 14 of the Convention and Article 2 of Protocol No. 1.", "49. The applicants state that the applicants complain of the conditions of their schooling during the 2008-2009 and 2009-2010 school year. They note that they approached the Court on 7 October 2009, when the second school year had just begun, claiming that during that school year the problems they complained about had continued and persisted and that the authorities had not taken steps to remedy it. Accordingly, this preliminary objection must be rejected.", "2. Failure to qualify as “victim”", "50. The Government holds that, on one hand, with the exception of Zografo Sampani, Andreas Sampanis, Georgia Sampani, Ioanna Sampani and Thomas Christakis who had received “sufficient” schooling, the student applicants had not received any schooling, either because they would not have been enrolled in school or because, despite their registration, they have stopped classes and therefore would not be able to complain about poor conditions for a schooling they never received.", "51. On the other hand, the Government holds that, in the measure that 98 students approached the Court, there was no longer any reason for the 42 adults exercising parental authority over these applicants to also go to the Court.", "52. The applicants hold that 98 among them had been deprived of access to primary education because of the transformation of the annex of the 10 th school to, according to them, a ghetto school, devalued, under-equipped and understaffed. The question of whether or not they have taken the courses would not matter because even those who took them would not have received the education of a regular class, allowing students to move from one class to another.", "53. The Court, considering that the objection of the Government is closely linked to the substance of the grievance articulated by the applicants on the grounds of Article 14 of the Convention and of Article 2 of Protocol No. 1, decides to join it to the merits.", "54. As for the distinction made by the Govenrment between minor applicants and adult applicants, the Court considers it irrelevant to this case. In fact, it recognises the status of “victim” both to minor applicants placed in similar situations of the applicants of the case, in the judgments D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007-XII), and Oršuš and others v. Croatia ([GC], no. 15766/03, 16 March 2010), only to adult applicants, parents of these minor students ( Sampanis and others, cited above).", "3. Non-exhaustion of domestic remedies", "55. The Government also pleads non-exhaustion of domestic remedies by the applicants. They confirm that the three acts established the situation of which the applicants complain, namely, the decision of the Ministers of Education and Finances, of 25 January 2008, creating the 12 th school, the decision of the head of the Regional Department of Education defining the zone of recruitment of this school, of 8 April 2008, and the prefectural judgment of 24 June 2008 having permitted the provisional establishment of the 12 th school in the prefabricated annex of the 10 th school, constituting administrative enforceable acts susceptible to be the subject of an action for annulment before the Council of State, pursuant to Articles 45 and 48 of Decree No. 18/1989.", "56. The Government also contends that the steps taken by the applicants’ representative, in his capacity as the leader of the Greek Helsinki Monitor, with the Minister of Education and the Ombudsman could not substitute for the contentious remedies provided for by the domestic legal order. Moreover, he asserts that the applicants’ representative had knowingly avoided going to the domestic courts: he had proof of a letter that the representative sent to the director of the 12 th school, asking to inform him of the recruitment zone of that school “in the perspective of new legal proceedings”. However, according to the government, such steps have never been taken.", "57. The applicants state that they had used two domestic remedies likely to have an effect on the issue of segregation in education of which they considered themselves to be victim: the referral to the Ombudsman and the complaint with a civil action against the director of both schools. They add that the examination of the complaint is still pending, two years after its introduction, which shows that it has no efficacy. Finally, according to the applicants, with regard to the appeal to the Council of State, recommended by the Government, a decision taken by that court, after a very long procedure, could only cancel the creation of the 12 th school but not force the State to enrol Romani students in the 10 th school or prevent it from renaming the 12 th school annexed to the 10 th school.", "58. The Court recalls that the rule of exhausting domestic remedies, outlined in Article 35 § 1 of the Convention, is based on the assumption, incorporated into Article 13 (with which it has close affinities), that domestic order provides an effective remedy, in practice and in law, for the alleged violation ( Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, §§ 96-98, ECHR 2000-XI). The Court also recalls that, under the rule of exhaustion of domestic remedies, the applicant must, before submitting to the Court, have given to the responsible State, using judicial resources which may be considered as effective and national remedies, the possibility of remedying by internal means the alleged violations (see, among others, Fressoz and Roire v. France [GC], No. 29183/95, § 37, ECHR 1999-I).", "59. The Court also recalls that, in the previously-cited Sampanis and others case, it had concluded a violation of Article 13 in that the Government had not produced a single example of case law to demonstrate that the utilisation of the remedies offered by Articles 45 and 52 of Legislative Decree No. 18/1989 could have led to the annulment of the alleged omission of the administration to register the children, and that it had not mentioned any other remedy that the applicants could have exercised in order to obtain redress for the alleged violation under Article 14 of the Convention in conjunction with Article 2 of Protocol 1.", "60. The Court notes that, in support of its argument, the Government produced several judgments of the State Council concerning an act ordering the suspension of the operation of a private primary school (Judgment No. 2149/2002), a decision of the Minister of Education to establish a committee for the production of a school book on religion (4296/2009) or an act of the director of primary education who suspended the operation of a primary school (Judgment No. 3566/1996).", "61. The Court considers that, given the limited amount, these examples could not be invoked in this case in relation to the administrative acts indicated by the Government (see paragraph 55 above). It also considers that those acts did not contain any of the discriminatory aspects which the applicants denounce in the present case. The acts at issue were therefore not capable of being the subject of an effective appeal before the State Council to complain of the circumstances of the case. They limited themselves to creating a new school because of the large number of students in the 10 th school, setting the recruitment zone of the new school and settling issues related to the school’s location. An action for annulment of these acts before the State Council could not therefore ensure access for Romani students to non-discriminatory teaching in comparison with non-Romani students during the 2008-2010 school year.", "62. Accordingly, the Government’s objection on this point must be rejected.", "63. The Court notes that the applicants’ complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it faces no other ground of inadmissibility. It must therefore be declared admissible.", "B. Merits", "1. The parties’ arguments", "a) The Government", "64. The Government notes at the outset the opinion that the Court’s conclusions in the judgment Sampanis and others (cited above) need not interfere in the examination of the current case, of which the circumstances and grievances are totally different. In the above-cited judgment, the Court had not in any respect considered the material conditions of the premises where the preparatory courses were held to have a negative influence on studies and to have hindered the right of access to education.", "65. The Government maintains next that the 12 th school is an ordinary school, integrated into the network of public schools, created in the same conditions as every other public school and intended to meet the region’s educational needs. The program of studies there would be the same as in any other school and would allow students who complete their schooling to obtain a certificate of completion of primary education.", "66. The Government further states that the student applicants have, of their own accord, abandoned their schooling, which would deprive them of any possibility of criticising it. It considers that, with the exception of four of them, they cannot be seen as having been a pupil during the 2008-2009 school year. All reportedly stopped attending school in 2009-2010, shortly after their enrolment. It follows that, at the time of the events, the conditions of their education in the 12 th school could not have had any impact on their education. None of the applicant students were denied access to the school due to lack of space. The real problem of the school would have been absenteeism and not class overload. The choice made by certain students in favour of an inadequate education or even total abandonment of it, which would have affected the level of their education, cannot in any circumstances, according to the Government, be regarded as a result of discriminatory behaviour by the authorities towards them.", "67. The Government also holds that the applicants put forth confused and contradictory arguments and that they justify their refusal to enrol in the 12 th school for the 2008-2009 school year by claiming allegedly failing school conditions; however, says the Government, if this were true, they should have also refused to enrol for the 2009-2010 school year, which was not the case. In addition, the applicants alleged that they were embarrassed by the exclusive attendance of their school by Romani; however, according to the Government, they declared their willingness to have a school inside their camp.", "68. The Government deplores the acts of violence inflicted upon the building of the 12 th school It indicates in this regard that the regional authorities have reacted immediately and replaced the facilities and the equipment, so that by the beginning of the school year, in 2008, the school was operational.", "69. The Government clarifies finally that the 12 th school is not the only one to welcome Romani students in the region of Aspropyrgos and that other schools, of which the school population is mixed and is in large majority of Romani origin, like the 7 th school, perform in a satisfying manner.", "70. It concludes that the 12 th school is an ordinary public school, provided, in practice and in text, with all the characteristics of such a school and giving its students every opportunity to complete their primary studies.", "b) The applicants", "71. The applicants hold that they find themselves in a situation which is an extension of that declared contrary to the Convention and to Protocol No. 1 by the judgment Sampanis and others (cited above). They would continue to be placed in special classes that do not correspond to the classical educational structure of six classes for primary, cramped in a prefabricated building – which would have been renamed “12 th primary school” – and without competent teachers. None of the 200 students enrolled in school would have ever reached the end of their schooling.", "72. The applicants affirm also that at no point did they acknowledge that they stopped classes in 2009 shortly after their enrolment in school. Nor would they have chosen to enrol in the 12 th school, since the Greek legislation would exclude the possibility for students to choose their public school.", "73. The applicants state that they would like to integrate into the 10 th school – and not an annex of it – where some among them had been excluded in September 2005. They add that they were ready, if this registration were not immediately possible, to accept waiting for classes in the prefabricated building, on the condition that it was placed closer to the camp to prevent students from crossing a neighbourhood whose inhabitants would show hostility to them.", "74. Lastly, the applicants state that 89% of the students of the 7 th school are Romani, which would not distinguish it much from the 12 th school, whose percentage is 100%. However, the 7 th school would be provided with a sufficient number of teachers and classes, which would never have been the case of the 12 th school.", "2. The Court’s findings", "a) General principles", "75. The Court recalls that, according to its well-established case law, the right to education, as provided for in the first sentence of Article 2 of Protocol No. 1 of the Convention, guarantees to everyone within the jurisdiction of contracting States “a right of access to existing educational establishments at any given moment”, access to which forms only part of this fundamental right. In order for this right to “produce useful effects, it is still necessary, in particular, that the individual who holds it should have the opportunity to benefit from the education provided, that is to say, the right to obtain, in accordance with the rules in force in each State, in one form or another, the official recognition of studies completed” ( Case “concerning certain aspects of the linguistic system of education in Belgium”, 23 July 1968, §§ 3-5, Series A No. 6, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A No. 23; Leyla Şahin v. Turkey [GC], no. 44774/98, § 152, ECHR 2005-XI, Oršuš and others, cited above, § 146 and Catan and others v. Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, § 137, 19 October 2012.", "76. In the judgment Oršuš and others (cited above), the Court stressed that even though this affair concerned the individual situation of applicants, it could not disregard that they belonged to the Roma minority and that it would take into account of its analysis the fact that, by its history, the Roma minority was a particular type of vulnerable minority in need of special protection. The Court also recalls that, as evident by the activities of many European and international bodies and the recommendations of the bodies of the Council of Europe, this protection also extends to the field of education. As indicated in previous cases, the vulnerability of Roma/Gypsies means giving special attention to their needs and to their own way of life, both in the regulatory framework under consideration and when making decisions in particular cases ( Oršuš and others, cited above, §§ 147-148).", "77. The Court also recalls that Article 13 does not exist autonomously, but that it plays an important role in complementing other provisions of the Convention and its Protocols as it protects individuals placed in analogous situations against all discrimination in the enjoyment of rights outlined in these other provisions. As soon as it has found a breach of a normative clause of the Convention, invoked before it both as such and in conjunction with Article 14, it does not in general need to examine the case as well from the angle of Article 14, but it is not so if a clear unequal treatment in the enjoyment of the right in question is a fundamental aspect of the dispute ( Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A No. 45, Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III, and Timichev v. Russia, no. 55762/00 and 55974/00, § 53, ECHR 2005-XII).", "78. The Court recalls too that it has also admitted that discrimination which may be against the Convention could result from a factual situation ( Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006-VIII). When an applicant produces a prima facie case of discrimination pertaining to the effect of a measure or practice, the burden of proof is incumbent upon the respondent State, which must show that the difference of treatment is justified ( D.H. and others v. the Czech Republic, cited above, §§ 180 and 189).", "b) Application of the principles to the present case", "79. In this case, the applicants complain of discrimination relative to their right to education in that, despite the conclusions of the Court in the judgment Sampanis and others v. Greece (cited above), they had continued to be placed, purely based on their ethnicity, during the 2008-2009 and 2009-2010 school years, in a school which had been separated from schools attended by non-Roma students and whose state would have effectively precluded all effective schooling.", "80. The Court notes at the outset that it is confronted by divergent versions of certain facts, particularly those which concern the general state of the 12 th school and the individual situations of certain students.", "81. The Court recalls that it remains free to make its own assessment in light of all the evidence at its disposal. It also notes that, although several facts remain uncertain, there is sufficient objective factual evidence from the documents submitted by the parties to enable it to appreciate the case (see, mutatis mutandis, Sampanis and others, cited above, § 75).", "82. The Court will examine, in the first place, whether or not the facts of the case suggest the existence of a difference of treatment. If so, it will investigate whether the alleged distinction was based on an objective and reasonable basis.", "i. Whether there was a difference in treatment", "83. The Court recalls that, in the Sampanis and others v. Greece judgment (cited above), it concluded that the evidence presented by the applicants and those in the record of the case gave rise to a strong presumption of discrimination against those concerned: this resulted from consistent practice, during the 2004-2005 school year, starting with the refusal to enrol Roma students in school and then their placement in special classes held in an annex of the main building of the 10 th primary school, combined with a number of incidents of racist character in the school at the instigation of parents of non-Roma children ( Sampanis and others, cited above, §§ 81-83). In this regard, the Court notes that the meeting of 11 March 2008, organised at the 10 th school by the Ombudsman of the Republic in order to convince the parents of non-Roma students to renounce their opposition to the integration of Roma students in ordinary classes did not succeed due to a hostile intervention by the mayor of Aspropyrgos. It was not even possible to enrol into ordinary classes the three Roma students who had achieved a sufficient level of education.", "84. However, the Court notes that, for the 2008-2009 and 2009-2010 school years which are at issue in the current case, the situation has not changed much. Admittedly, the special preparatory classes in the annex of the 10 th school had been removed and the ministers of Education and Finance had created, on 25 January 2008, the 12 th primary school of Aspropyrgos, which was intended to admit indistinctively Roma and non-Roma students.", "85. However, certain elements are of a nature to demonstrate that the 12 th school, despite the school authorities’ intentions, had remained a school reserved for Roma students.", "86. The Court also notes that Roma students of the Psari neighbourhood continued to attend, during the entire period in question, the premises of the annex of the 10 th school of Aspropyrgos, re-named the 12 th primary school of Aspropyrgos.", "87. The Court raises that, as soon as the authorities had set them on 8 April 2008, the boundaries of the zone of recruitment for the 12 th school, the same zone was attributed to the 9 th, 10 th and 12 th schools. However, none of the non-Roma children living within this area were registered at the 12 th school, neither for the 2008-2009 school year nor for the 2009-2010 school year.", "88. This is also the conclusion of the Ombudsman himself, who is actively implicated in the search for a solution for the Romani children of Aspropyrgos’ education by multiplying the steps with the authorities. In his letter of 8 December 2008 to the prefect, he described the 12 th school as a “ghetto school”, noting that all the students enrolled for the 2008-2009 school year were Romani while Presidential Decree No. 201/1998 provided that the transfer of all students living in the area of recruitment of a school to this school was mandatory and should be carried out even in the absence of a parental request. He added that the refusal to authorise the merger of the 12 th and 11 th schools constituted unjustified discrimination against Roma students in that it would have prevented them from integrating into the cultural environment of the region. The Ombudsman was here referring to the fact that on 17 October 2008, the prefect of West Attica refused to authorise the merger of the 12 th and 11 th schools on the grounds that he wished to avoid social, cultural and educational problems of order.", "89. The Court recalls thus that there had been no notable change in the facts at the origin of the Sampanis and others judgment, apart from the Ministry of Education’s stated intention to integrate Roma students into the ordinary education system, manifested by the creation of the 12 th school, which, for various reasons of municipal and prefectural policy, was unable to function as planned, which had the effect of perpetuating a difference in treatment regarding the Roma community from the area of Psari. Thus, there exists a prima facie case of discrimination.", "ii. Whether the difference in treatment had an objective and reasonable justification", "90. According to the Court’s case law, a difference in treatment is discriminatory if it “lacks objective and reasonable justification”, which is to say if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the end envisaged (see, among many others, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I, and D.H. and others v. the Czech Republic, cited above, § 196). In the case of a difference of treatment based on race, colour, or ethnic origin, the notion of objective and reasonable difference must be interpreted in a manner as strict as possible ( Sampanis and others, cited above, § 84).", "91. The schooling of Roma children in satisfactory conditions raises great difficulties in a number of European states. However, in their efforts to reach social and educational integration of a disadvantaged group such as the Roma, the national authorities face numerous difficulties, notably due to the cultural particularities of this minority and to a certain hostility manifested by the parents of non-Roma children (see Oršuš and others cited above, § 180). It is not easy to choose the best way to solve the learning difficulties of children who do not have sufficient knowledge of the language in which the education is provided. This implies a difficult exercise in balancing the various interests at stake. In terms of the definition and organisation of the curriculum, it is largely a problem of opportunity on which the Court is not required to rule ( D.H. and others, cited above, § 205, and Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996-VI).", "92. Despite the particularities and factual differences which each case may present, these considerations also apply in this case.", "93. In the first place, the Court notes that the 12 th school of Aspropyrgos, meant to welcome Roma and non-Roma student indistinctively, was created in January 2—8 on the premises of the 10 th school where previously, preparatory classes were held and attended exclusively by Roma students. However, only Roma students attended it in the 2008-2009 and 2009-2010 school years.", "94. In second place, it recalls that the school was damaged during summer break in 2008. Shortly before the beginning of the school year, on 8 September 2008, the director of the 12 th school informed the regional school authorities and the Ministry of Education in detail of the damage cause and concluded that this establishment was not in a state to welcome students. He affirmed that the facilities could not meet the basic needs of a school and that it put the safety of students and teaching staff in peril (paragraph 15 above).", "95. Several times between September 2008 and June 2009, the director of the 12 th school wrote letters to the regional educational authorities, to the prefect and to the mayor of Aspropyrgos to alert them of the deficiencies the school faced, the construction of a covered playground, the installation of heating and additional toilets, the construction of two additional classrooms and the creation of a kindergarten. On 11 June 2009, the director of the 12 th school had tried in vain to bring to the attention of the Ministry of Education of the fact that school books were inappropriate for the Roma, whose maternal language was not Greek (paragraph 27 above).", "96. On 23 July 2009, after the end of the 2008-2009 school year, the Ombudsman wrote to the Ministry of Education to inform it that the mayor of Aspropyrgos had ignored an invitation from the Ministry to do what is necessary to remedy the current state of the 12 th school (paragraph 28 above).", "97. There are thus several elements establishing that, during the 2008-2009 school year, the students of the 12 th school had been held in material conditions that rendered it, if not impossible, at least very difficult, to pursue their schooling. Scheduled for a temporary period at the time, due to a lack of available space, the schooling of children in the annex of the building of the 10 th school continued during the 2009-2010 school year.", "98. In third place, the Court noted that on 8 October 2008, the regional school authorities of the Ministry of Education had elaborated a plan in order to merge the 11 th and 12 th schools so that the 12 th school would lose its character of a “ghetto school”. However, the mayor of the Aspropyrgos and the prefect of West Attica refused to authorise such a merger out of worries of new incidents on the part of parents of non-Roma students of the 11 th school (paragraphs 20 and 28 above). Moreover, in his letter of 26 September 2008 to the Minister of Education, the mayor affirmed that segregation of Roma students and other students had become a necessity which could not be circumvented, as the “Gypsies had chosen to live in garbage dumps of their own creation” and to “engage in illegal activities”. He concluded that their students could not, as a result, “demand to share the same classrooms as other students of Aspropyrgos” (paragraph 19 above).", "99. The Court states additionally that the Ministry of Education did not respond to the applicants’ letters of 20 May and of 20 July 2009 asking him to authorise Roma students to attend the 10 th school and inviting him to establish a school programme specially created for their needs (paragraph 26 above).", "100. Added to this is the attitude of the municipal and prefectural authorities who, for fear of provoking new incidents from the local population hostile to the Roma, remained inactive in response to calls from the school director and the Ombudsman requesting that Roma students be integrated into ordinary schools and benefit from courses adapted to their educational and linguistic level.", "101. As for the 2009-2010 school year, the Court notes that, even though all the minor applicants apart from four (paragraph 40 above) had enrolled in the school with the assistance of their representative before the Court, a large number of them had stopped attending classes during the year. Given the way in which the school had operated during the 2008-2009 school year in the absence of any measure by the State or local authorities to improve the situation, the Court cannot conclude that the Roma students or their parents are simply disinterested in the pursuit of education.", "102. In these circumstances and in view of the fact that it had not been possible to enrol in ordinary classes, three Roma students of the 12 th school who had attained a sufficient level of education to integrate into the 10 th school (paragraph 9 above), the Court considers it not necessary to examine the individual situation of minor applicants and to pronounce on their diligence, on the significance of the terms “sufficient” or “occasional” education or on the rate of absenteeism, as the parties do. In light of its conclusions on the 2008-2009 school year, the Court does not consider it necessary also to examine the case of the first three applicants mentioned in paragraph 40 for the 2009-2010 school year. However, the Court notes that no problem arises for Paraskevi Sampani, who had completed his primary education in 2008 in another school.", "103. It thus appears that the measures taken for the schooling of Roma children in the area of Psari in Aspropyrgos were not accompanied by sufficient guarantees allowing sufficient guarantees by the State, in the exercise of its margin of judgment in the domain of education, the particular needs of these children as members of a disadvantaged group (see, mutatis mutandis, Oršuš and others, cited above, § 182). Moreover, the Court cannot but find that the Government does not provide a convincing explanation as to why not a single non-Roma student was enrolled at the 12 th school, apart from a vague mention that they were “registered elsewhere”.", "104. The Court considers that, in the circumstances of the present case, the conditions in which the 12 th school had functioned during the 2008-2009 and 2009-2010 school year ultimately resulted in discriminating against the applicants again.", "105. Accordingly, there has been a violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 in respect of the applicants.", "II. ON THE ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "106. The applicants complain of the absence of an effective remedy through which they could formulate their grievances on the grounds of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 of the Convention.", "107. The Court states that this grievance is not manifestly ill-founded in the sense of Article 35 § 3 (a) of the Convention. It recalls also that it faces no other grounds of inadmissibility. It must therefore be declared admissible.", "108. However, the Court considers, in light of its findings related to the objection of non-exhaustion of domestic remedies, that it is not necessary to examine this complaint separately.", "III. ON THE OTHER ALLEGED VIOLATIONS", "109. Invoking Article 34 of the Convention, the applicants complain of not having access to all the official documents concerning their school. Invoking Article 46 of the Convention, they complain also of the authorities’ refusal to comply with the judgment Sampanis and others v. Greece (cited above).", "110. With regards to the first grievance, the Court considers that it is not substantiated and that it is not sufficient to establish how the applicants were prevented from exercising their right of individual petition.", "111. As for the second grievance, the Court reiterates that the respondent State remains free, under the supervision of the Committee of Ministers, to choose the means to acquit itself of its legal obligation with regard to Article 46 of the Convention as long as these means are compatible with the conclusions contained in the Court’s judgment. For its part, the Court would not assume any role in this dialogue. Consequently, it would not consider that a State had violated the Convention because it had not taken one or another of these measures in the execution of one of its judgments. Further, the Court does not have jurisdiction to examine if one contracting party has complied with the obligations under one of its judgments. Thus, it refuses to examine the grievances relative to the failure of the State to execute its judgments. The role of the Committee of Ministers in this domain, however, does not mean that all the measures taken by the respondent State in order to remedy the violation found by the Court cannot raise a new problem, not decided by the judgment, and thus, the subject of a new application which the Court might have to recognise ( Egmez v. Cyprus (no. 2) (dec.), no. 12214/07, §§ 48-51, 18 September 2012).", "112. In this case, the Court notes that, at the time that the application was introduced on 7 October 2009, and from the communication of it on 25 March 2011, the question of the execution of the judgment cited above was still bending before the Committee of Ministers. On 14 September 2011, the Committee of Ministers decided to close the examination of the case after having gained the knowledge of the individual and general measures taken by the government in the case of the execution of the judgment, noting that almost all the children of the applicants had been enrolled in the 12 th primary school of Aspropyrgos and that the State had taken satisfactory measures concerning in general the enrolment and education of Roma children (see paragraph 44 above). With regard to this finding by the Committee of Ministers, the Court is not called upon, in the context of the examination of the present application as presented by the applicants, to decide upon the questions of the execution of the judgment Sampanis and others cited above.", "113. It follows that this part of the application must be rejected, in application of Article 35 §§ 1, 3 (a) and 4 of the Convention.", "IV. ON THE APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION", "A. Article 41", "114. In terms of Article 41 of the Convention,", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party”.", "1. Damages", "115. The applicants each claim a sum of 9,000 euros (EUR) for non-pecuniary damage.", "116. The Government considers that the finding of a violation would suffice to compensate for the potential non-pecuniary damage of the applicants. It considers also that the sum claimed is exorbitant, especially since it would be claimed for each of the applicants and not for each family or pupil. Finally, it states that the new public accounting procedures require that the beneficiary of a payment made from public accounts has a concrete and valid banking and fiscal identity. Thus, in the event that the Court awards amounts pursuant to Article 41, the names of the persons entitled to compensation should, according to the Government, be supplemented by the indication of the place of residence, the tax register and the bank account.", "117. The Court considers that the applicants have without doubt been subjected to non-pecuniary damage – in particular the fact of the frustration due to the indirect discrimination to which they were victim – and that the finding of the violation of the Convention does not constitute a sufficient reparation in this respect. It however judges the amount claimed by the interested to be excessive. Judging equitably, it allocates to each applicant family a sum of 1,000 EUR in the name of non-pecuniary damage.", "2. Costs and expenses", "118. The applicants also ask for 12,000 EUR for the costs and expenses incurred in the proceedings before the domestic authorities (administrative authorities, competent national education authorities, the Ombudsman, the criminal court prosecutor) and those brought before the Court. They evaluate the working time of their representative on this case at 120 hours, for a fee of 100 EUR per hour. They produce in this respect a document detailing the time that their representative devoted to drafting the various pleadings and observations filed with the domestic authorities and the Court. They ask that the amount which would be granted be paid directly into the account of their representative.", "119. The Government replied that the proceedings before the domestic authorities did not entail costs. As to the fees of the applicants’ representative, the Government notes that non-governmental organisations, like the Greek Helsinki Monitor, usually provide their legal aid free of charge and that, in the event that they receive fees as lawyers, they must produce supporting documents. It states that it cannot accept the documents produced by the applicants, which do not meet the criteria of the law relative to the receipts drawn up by lawyers and which provides neither the necessity nor the reasonableness of the sums claimed.", "120. According to the Court’s jurisprudence, an applicant can only obtain reimbursement of costs and expenses insofar as their reality, their necessity, and their reasonableness of their rate are established. The Court recalls also that in the judgment Sampanis and others v. Greece (cited above), it awarded the Greek Helsinki Monitor, which also represented the applicants in this case, a sum for costs and expenses, as it did in other cases brought by that organisation (see for example, Vihos v. Greece, no. 34692/08, 10 February 2011). In this case, it notes that the fact that the document produced by the applicants’ representative does not meet the criteria of receipts established by lawyers cannot obscure the fact that the Greek Helsinki Monitor provided the necessary legal assistance to the applicants (see, mutatis mutandis, Patsuria v. Georgia, no. 30779/04, § 103, 6 November 2007). In light of the documents available to it and with regard to its case law, the Court considers it reasonable to award the applicants jointly the sum of EUR 2,000. It also welcomes their request concerning the direct payment of this sum to the bank account of the representative of the interested.", "3. Default interest", "121. The Court considers it appropriate to model the default interest rate on the interest rate of the European Central Bank’s marginal lending facility by three percentage points.", "B. Article 46", "122. The applicants invite the Court to indicate to the Government the measures to be taken for the purposes of Article 46 of the Convention, measures which, in their view, should consist in the merger of the 11 th and 12 th schools. They state in this regard that, since their expulsion from the area of Psari and their settling in the area of Sofo, in August 2010, they have belonged to the 11 th school. They add that the government should also provide “Second Chance Courses” in the 11 th school for those who are no longer able to enrol in elementary school due to their age.", "123. The Government maintains that the demands of the application of Article 46 in this case are unfounded, as there were no structural problems underlying the applicants’ complaints. In this regard, he states, first, that in its judgment of 8 July 2008, the Court found that the national system of education took into account the way of life of Roma children and facilitated their enrolment in school and, on the other hand, that the Committee of Ministers, in carrying out the aforementioned judgment, recognised that Greece would have adopted the general measures necessary to integrate Roma children into the national education system.", "124. The Court recalls that a finding of a violation in its judgments is essentially declaratory and that, by Article 46 of the Convention, the High Contracting Parties having undertaken to abide by the judgments of the Court in the cases to which they are parties, the Committee of Ministers is responsible for supervising its execution. The role of the Committee of Ministers in this area does not mean, however, that the measures taken by a respondent State to remedy the violation found by the Court cannot raise a new problem, not decided upon by the judgment, then becomes the subject of a new application which the Court might have to recognise. ( Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], NO. 32772/02, §§ 62-63, 30 June 2009 and Egmez, § 51, cited above).", "125. Moreover, in the specific context of a continuing violation of an article of the Convention following a judgment in which the Court found a violation of a right for a certain period, it is not unusual that the Court examines a second complaint concerning the violation of the same right for a subsequent period. In such cases, the “new question” arises from the persistence of the violation which had been the basis for the Court’s original decision. The Court’s examination will, however, be limited to the new periods and new complaints invoked in this respect ( Egmez cited above, § 53).", "126. Surrounding the surveillance of the execution of the Sampanis and others judgment cited above, the Committee of Ministers found that the special preparatory classes located in an annex of the 10 th schools had been removed, that the authorities had adopted measures to facilitate the enrolment of the applicants’ children in an ordinary school and that a new ordinary school which had been meant to welcome Roma and non-Roma students alike had been created (the 12 th ) (paragraph 44 above).", "127. However, these measures taken by the Greek authorities concerned the execution of the Sampanis and others judgment cited above. They do not cover the new facts and new questions raised by the current application and which gave rise to new alleged violations and found by the current judgment. Moreover, the Resolution CM/resDH(2011)119 (paragraph 44 above), states that the decisions of the Committee of Ministers in virtue of Article 46 § 2 of the Convention do not presuppose the Court’s examination of other affairs currently pending before it.", "128. With regard to the circumstances of the case, the Court considers itself thus competent to assist the respondent State to fulfil its obligations under Article 46 and to indicate certain concrete measures, advocated by the applicants, but also by the Governments in its observations in response, of a nature to put an end to the violation found: thus, those applicants who are still of school age could be enrolled by the director of primary education of West Attica in another public school and those who have reached legal age can enrol in “second chance schools” or even schools for adults, set up by the Ministry of Education under the program of long-term education." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1994 and 1992 respectively and live in Nyíregyháza.", "A. General background", "6. The applicants are two young Roma men, who were diagnosed as having mental disabilities. As a result of these diagnoses, the applicants were educated at the Göllesz Viktor Remedial Primary and Vocational School, a remedial school (“special educational programme ” or “special” school) in the city of Nyíregyháza, created for children with mental disabilities.", "7. The proportion of Roma students at the Göllesz Viktor Remedial Primary and Vocational School was 40 to 50% in the last ten years. Statistical data indicate that in 2007 Roma represented 8.7% of the total number of pupils attending primary school in Nyíregyháza. In 1993, the last year when ethnic data were officially collected in public education in Hungary, at least 42% of the children in special educational programme were of Roma origin according to official estimates, though they represented only 8.22% of the total student body.", "8. According to statistical data in the Statistical Yearbook of Education, in 2007/2008 only 0.4– 0.6% of students with special needs had the opportunity to participate in integrated mainstream secondary education providing the Baccalaureate. Although one of the second applicant ’ s classmates was admitted to a secondary vocational school offering the Baccalaureate, neither of the applicants was enrolled in a Baccalaureate programme, which limited their access to higher education and employment. The first applicant was unable to follow a course to become a dance teacher, the career of his father; instead, he received special vocational training to become a baker. The second applicant continued his studies in a mainstream secondary vocational school which did not offer the Baccalaureate, and was unable to pursue his ambition to become a car mechanic.", "B. Societal context", "9. Scholarly literature suggests that the systemic misdiagnosis of Roma children as mentally disabled has been a tool to segregate Roma children from non-Roma children in the Hungarian public school system since at least the 1970s.", "10. The national Gypsy research in 1971 made it clear that a major obstacle to the education of Gypsy children was the existence of remedial (special) schools. In 1974/1975, 11.7% of Gypsy children attended special schools and classes. Due to the steady increase in Gypsy enrolment, by 1985/1986 their proportion had reached 17.5%, whereas only 2% of majority Hungarian students studied in special schools and classes. Eight grades finished in special education amounted to six grades in a normal school. Between 1972 and 1975, almost 50% of the lower grade special school students in Budapest were re - tested. The most significant result of the Budapest review was that if the borderline between sound and disabled mental abilities were set at IQ 70, the figure recommended by the World Health Organisation ( WHO ), then only 49.3% of students participating in special education qualified as mentally disabled, whereas 50.7% qualified as normal, of whom 12% had average intellect and 38.7% were borderline cases, that is, on the brink of mental retardation. However, only 7% were qualified as having average mental abilities through a complex evaluation. The complex evaluation qualified children whose test results suggested otherwise as intellectually disabled. In order to come to this conclusion, the category of familial intellectual disability was introduced, a notion distinct from pathological mental disability.", "11. According to the Hungarian authorities, in 2004, 5.3% of primary school children were mentally disabled in Hungary, whereas this ratio stood at 2.5% in the European Union. In the last decade the rate of mentally disabled children has been continuously increasing in Hungary, especially in the ‘ mild mental disability ’ and ‘ other disability ’ categories. Children with disadvantaged background, especially Roma ones, are significantly over-represented amongst children with a disability.", "12. The shortcomings of the diagnostic system were acknowledged by State authorities when in 2003 the Ministry of Education launched a programme entitled “Out of the Back Bench” with the stated aim of reviewing children and, after re-diagnosis, channelling those back to mainstream school who had been misdiagnosed. Through the programme, 2,100 children were reassessed and 11% of the re-diagnosed children were channelled back to normal school. In Szabolcs-Szatmár-Bereg County, where the applicants are from, this rate was 16%.", "13. Part of the reason for the fact that so many children were considered disabled was that the definition of special educational needs in Act no. LXXIX of 1993 on Public Education (“the PEA”) and the definition of mental disability prior to 1 September 2003 (see paragraph 63 below) went beyond mental disability and included educational challenge, dyslexia and behavioural problems.", "14. In 2007, the National Expert and Rehabilitation Committee (NERC) explained that an IQ between 70 and 85 represented a borderline intellect. A child in this range of IQ could have serious and persistent learning impairment. The expert evaluating each case had to assess what factors tilted the balance towards mental disability or sound mental ability. For example, weak abilities of abstraction or associative learning could indicate mental disability even above IQ 70. “Borderline intellect” was not on its own considered as mental retardation or a cause for placement in special school.", "15. In 2004 the Minister of Education requested the expert panels to stop transferring children with scores above IQ 70 to special schools. That year, a new protocol and new standardised proceedings were adopted, calling for the disadvantaged situation of the child to be taken into account. If a child spoke the language of an ethnic minority, for instance, he or she could not be examined using verbal tests in Hungarian. Still, inequalities persisted. The greatest difference between Roma and non-Roma children occurred in a performance test, the so-called “Mosaic Test ”. One explanation for this is that Roma children have less experience with toys and games where units from bits or pictures from pieces (e.g. toy cubes with different pictures on each side, or puzzles, etc.) had to be assembled.", "C. Mr Horváth ’ s assessments", "16. Mr Horváth started elementary education in the Göllesz Viktor Remedial Primary and Vocational School on the basis of the recommendation of the Expert and Rehabilitation Panel of Szabolcs-Szatmár-Bereg County (“the Expert Panel”). His examination was requested on 19 April 2001 by the nursery he was attending at that time. The nursery claimed that his mental and social abilities were lower than normal for his age, which showed in his sense of logic, drafting skills and communication. He spent very little time in the nursery, as he was sick most of the time. This, although a common cause for bad performance in tests, was not taken into account when his results were assessed.", "17. The examination requested by the nursery was performed on 17 May 2001. In addition to the observation of his behaviour, his abilities (verbal, counting, cognitive, attention/concentration, visuo-motor coordination) and his performance, the following IQ tests were done : “Budapest Binet Test” – IQ 64; “Coloured Raven Test” – IQ 83; “Goodenough ‘ draw-a-person ’ Test ” – DQ 67. The Expert Panel did not elaborate in its opinion on the causes of the disparate results.", "18. In its opinion, the Expert Panel diagnosed Mr Horváth with “mild mental disability”, of which the origin was declared unknown. The diagnosis stated that Mr Horváth was “two and a half years behind normal”, together with an immature central nervous system. Therefore, he was channelled to remedial school. As opposed to the WHO value of IQ 70, expert panels in Hungary applied, according to the Ministry of National Resources, IQ 86 as a border value between sound intellectual ability and mild mental disability.", "19. Mr Horváth ’ s parents had been told by the Expert Panel even before the examination took place that he was going to be placed in a remedial school and they had been asked to sign the expert opinion before the examination took place.", "20. On 3 December 2002 the Expert Panel re-examined Mr Horváth. It found that there was no development in his abilities, and reported that he was still suffering from mild mental disability.", "21. On 28 April 2005 the Expert Panel again examined Mr Horváth. According to this examination, his “ Raven Test ” result was IQ 61. Therefore the Expert Panel declared that his status had not changed and upheld its previous opinion.", "22. On 20 March 2007 another examination took place. This time, Mr Horváth ’ s “ Raven Test ” value was IQ 71. The Expert Panel noted that he had better knowledge than this test score reflected, had good results at school in 2006 and 2007, was integrated in his school system and able to study individually, had no impediment in speech and only needed some reassurance. In addition, it noted that he was active in classes, hard-working and complied with all the requirements of the curriculum. Noting that Mr Horváth studied in a remedial school, the Expert Panel again diagnosed him with mild mental disability and special educational needs. Therefore it upheld his placement in remedial school.", "23. Mr Horváth ’ s parents were not invited to participate in the diagnostic assessments. His father signed only the opinion of 17 May 2001. It is unclear if the parents were provided with information about the procedure and their respective rights, including a right to appeal, or if a copy of the opinion was given to them. His father accompanied Mr Horváth to the first examination but was not allowed to attend the examination itself. The parents were told the result but no explanation about the consequences was given.", "24. On 26 September and 2 October 2008 Mr Horváth was re-examined by the NERC as ordered by the first instance court (see paragraph 38 below). This opinion stated that the applicant had “mild mental disability” although the causes of the disability could not be established.", "D. Mr Kiss ’ s assessments", "25. After spending seven months in nursery, Mr Kiss started elementary education in September 1999 in a mainstream school, Primary School No. 13 located in a Roma settlement of Nyíregyháza. In its decision of 4 January 1999, the local pedagogical advisory service concluded that he had learning difficulties “deriving from his disadvantaged social and cultural background” and advised him to be educated under a special programme but in a mainstream school. On 14 December 1999 the school requested an expert diagnosis based on his results in the first quarter of the school year, claiming that he had poor results, was often tired, his attention was volatile and his vocabulary poor. His IQ then measured 73.", "26. On 15 May 2000 the Expert Panel diagnosed Mr Kiss with “mild mental disability”. According to the “ Budapest Binet Test ”, his IQ was 63, and he scored IQ 83 in the “ Raven Test ”. Relying on the results, the Expert Panel arranged for Mr Kiss to be placed at a school for children with mild mental disabilities. As rehabilitation, the Expert Panel proposed that his concentration and analytical-synthetical ability should be developed. The Panel ’ s opinion did not contain any explanation for the discrepancies between Mr Kiss ’ s IQ results in the various tests.", "27. Mr Kiss ’ s parents objected to the placement of their child in the remedial school and insisted that he should be educated in a mainstream school, but in vain. They were not informed of their right to appeal against the Panel ’ s decision. Mr Kiss was then placed in Göllesz Viktor Remedial Primary and Vocational School.", "28. During his studies, Mr Kiss won numerous competitions, including a poetry reading contest and sports competitions, and he was an A student until 7th grade. However, his teacher told him that he could not continue his studies to become a car mechanic as he intended to, because as a remedial school pupil, he could only choose between training courses offered by a special vocational school.", "29. The Expert Panel subsequently re-assessed Mr Kiss twice, on 14 December 2002 and 27 April 2005. On the latter occasion the Expert Panel noted that, despite the fact that he had achieved good results at school, his analytical thinking was underdeveloped. His IQ based on the “ Raven Test ” scored 71, yet the Expert Panel stated that he needed to be educated further at the remedial school.", "30. During the court procedure in the case (see below), the first-instance court ordered that Mr Kiss be examined by the NERC. According to the expert opinion of 20 November 2008, his mental capacity was normal, he was not mentally disabled and his SQ (social quotient) score was 90, which excluded mental disability. However, he had significant deficiencies with regard to acquired knowledge and had a learning impairment. As with the first applicant, the NERC found that the Expert Panel ’ s decision should have noted that socio-cultural factors had played a significant role in the shaping of their status from an early age, but in fact these factors and Mr Kiss ’ s disadvantaged situation were not taken into account.", "The NERC concluded that both applicants were provided with education adequate to their abilities.", "E. Review of the applicants ’ intellectual ability by independent experts", "31. In August 2005 both applicants participated in a summer camp where the testing of 61 children with ‘ special educational needs ’ took place. The testing was carried out by independent experts.", "32. Both applicants were assessed with various tests. With regard to Mr Horváth, the experts noted that his “ Raven Test ” (IQ 83) was under the average, but did not correspond to the “mentally disabled” score; therefore, he was not mentally disabled. His “Bender B Test” referred to immature nervous system potentially causing behavioural problems and problems in studying but he was not considered mentally disabled or unfit for an integrated mainstream class.", "33. Mr Kiss ’ s “ Raven Test ” score was IQ 90, his “MAVGYI-R Test” score was IQ 79, and his verbal intelligence was 91. According to the assessment, he suffered from immaturity of the nervous system and dyslexia. The experts noted that he was sound of mind and could be educated in a school with a normal curriculum. They suggested immediate intervention by the authorities in order to place him into a mainstream school and to provide him with appropriate education. The experts also suggested a thorough pedagogical examination and the development of a subsequent individual learning plan with pedagogical and psychological help. They noted that he had to catch up with his studies in order to reduce the deficiencies he had as a result of studying under a lower curriculum.", "34. The experts noted that the diagnostic methods applied should be reviewed, and that Roma children could have performed better in the tests if those had not been designed for children belonging to the ethnic majority. They stressed that the “ Raven Test ” measured intelligence only in a narrow margin and therefore provided less data with regard to intelligence. The experts further recommended that the “ MAVGYI-R ” child intelligence test should be reviewed and updated as it was outmoded and because oral tests were culturally biased and poorly compatible with the present lifestyle and knowledge of children. The experts also noted that the intelligence tests had a close correlation with school qualification; therefore education in a remedial class might significantly influence the results of an intelligence test of a 13/14-year-old child.", "The NERC found the independent experts ’ conclusions open to doubt.", "F. First-instance court proceedings", "35. On 13 November 2006 the applicants filed a claim for damages with the Szabolcs-Szatmár-Bereg County Regional Court, requesting the court to establish a violation of the principle of equal treatment amounting to a violation of their personality rights under section 76 of the Civil Code and section 77(3) of the PEA. The action was directed against the Expert Panel, the Szabolcs-Szatmár-Bereg County Council and the Göllesz Viktor Remedial Primary and Vocational School.", "36. The applicants claimed that the Expert Panel had discriminated against them and misdiagnosed them as being “mildly mentally disabled” on the basis of their ethnicity, social and economic background, and had subsequently ordered them to be educated in a special school, although they had normal abilities. They asserted that the expert panels were free to choose the tests applied by them, and it was well-known among experts that some tests were culturally biased and led to misdiagnosis of disadvantaged children, especially Roma ones. This systemic error originated in the flawed diagnostic system itself, which did not take into account the social or cultural background of Roma children, was as such culturally biased, and therefore led to the misdiagnosis of Roma children. They claimed that it was the responsibility of the experts who were required by the law to be experienced in the field of mental disabilities and thus obliged to know the symptoms of such disabilities to ensure that only children with real mental disability were educated in special/disabled/special educational needs classes. In addition, and in violation of the respective rules of procedure, the applicants ’ parents had not been informed of the Panel ’ s procedure or its consequences or of their rights to participate in the proceedings and to appeal against the decisions in question, so their constitutional right to a remedy was violated.", "37. The applicants further asserted that the County Council had failed effectively to control the Expert Panel. They also claimed that the teachers working at the Remedial School should have noticed that they were of normal abilities.", "38. The Regional Court ordered the applicants to be examined by the NERC.", "39. On 27 May 2009 the Regional Court found that the aggregate of the respondents ’ handlings of the applicants ’ education had amounted to a violation of their rights to equal treatment and education and therefore ordered them, jointly and severally, to pay 1,000,000 Hungarian forints (HUF) in damages to each applicant.", "The court explained that it was called on to investigate whether the respondents had complied with the Constitution and the PEA, that is, ensured the applicants ’ civil rights without any discrimination, promoted the realisation of equality before the law with positive measures aiming to eliminate their inequalities of opportunity, and provided them with education in accordance with their abilities. It reasoned that – while the statutory definition of “special needs” had been amended several times in the relevant period – the relevant regulations clearly stipulated that the expert panels should individualise each case, decide on possible special needs in each case according to the needs and circumstances of the individual child, identify the reasons underlying any special needs, and establish specific support services which a child needed according to the extent of disability.", "40. The court held that this kind of individualisation was lacking with regard to the applicants ’ diagnoses and that the Expert Panel had failed to identify those specific professional services that would help the applicants in their education. It had failed to establish during the applicants ’ examination and re-examination the reasons for which they were in need of special education, and whether they needed that as a result of their behaviour or of organic or non-organic reasons.", "41. The court emphasised that the principle of equal treatment required that the Expert Panel decide whether children reaching school age might study in schools with a standard curriculum or in remedial schools with a special one. At the same time, the court noted that, in the present case, the operation of the Expert Panel was stalled due to ongoing restructuring and the low number of professional and other staff. Therefore, the Expert Panel could not perform its duty of continuous control examinations.", "42. Moreover, in the court ’ s view, the County Council had failed to ensure effective control over the Expert Panel and therefore failed to note that the Panel had not informed the parents appropriately. In addition, the County Council had not ensured that the expert decisions were individualised according to the law.", "Therefore, the respondents had violated the applicants ’ right to equal treatment.", "G. Appeal procedure", "43. The Expert Panel did not appeal and so the above decision became final and enforceable with regard to it.", "On appeal by the Remedial School and the County Council, on 5 November 2009 the Debrecen Court of Appeal reversed the first - instance judgment and dismissed the applicants ’ claims against those respondents.", "44. The Court of Appeal accepted the Remedial School ’ s defence, namely that it had done no more than enrol the applicants according to the Expert Panel ’ s decision. It held that it was for the County Council to ensure effective control over the lawful operation of the Remedial School and the Expert Panel. An omission in this regard might establish the County Council ’ s liability, in particular because the parents ’ participatory rights had not been respected.", "45. The Court of Appeal further noted that, in order to prevent the misdiagnosis and consequent segregation of Roma children into remedial schools, there was a need, unfulfilled as yet, for the development of a new diagnostic testing system which should take into account the cultural, linguistic and social background of children. However, it held that the lack of appropriate diagnostic tools and the subsequent placement of the applicants into remedial schools did not have any connection to their ethnic origin, and therefore found no discrimination against the applicants, concluding that their personality rights had not been violated. In its view, the applicants had not suffered any damage as a result of the unlawful conduct of the respondents, since, according to the court-appointed experts ’ opinion, they had been educated in accordance with their mental abilities. That opinion effectively confirmed the Expert Panel ’ s decisions.", "The Court of Appeal ’ s judgment further contains the following passage:", "“Examining the – not at all comprehensive – amendments [of the PEA and the decrees on its implementation which occurred after 1 January 2007], it can be established on the one hand that those amendments were predominantly and evidently occasioned by the progress of related science, the researches and the results of surveys, and on the other hand that the following of legislative developments in this period was almost an impossible task for those applying the law.”", "H. Review proceedings", "46. The applicants subsequently submitted a petition for review to the Supreme Court. They argued that there was no national professional standard established with regard to the diagnostic system in Hungary. The well-known systemic errors of the diagnostic system, together with the disregard of the socially, culturally and linguistically disadvantaged background, had resulted in a disproportionately high number of Roma children diagnosed as having “mild mental disability”.", "47. The applicants requested the Supreme Court to establish, as an analogy with the case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV), the misdiagnosis of Roma children, that is, that the channelling of Roma children with normal mental abilities into remedial schools constituted discrimination. Such misdiagnosis represented direct – or alternatively indirect – discrimination, based on the ethnic, social and economic background of the applicants.", "48. The applicants further claimed that the Court of Appeal had wrongly concluded that there was no connection between the lack of appropriate diagnostic tools and the ethnic origin of the applicants. The fact that the tests themselves had no indication of ethnicity did not preclude that they forced a disproportionately high number of Roma children into a disadvantaged position in comparison with majority children. This practice amounted to a violation of section 9 (indirect discrimination) of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (“the ETA”). In addition, the fact that the experts had disregarded the specific social, cultural and language components when assessing the test results had led to direct discrimination in breach of section 8 of the ETA.", "49. The applicants also asserted that the respondents had not acted with due diligence in the circumstances, when – aware of the systemic error of the diagnostic system – they had failed to act according to international standards. In addition, Mr Kiss had been placed in a remedial school despite the explicit objection of the parents.", "50. The Supreme Court reviewed the second-instance judgment and found it partly unfounded. It stated as follows:", "“Considering the relevant provisions of the [ETA] and the [PEA] ... the Supreme Court has to decide whether the respondents discriminated against the plaintiffs on the basis of their ethnic, social, economic and cultural background, which resulted in the deprivation of their rights to be educated in accordance with their abilities and therefore their rights to equal treatment, and subsequently whether their personality rights have been violated.”", "51. The Supreme Court upheld the second-instance judgment with regard to the finding that the conduct of the Remedial School and the County Council had not violated the applicants ’ right to equal treatment, either in terms of direct or indirect discrimination.", "52. The Supreme Court further noted:", "“The systemic errors of the diagnostic system leading to misdiagnosis – regardless of its impact on the applicants – could not establish the respondents ’ liability ... The creation of an appropriate professional protocol which considers the special disadvantaged situation of Roma children and alleviates the systemic errors of the diagnostic system is the duty of the State.”", "53. The Supreme Court noted, however, that:", "“[T]he failure of the State to create such a professional protocol and [an eventual] violation of the applicants ’ human rights as a result of these systemic errors exceed the competence of the Supreme Court ... the applicants may seek to have a violation of their human rights established before the European Court of Human Rights. Therefore the Supreme Court has not decided on the merit of this issue.”", "54. The Supreme Court further examined whether the respondents ’ liability could be established under the general rules of tort liability regardless of the fact that it had not established a violation of the applicants ’ personality rights. It found no such liability in respect of the Remedial School. However, it observed that the Expert Panel ’ s handling of the parental rights had violated the relevant law (Ministerial Decree no. 14/1994. (VI.24.) MKM ). The County Council was found liable for this on account of its failure to supervise the legality, or to organise the supervision of the legality, of the functioning of the Expert Panel, as well as to put an end to the unlawful practice. The prejudice to the applicants was caused by their deprivation of the right to a remedy provided for by law and thereby of the theoretical chance of obtaining a more favourable assessment of their learning abilities.", "The Supreme Court consequently upheld the first-instance judgment with regard to the payment of HUF 1,000,000 in damages to each applicant by the Expert Panel, out of which sum the County Council was obliged to pay HUF 300,000, on account of its deficient control.", "This decision was served on 11 August 2010.", "I. Structures", "5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents ’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system.", "6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school.", "7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils.", "II. Curriculum and teaching material", "8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States.", "9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies.", "10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes. ”", "73. The Opinion on Hungary of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 22 September 2000 (CM(2000)165)), contains the following passage:", "“41. The Advisory Committee is deeply concerned about the well documented cases of improper treatment of Roma children in the field of education, notably through putting them in “special schools”, which are reserved ostensibly for mentally disabled children. The Advisory Committee stresses that placing children in such special schools should take place only when it is absolutely necessary on the basis of consistent, objective and comprehensive tests, which avoid the pitfalls of culturally biased testing. It considers it a positive step that the existence of and the need to address this unacceptable phenomenon has been recognised by the Ministry of Education. The Advisory Committee considers that the current situation is not compatible with Article 12(3) of the Framework Convention and must be remedied. ”", "74. The Follow-up Report on Hungary (2002-2005) of the Council of Europe Commissioner for Human Rights (29 March 2006 ) ( CommDH(2006)11) contains the following passages:", "“29. The Ministry of Education estimates that 95% of children of school age are registered school attenders. Alongside the normal schooling programme, there is special educational provision for children regarded as requiring special attention on account of handicap. While the maximum size of ordinary classes is 25 children, the special classes have a maximum of 13 so as to ensure quality instruction. The per-pupil grant which central government makes to local authorities is doubled for children in the special classes.", "30. Around 20% of Roma children continue to be assigned to special classes as against only 2% of Hungarian children. It should be noted that dyslexia is regarded as a serious difficulty requiring placement in a special class and that social marginality has sometimes also been treated as a handicap. As a result, whereas the proportion of handicapped children in Europe is 2.5%, it is 5.5% in Hungary on account of inappropriate or abusive placements of this kind.", "31. A protection mechanism has recently been introduced which requires parental consent for a child to be placed in a special class. In addition, the child must be tested without delay to assess its abilities. During the visit it was explained to the delegation that the files of 2,000 children regarded as handicapped had been thoroughly checked to make sure that placement in a special class was strictly necessary and to put right any abusive placements which authorities had made for financial or segregation reasons. Of the 2,000 children concerned, 10% had been returned to ordinary schooling after the check – evidence that close supervision of placements must continue.”", "75. The Report on Hungary of the European Commission against Racism and Intolerance (ECRI) (fourth monitoring cycle), adopted on 20 June 2008 and published on 24 February 2009, contains the following passages:", "“ 81. [Of ] the three levels of disabilities into which children in special schools may fall (“very serious” (requiring residential care), “medium-severe” or “mild ” disability ), the vast majority of children assessed as having a “mild disability” could, in the view of many NGOs, be integrated relatively easily in the ordinary school system: many children are misdiagnosed due to a failure to take due account of cultural differences or of the impact of socio-economic disadvantage on the child ’ s development, and others suffer from only very minor learning disabilities that do not warrant the child ’ s removal from the mainstream system. ECRI repeatedly heard that investments in teacher training should primarily be directed towards ensuring that teachers in the mainstream school system are equipped to deal with diverse, integrated classes, rather than towards perpetuating a system from which children, once streamed into it, are unlikely to break out, and which overwhelmingly results in low levels of educational achievement and a high risk of unemployment. Some actors have suggested that – bearing in mind that the best way of ensuring that children do not wrongly become trapped in special schools is to ensure that they are never sent down that track in the first place – the category of children with mild disabilities should simply be deleted from the Education Act and all children with mild disabilities integrated in the mainstream school system.", "82. ECRI notes that the efforts made to date to combat the disproportionate representation of Roma children in special schools for children with mental disabilities, though they have had some positive effects, cannot be said to have had a major impact in practice so far. It stresses that, in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system, putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools. ”", "B. Other international texts", "76. For other relevant international texts, see D.H. and Others v. the Czech Republic [GC], cited above, §§ 81 to 107; and Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 87 to 97, ECHR 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Elements of domestic law submitted by the Government", "55. The work of the expert and rehabilitation committees examining learning abilities was, at the material time, regulated by Ministerial Decree no. 14/1994. (VI. 24.) MKM. This Decree dealt with procedural issues, regulated the operation of expert committees, secured the complexity of the expert and rehabilitation committee examinations, and required that the committees ’ recommendations be based on a complex assessment of the results of medical, pedagogical and psychological examinations. As to the methods of examination to be used, a protocol was outlined in a manual entitled “ Transfer Examinations” ( “ the Manual ” ), the publication of which was commissioned by the Ministry of Education in the 1980s.", "56. The Manual states with emphasis that performance disorders may have two causes: the lack of knowledge or the lack of ability. It specifies the diagnostic signs indicating that the lack of knowledge is not caused by ability disorder as follows: where the lack of knowledge is explained by previous poor developmental conditions and poor socio-cultural environment; where the task can be simplified so as to suit the child ’ s level of knowledge and at that level no performance disorder can be observed; where during the examination the manner of making use by the child of the help provided by the examining teacher and the child ’ s capability to be oriented and taught indicate that his abilities are developable; and where the child ’ s social maturity, general knowledge and performance in life situations indicate that his abilities are intact.", "57. Consequently, in examining a child ’ s task- solving performance, the interdependence of four factors shall always be examined, namely previous educational effects, the child ’ s scope of knowledge, the child ’ s abilities and his age-related maturity.", "58. The Manual further contains the following guidelines:", "“Where a child from a socio-culturally retarded environment is being examined, tests free of cultural elements should be used. Certain tasks of a given test may be transformed in order to adjust them – at the same level of difficulty – to the child ’ s scope of knowledge ...", "When a socially disadvantaged child is being examined, special attention must be paid to his capability to learn in the examination situation ... ”", "59. The Manual also draws experts ’ attention to the desirable procedures to be followed in examining a child of Roma ethnicity as follows:", "“The fact that a child does not know the language of school instruction or that his command of language does not attain the level of mother tongue would, in itself, constitute a serious disadvantage even if the child had no school integration problems resulting from social and/or cultural problems. Therefore, the special education or psychological examination of children coming from a disadvantageous social situation and underdeveloped linguistic environment should be carried out with special care. From a delay in speech development no conclusions concerning the child ’ s mental maturity should be drawn. In such cases the child ’ s practical intelligence should be assessed, or his cognitive abilities should be examined through non-verbal tasks.”", "60. This protocol was reviewed and updated between 2004 and 2008 and a new Manual was published. In 2010 a new Ministerial Decree ( no. 4/2010. (I.19. ) OKM ) was issued for the regulation of the work of the pedagogical expert services. This Decree prescribes a uniform procedural order for expert and rehabilitation committees, and specifies the professional requirements to be met in carrying out the examinations, based on which expert opinions are drafted; moreover, in addition to the remedies formerly introduced, it provides for the involvement of an independent equal opportunity expert, if appropriate.", "B. Elements of domestic law submitted by the applicants", "61. Before the ETA entered into force in 2004, discrimination based on ethnic origin had been prohibited by the Constitution, the Civil Code and the PEA. On the enactment of the ETA, the PEA was amended to provide that the requirement of equal treatment shall apply to all participants in public education and permeate all segments and procedures of the same.", "62. Relevant provisions of the PEA are as follows:", "Section 4", "“ (7) Those co-operating in the organisation, control and operation of public education and in the performance of the tasks of public education shall take account of the children ’ s interest, which is placed above everything else, when making decisions and taking measures.", "The children ’ s interests which are placed above everything else are the following in particular: ...", "b) that they should be given every kind of assistance to evolve their abilities and talents, to develop their personalities and to update their knowledge continually as prescribed by this Act; ... ”", "Section 10", "“ (3) Children and pupils have the following rights:", "a) they shall receive education and teaching according to their abilities, interest and faculties, continue their studies according to their abilities and participate in primary art education in order that their talent should be recognised and developed; ...", "f) they shall receive particular care – special nurture or care with the purpose of rehabilitation – according to their conditions and personal endowments, they shall appeal to the institution of pedagogical assistance service, irrespective of their age; ... ”", "63. The PEA further gives the definition of special educational needs (“SEN ”).", "Between 1 September 1996 and 1 September 2003, it provided as follows :", "Section 121", "“ (18) (later 20): [ The term of ] other disability [concerns] those children/ pupils who, on the basis of the opinion of the expert and rehabilitation committee :", "a) struggle with pervasive development disorder (for example, autism), or", "b) struggle with disorders in school performance ... because of other psychic disorders ... as a consequence of which are lastingly impeded in development and learning (for example, dyslexia ... ); ... ”", "64. By 1 September 2003 the PEA was amended; and the term SEN was introduced instead of ‘ other disability ’ :", "Section 121", "“ ( 29 ) [C] hildren/ pupils with [SEN] are those who, on the basis of the opinion of the expert and rehabilitation committee :", "a) suffer from physical, sensory, mental, speech deficiency or autism, or multiple disabilities in case of the joint occurrence thereof, or", "b) are lastingly and substantially impeded in development and learning because of psychic disorders (for example, dyslexia ... ); ... ”", "65. As of 1 September 2007, section 121 of the PEA reads as relevant :", "“(29) [C] hildren/ pupils with special educational needs are those who, on the basis of the opinion of the expert and rehabilitation committee :", "a) suffer from physical, sensory, mental, speech deficiency or autism, or multiple disabilities in case of the joint occurrence thereof, and struggle with lasting and serious disorders in the cognitive functions or behavioural development, attributable to organic causes, or", "b) struggle with long-term and serious disorders in the cognitive functions or behavioural development, not attributable to organic causes. ”", "66. As demonstrated above, as of 1996, the PEA differentiated between two categories of disability, namely the category of mentally disabled children and the one of those who suffered from adaptive, learning or behavioural difficulties.", "As of 2003, the term SEN was introduced and the category of mentally disabled children was defined as SEN( a) whereas the one of those who suffered from adaptive, learning or behavioural difficulties was defined as SEN( b).", "In 2007, the law redefined these categories and since then has differentiated between the two categories according to the origin of special needs: organic disabilities correspond to SEN ( a) whereas special needs with non-organic causes correspond to SEN ( b). If the disability is attributable to organic causes, the child is declared by the rehabilitation committee of experts as having mild mental disability and will be educated in a specialised institution with specialised teachers. If the special needs do not originate in organic causes then the child can be educated in an integrated way, that is, in normal mainstream schools but with the support of special education teachers. Nevertheless, the PEA also allowed ‘ SEN(b) children ’ to be educated in special schools or classes, under a special curriculum; in order to change this practice, a subsequent amendment was introduced to the effect that only those mentally disabled children should be placed in segregated special schools whose disability derived from organic causes.", "However, in 2008, a new amendment reinstalled the previous provision of educating SEN children, again allowing children who were not mentally disabled and had no organic disability to be educated in segregated special schools.", "67. As of 1 September 2007 the PEA introduced a provision for pupils suffering from adaptive, learning or behavioural difficulties, who can be educated in an integrated way:", "Section 30", "“(7) If a child / pupil struggles with adaptive, learning or behavioural difficulties ... or the chronic and serious derangement of cognitive functions or of development of behaviour ascribable to organic reasons, he or she is entitled to developmental education. ...", "(8) The question whether a child/pupil struggles with adaptive, learning or behavioural difficulties or has special educational needs shall be decided by the rehabilitation committee of experts at the request of the educational counselling service. ”", "68. As of 2003, the PEA also regulates the necessary conditions for educating children with special educational needs:", "Section 121", "“( 28 ) The necessary conditions for the education and teaching of children with special educational needs are as follows : employment of conductive therapists and therapeutic teachers according to the separate kindergarten education or school education and teaching of children/pupils and the type and severity of the special educational need; application of a special curriculum, textbooks or any other special aids necessary for education and teaching; engagement of therapeutic teachers with qualifications in a special field necessary for private tuition, integrated kindergarten education, school education and teaching, developmental preparation and activities specified by the competent committee of experts; a special curriculum, textbooks and special therapeutic and technical tools necessary for the activities; provision of the professional services specified by the rehabilitation committee of experts for children students; ... ”", "69. Under the PEA, the term “ special curriculum” means that ‘ SEN children ’ may be exempt from certain subjects fully or partially, according to the opinion of the expert and rehabilitation committee or the pedagogical advisory committee.", "70. Lastly, the PEA also defines the different categories of secondary education and provides that, in order to educate children with special educational needs, secondary schools shall operate as special vocational school. Such schools shall educate those pupils who, as a result of their disabilities, cannot be educated in mainstream school.", "C. National Social Inclusion Strategy (Extreme Poverty, Child Poverty, the Roma) (2011–2020)", "71. This document, published by the Ministry of Public Administration and Justice (State Secretariat for Social Inclusion) in December 2011, contains the following passages:", "“II.2. Providing an inclusive school environment, reinforcing the ability of education to compensate for social disadvantages", "The development of an inclusive school environment that supports integrated education and provides education that breaks the inheritance of segregation and disadvantages as well as the development of services assisting inclusion play a primary role in the reduction of the educational failures of disadvantaged children, including Roma children.", "As emphasised in the national strategy “ Making Things Better for Our Children” (2007), « in an educational system creating opportunities, children, regardless of whether they come from poor, under-educated families, live in segregated living conditions, are disabled, migrants or blessed with outstanding talent, must receive education suited to their abilities and talents throughout their lifetime, without their education being influenced or affected by prejudices, stereotypes, biased expectations or discrimination. Therefore, this must be the most important priority of Hungary ’ s educational policy. »", "In the interest of reducing the extent of educational exclusion, we must reduce the selectivity of the educational system. Institutions must have effective tools against discrimination and need major methodological support for promoting the integration of pupils encumbered with socio-cultural disadvantages; this is also the way to reduce the out-migration of non-Roma pupils from certain schools. The development and application of an inclusive school model is a fundamental criterion concerning the regulation, management and coordination of public education that is also key in methodological developments as well as in the renewal of teacher training and the determination of the content of cooperation between institutions.", "In the interest of ensuring that, likewise, children should not be unnecessarily declared disabled, we must provide for the enforcement of procedures determined in the relevant rule of law and professional criteria concerning the examinations serving as the basis for the subsequent expert opinion by providing professional assistance on an ongoing basis and with independent and effective inspections. In the spirit of prevention and in the interest of ensuring the timely and professional development of children, we must create standard procedures, professional contents and requirements also in the areas of early childhood development, educational consulting and speech therapy. The range of tests, examination methods and means used in the course of the testing and examination of children must be continuously extended. We must pay particular attention to avoiding declaring children disabled unnecessarily in the case of disadvantaged children transferred into long-term foster care and the Roma and must ensure that the tests, methods and procedures employed for the determination of the child ’ s actual abilities should be able to separate any deficiencies that may arise from environmental disadvantages.”", "III. RELEVANT INTERNATIONAL TEXTS", "A. Council of Europe sources", "72. Recommendation no. R(2000)4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers ’ Deputies) provides as follows:", "“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,", "Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy ...", "Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination;", "Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy; ...", "Recommends that in implementing their education policies the governments of the member States:", "– be guided by the principles set out in the appendix to this Recommendation;", "– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.”", "The relevant sections of the Appendix to Recommendation No. R(2000)4 read as follows:", "“Guiding principles of an education policy for Roma/Gypsy children in Europe", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 READ IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "77. The applicants argued that their education in a remedial school represented ethnic discrimination in the enjoyment of their right to education, in breach of Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention.", "Article 2 of Protocol No. 1 provides:", "“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "78. The Government contested that argument.", "A. Admissibility", "1. The parties ’ submissions", "a. Victim status", "i. The Government", "79. The Government argued that the applicants could no longer claim to be victims of a violation of their rights within the meaning of Article 34 of the Convention given that the Regional Court had found in respect of the Expert Panel that the applicants ’ right to equal treatment and education had been violated by the Expert Panel ’ s failure to individualise their diagnoses or to specify the cause and nature of their special educational needs. Each of the applicants had been awarded HUF 1,000,000 as non-pecuniary damages. Moreover, the Supreme Court had found that the County Council was liable for its failure to supervise the legality of the functioning of the Expert Panel which had conducted a gravely unlawful practice by failing to observe the legal guarantees concerning the parents ’ rights to be present, be informed, consent or seek a remedy. The prejudice suffered on account of the applicants ’ deprivation of the right to a remedy provided for by law and thereby of the theoretical chance of obtaining a more favourable assessment of their learning abilities had been compensated by non-pecuniary damages.", "ii. The applicants", "80. The applicants contested the Government ’ s assertion that these judgments fully and effectively remedied the violation of their rights. The damages provided in regard to the omissions of the County Council and the Expert Panel did not respond to their claim of structural direct/indirect discrimination, i.e. the flawed system of diagnosis in Hungary, or to their claim of misdiagnosis and inadequate education. It was also established by the Regional Court that the damage caused derived from the convergence of the actions of each of the respondents. Because of the appellate process, it was only with regard to the Expert Panel that the judgment had become final. However, the applicants asserted that a final judgment in respect to an authority last in line of culpability, i.e. the Expert Panel, could not effectively remedy the violation of their rights to equal treatment in education. Given that respondents ’ actions had been inseparable, the Expert Panel alone could not have changed the structure under which the applicants had been misdiagnosed. Therefore, they continued to be victims of a violation of their rights under the Convention.", "b. Exhaustion of domestic remedies", "i. The Government", "81. Concerning the applicants ’ claim that the assessment of their learning abilities had not been made with culturally unbiased tests which amounted to a general claim of a systemic error, the Government submitted that in this respect the applicants had failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention. Such claims should have been raised by the applicants in proceedings instituted against the ministry responsible for education. The availability of this remedy was undisputable and there was record of successful such actions. Moreover, as to the issue of segregation, the Government submitted that this issue had not been raised before the competent domestic authorities; in particular, the question of the County Council ’ s liability for the eventual discriminatory effect of its education policy had been not addressed by the applicants in the domestic proceedings although the local authorities were better placed to determine the adequacy of an education policy to the needs of the children concerned. It was true that the applicants had initially filed an action against the County Council on account of its alleged failure to provide them with an education adequate to their abilities, however, they had withdrawn that action on 26 February 2007 and 9 March 2007, respectively.", "ii. The applicants", "82. The applicants contested the Government ’ s position, claiming that they had submitted their claim before the domestic courts against respondents who were – each to a different extent as part of a system – all responsible for their misdiagnoses. They claimed that the ministry responsible for education oversaw the whole education sector, while at the local level it was the county councils which maintained, supervised and controlled the expert panels assessing children. In Hungary, certain State duties were transferred to local public authorities due to decentralisation of the public administration.", "c. Six-month time-limit", "i. The Government", "83. The Government were of the opinion that the application was also inadmissible for the applicants ’ failure to observe the six-month time-limit laid down in Article 35 § 1 of the Convention. On the issue of whether the applicants ’ education was channelled into special education on the basis of assessments made with culturally biased or unbiased tests and methods, the Regional Court ’ s judgment of 27 May 2009 had been the final domestic decision. This judgment became final in regard to the Expert Panel on 2 July 2009. The applicants, however, had not submitted their application until 11 February 2011, that is, more than six months later.", "ii. The applicants", "84. In order to find redress for the violation of their rights, the applicants stressed that they had needed to exhaust all effective domestic remedies available to them against all respondents who bore joint liability for the alleged breaches. Therefore the six- month time-limit ran from the receipt of the Supreme Court judgment on 11 August 2010. Indeed, the Government did not claim that the review by the Supreme Court had not been an effective remedy.", "2. The Court ’ s assessment", "85. The Court finds that the above objections are interrelated and must be examined together. In so far as the applicants ’ claim of discrimination and/or misdiagnosis is concerned, the Court observes that the Supreme Court did not sustain the applicants ’ claim of discrimination and breach of equal treatment. In particular, it confirmed the position of the lower courts regarding the respondents ’ joint liability, finding that, in the adjudication of the claims against the appealing parties, it was appropriate to evaluate the conduct of the School and the County Council in relation to the unlawful acts of the Expert Panel, as established by the Regional Court, even if the latter ’ s judgment had become final in the absence of appeal in regard to the Expert Panel. In view of this finding of joint liability, the Court will consider the alleged violations as deriving from the joint acts of the School, the County Council and the Expert Panel. However, the applicants obtained redress only in regard to the Expert Panel ’ s handling (see paragraphs 43 to 54 above), and none in regard to their claims of discrimination. In these circumstances, the Court is satisfied that the applicants have retained their victim status for the purposes of Article 34 of the Convention.", "86. Moreover, the Court observes that the applicants pursued claims of discrimination and unequal treatment before all domestic judicial instances, including the Supreme Court, which however held in essence (see paragraph 53 above) that the applicants ’ claim of systemic error amounting to a violation of their Convention rights could not, in the circumstances, be redressed by means of the national law. The Court is therefore satisfied that – in respect of the alleged discrimination in the enjoyment of their right to education – the applicants have taken all the requisite steps to exhaust domestic remedies that can be reasonably expected in the circumstances.", "87. Concerning the applicants ’ claim about the unsuitability of the test battery applied in their case, the Court notes that the applicants could have brought an action against the education authorities under this head. However, they did not do so. This aspect of the case cannot therefore be examined on the merits for non-exhaustion of domestic remedies (see also Horváth and Vadászi v. Hungary (dec.), no. 2351/06, 9 November 2010).", "88. It follows from the above considerations that, to the extent that the applicants have exhausted domestic remedies, the six - month time-limit ran from the service of the Supreme Court ’ s judgment on 11 August 2010 and has thus been respected.", "89. Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible, apart from the applicants ’ claim about the unsuitability of the test battery applied in their cases (see paragraph 87 above), which must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4.", "B. Merits", "1. The parties ’ arguments", "a. The applicants", "90. According to the applicants, the improper shunting of Roma children into special schools constituted indirect discrimination, and was impermissible under Article 2 of Protocol No. 1. Under domestic law, indirect discrimination occurred where an apparently neutral provision, criterion or practice would put persons of a specific racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.", "91. The applicants submitted that Roma were uniquely burdened by the current system; no other protected group had been shown to have suffered wrongful placement in special schools based on the diagnostic system. Social deprivation was in great part linked to the concept of familial disability. This notion had been formulated during the first big wave of re-diagnosis of Roma children transferred to special schools in the 1970s. According to contemporary research, familial disability could not amount to any type or form of mental disability, as it was in essence based on the social deprivation and the non-mainstream, minority cultural background of Roma families and children. The definition of mental disability as comprising social deprivation and/or having a minority culture amounted to bias and prejudice.", "92. In addition, the tests used for placement had been culturally biased and knowledge-based, putting Roma children at a particular disadvantage. None of the applicants had been observed in their home, and their ethnicity had not been taken into account when assessing the results. Consequently, their socio-cultural disadvantaged background resulting from their ethnicity had not been taken into consideration.", "93. The applicants further faulted the examination process for its not being sufficiently individualised. After the first assessment, based on which the applicants had been transferred to a special school, the applicants had in fact not been re-examined. The “ review ” had been paper-based, their diagnoses had never been individualised, and their parents ’ rights had not been respected. These failures had been established by the domestic courts. Indeed, it had been a violation to assign them to special schools when their tests had indicated IQ scores higher than WTO standards for mental disability. For the applicants, the issue was why the Government had allowed expert panels across the country and in Nyíregyháza in particular to diagnose mild mental disability contrary to WHO standards. Given that the WHO standards had been applicable at the time, the development of science and the changing terminology could not serve as a reasonable justification for the misdiagnoses of the applicants and the deprivation of their right to access adequate education. Until 2007, special schools had not only educated mentally disabled children, but also educated children with special education needs, including educational challenge and poor socio-economic background. Due to an amendment in 2007, the PEA had prescribed that all children who had been sent to special schools because of “psychological disorders” or “learning difficulties” had to be re - tested in order to establish whether the disorder was the result of organic reasons; if not, those children had to be transferred back to normal schools.", "b. The Government", "94. The Government denied that the applicants had been treated less favourably than non-Roma children in a comparable situation. Moreover, inasmuch as their treatment in education had been different from that of non-Roma (and other Roma) children of the same age, it had had an objective and reasonable justification. Moreover, they had not been treated differently from non-Roma children with similar socio-cultural disadvantages.", "95. The Government were of the opinion that tests and standards tailored to the Roma population would have no sensible meaning from the point of view of assessing a child ’ s ability to cope with the mainstream education system – which was the purpose of the assessment of learning abilities of children and of the psychometric tests applied in the process. They referred to NERC ’ s expert opinion of 28 June 2007, which stated that the culture-bias of the “Budapest Binet Test ” was less apparent in younger ages ( three to six years of age) because it measured primarily basic practical knowledge. When this test was applied, its cultural bias could be compensated by a pedagogical examination aimed at exploring practical knowledge. Moreover, this one had not been the only test applied; and the applicants had been tested with a complex method. The diagnoses that the applicants needed special education had not been based on a single test; they had not even been exclusively based on the results of various tests obtained in a single examination session.", "96. Moreover, the results of standardising the recently developed “ WISC-IV Child Intelligence Test ” showed that there were no ethnically determined differences between the test scores of Roma and non-Roma children. Therefore, in light of foreign experience gained in this field, it had been decided in the standardisation process not to lay down separate norms specifically applicable to Roma children but to use other means to ensure the fair assessment of all children in the course of the application of standardised tests. Relying on expert opinions, the Government claimed that socio-cultural background had been decisive for the mental development of the child, and when the actual level of a child ’ s mental development (IQ) had been measured, the result had necessarily been influenced by the same socio-cultural effects that had shaped the child ’ s mental development. In sum, the above results of the standardisation proved that IQ tests did not measure any difference between Roma and non-Roma culture or any cultural differences between Roma and non-Roma children. What they did measure was the effect of cultural deprivation or insufficient cultural stimuli in early childhood on the mental development of children, irrespective of their ethnic origin. Disproportionate representation of Roma children in special education was explained by their disproportionate representation in the group deprived of the beneficial effects of modernisation on the mental development of children. These factors concerned areas of social development which fell outside the scope of the right to education or any of the rights enshrined in the Convention.", "97. The Government were further of the opinion that the testing (or assessment) of the applicants ’ abilities had been sufficiently individualised even if their diagnoses had not been so, as it had been established and redressed by the Regional Court ’ s final judgment against the Expert Panel.", "98. Moreover, the Government agreed that the ensuing possibility of errors of assessment resulting from eventual personal biases or professional mistakes being committed must be counterbalanced by appropriate safeguards. Such procedural safeguards, including the parents ’ rights to be present, be informed, consent or seek remedy, were provided for by Hungarian law. The fact that these safeguards had not been respected in the applicants ’ case was not disputed: it had been established by the Supreme Court which had found that the Expert Panel had conducted a gravely unlawful practice in this respect and that the County Council had also been liable for this on account of its failure to supervise the legality of the functioning of the Expert Panel, as well as to put an end to the unlawful practice.", "99. The assessment by the Expert Panel had not been carried out for medical purposes but with a view to determining whether the applicants could successfully be educated in a mainstream school. Therefore, contrary to the applicants ’ opinion, it could not be regarded as misdiagnosis if a diagnosis of learning disability, in terms of special education, did not coincide with a medical diagnosis of mild mental retardation as defined by the WHO.", "100. Therefore, it had not been unreasonable for the Supreme Court to examine the applicants ’ diagnoses, contrary to the medical approach proposed by them, from the point of view of their right to an education adequate to their abilities and to find that, from this aspect, the Expert Panel ’ s original diagnoses establishing that the applicants had needed education under a special curriculum had been confirmed by the forensic experts ’ opinion, even in the second applicant ’ s case.", "2. The Court ’ s assessment", "a. General principles", "101. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article.", "Discrimination on account of, inter alia, a person ’ s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person ’ s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (see D.H. and Others, cited above, §§ 175-176).", "102. The Court has further established that, as a result of their turbulent history and constant uprooting, the Roma have become a specific type of disadvantaged and vulnerable minority. They therefore require special protection. Their vulnerable position means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( see Oršuš and Others, cited above, §§ 147-148).", "103. Furthermore, the Court reiterates that the word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State ( see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 37, Series A no. 48 ). Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Lautsi and Others v. Italy [GC], no. 30814/06, § 61, ECHR–2011 (extracts); Leyla Şahin v. Turkey [GC], no. 44774/98, § 135, ECHR 2005 ‑ XI; Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-31, § 3, Series A no. 6).", "104. In the context of the right to education of members of groups which suffered past discrimination in education with continuing effects, structural deficiencies call for the implementation of positive measures in order, inter alia, to assist the applicants with any difficulties they encountered in following the school curriculum. These obligations are particularly stringent where there is an actual history of direct discrimination. Therefore, some additional steps are needed in order to address these problems, such as active and structured involvement on the part of the relevant social services (see Oršuš and Others, cited above, § 177).", "The Court would note in this context Recommendation no. R(2000)4 of the Committee of Ministers (see paragraph 72 above) according to which appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school.", "105. Furthermore, the Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group. Such a situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent (see, amongst other authorities, D.H. and Others, cited above, § 184).", "A general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group, unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate (see Oršuš and Others, cited above, § 150 ). Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII ).", "106. Where it has been shown that legislation produces such indirect discriminatory effect, the Court would add that, as with cases concerning employment or the provision of services (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005 ‑ VII), it is not necessary, in cases in the educational sphere, to prove any discriminatory intent on the part of the relevant authorities (see D.H. and Others, cited above, § 194).", "107. When it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence (see D.H. and Others, cited above, § 188).", "108. Where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden of proof shifts to the respondent State. The latter must show that the difference in treatment is not discriminatory (see, mutatis mutandis, Nachova and Others, loc. cit.). Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case (see, mutatis mutandis, Nachova and Others, cited above, § 147), it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof.", "b. Application of those principles to the present case", "109. The Court notes that the applicants in the present case made complaints under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention, claiming that the fact that they had been assigned to a remedial school for children with special educational needs during their primary education violated their right to receive an education and their right to be free from discrimination. In their submission, all that has to be established is that, without objective and reasonable justification, they were assigned to a school where, because of the limited curriculum, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination (compare with the above-mentioned D.H. and Others judgment, § 183 ).", "110. The Court notes that Roma children have been overrepresented among the pupils at the Göllesz Viktor Remedial Primary and Vocational School (see paragraph 7 above) and that Roma appear to have been overrepresented in the past in remedial schools due to the systematic misdiagnosis of mental disability (see paragraph 10 above). The underlying figures not having been disputed by the Government – who have not produced any alternative statistical evidence – the Court considers that these figures reveal a dominant trend. It must thus be observed that a general policy or measure exerted a disproportionately prejudicial effect on the Roma, a particularly vulnerable group. For the Court, this disproportionate effect is noticeable even if the policy or the testing in question may have similar effect on other socially disadvantaged groups as well. The Court cannot accept the applicants ’ argument that the different treatment as such resulted from a de facto situation that affected only the Roma. However, it is uncontested – and the Court sees no reason to hold otherwise – that the different, and potentially disadvantageous, treatment applied much more often in the case of Roma than for others. The Government could not offer a reasonable justification of such disparity, except that they referred, in general terms, to the high occurrence of disadvantageous social background among the Roma ( see paragraph 96 above ).", "111. Although the policy and the testing in question have not been argued to aim specifically at that group, for the Court there is consequently a prima facie case of indirect discrimination. It thus falls on the Government to prove that in the case of applicants the difference in treatment had no disproportionately prejudicial effects due to a general policy or measure that is couched in neutral terms, and that therefore the difference in treatment was not discriminatory.", "112. The Court reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Oršuš and Others, cited above, § 196; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006 ‑ VI ). The Court stresses that where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible.", "113. The Court notes the Government ’ s submissions (see paragraph 94 above) according to which the impugned treatment is neutral ( that is, based on objective criteria) and results in the different treatment of different people, and moreover the education programme in its existing form is beneficial to pupils with different abilities. The Court accepts that the Government ’ s position to retain the system of special schools/classes has been motivated by the desire to find a solution for children with special educational needs. However, it shares the disquiet of the other Council of Europe institutions who have expressed concerns about the more basic curriculum followed in these schools and, in particular, the segregation which the system causes (see paragraphs 73 to 75 above) – even if in the present case the applicants were not placed in ethnically segregated classes.", "114. The Court notes that the Hungarian authorities took a number of measures to avoid misdiagnoses in the placement of children. Nevertheless, the Council of Europe Commissioner for Human Rights found in 2006 that 20% of Roma children continued to be assigned to special classes, as compared with only 2% of majority children (see paragraph 74 above). Moreover, the ECRI Report published in 2009 ( see paragraph 75 above ) indicated a high number of misplaced Roma pupils. For the Court, these facts raise serious concerns about the adequacy of these measures at the material time.", "115. The Court notes that the misplacement of Roma children in special schools has a long history across Europe.", "Regarding the Czech Republic, the Advisory Committee on the Framework Convention for the Protection of National Minorities pointed out that children who were not mentally handicapped were frequently and quasi-automatically placed in Czech remedial schools “[owing] to real or perceived language and cultural differences between Roma and the majority” (see D.H. and Others, cited above, § 68).", "In Hungary, the concept of “familial disability” ( see paragraphs 10 and 91 above ) resulted in comparable practices. The ECRI Report published in 2009 notes that the vast majority of children with mild learning disabilities could easily be integrated into mainstream schools; and many are misdiagnosed because of socio-economic disadvantage or cultural differences. These children are unlikely to break out of this system of inferior education, resulting in their lower educational achievement and poorer prospects of employment. The Report also noted that efforts to combat the high proportion of Roma children in special schools – both by assisting wrongly diagnosed children and preventing misdiagnosis in the first place – have not yet had a major impact (see paragraph 75 above).", "116. In such circumstances – and in light of the recognised bias in past placement procedures ( see paragraph 115 above) – the Court considers that the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests.", "117. While in the present case the Court is not called on to examine the alleged structural problems of biased testing, the related complaint being inadmissible ( see paragraph 87 above), it is nevertheless incumbent on the State to demonstrate that the tests and their application were capable of determining fairly and objectively the school aptitude and mental capacity of the applicants.", "118. The Court observes that the Hungarian authorities set the borderline value of mental disability at IQ 86, significantly higher than the WHO guideline of IQ 70 (see paragraph 18 above). The Expert Panel found disparate measurements of Mr Horváth ’ s IQ between IQ 61 and 83. Mr Kiss had an IQ of 63 according to the “ Budapest Binet Test” and an IQ of 83 according to the “Raven Test ”. However, when taking the latter test at a summer camp (see paragraph 31 above), Mr Horváth scored IQ 83 and Mr Kiss IQ 90.", "The Court cannot take a position as to the acceptability of IQ scores as the sole indicators of school aptitude but finds it troubling that the national authorities significantly departed from the WHO standards.", "119. The Court observes, further, that the tests used to assess the applicants ’ learning abilities or difficulties have given rise to controversy and continue to be the subject of scientific debate and research. The Court is aware that it is not its role to judge the validity of such tests, or to identify the state-of-the- art, least culturally biased test of educational aptitude. It is only called on to ascertain whether good faith efforts were made to achieve non-discriminatory testing. Nevertheless, various factors in the instant case lead the Court to conclude that the results of the tests carried out in regard to applicants did not provide the necessary safeguards against misdiagnosis that would follow from the positive obligations incumbent on the State in a situation where there is a history of discrimination against ethnic minority children.", "120. In the first place, the Court notes that it was common ground between the parties that all the children who were examined sat the same tests, irrespective of their ethnic origin.", "The Government acknowledged that at least part of the test battery applied ( namely, the “ Budapest Binet Test ” ) was culturally biased (see paragraph 95 above).", "Moreover, certain tests used in the case of the applicants were found to be obsolete by independent experts (see paragraph 34 above).", "121. In these circumstances, the Court considers that, at the very least, there is a danger that the tests were culturally biased. For the Court, the issue is therefore to ascertain to what extent special safeguards were applied that would have allowed the authorities to take into consideration, in the placement and regular biannual review process, the particularities and special characteristics of the Roma applicants who sat them, in view of the high risk of discriminatory misdiagnosis and misplacement.", "122. The Court relies in this regard on the facts established by the Regional Court which were not contradicted on appeal (see paragraphs 39 to 42 above). This court found that the Expert Panel had failed to individualise the applicants ’ diagnoses or to specify the cause and nature of their special educational needs and therefore violated the applicants ’ rights to equal opportunity. Moreover, the social services administering the placement had been subject to constant reorganisation. In this regard, the court had found that the conditions necessary for the functioning of the Expert Panel had not been provided. Consequently, the Expert Panel and the County Council could not provide the necessary guarantees against misplacement which was historically more likely to affect Roma. Moreover, after a careful analysis of the applicable law, the Court of Appeal and the Supreme Court concluded that, as of 2003, children with special educational needs had included students with psychological developmental troubles (learning disabilities). It was not clear whether the applicants had mental (or learning ) disabilities that could not have been taken into consideration within the normal education system by providing additional opportunities to catch up with the normal curriculum. Those courts found that, because of the changes in legislation, related to changing concepts on integrated education, there was lack of legal certainty from 1 January until 1 September 2007 (see paragraph 45 in fine above)", "123. In the face of these findings, it is difficult for the Court to conceive that there was adequate protection in place safeguarding the applicants ’ proper placement. Therefore, the tests in question, irrespective of their allegedly biased nature, cannot be considered to serve as sufficient justification for the impugned treatment.", "124. As regards the question of parental consent, the Court accepts the Government ’ s submission that in this regard the violation of the applicants ’ rights to education was recognised and adequate remedies were provided in the domestic procedure (see paragraph 79 above). However, in the case of Mr Kiss, the absence of parental participation and the parents ’ express objection to the placement can be seen as having contributed to the discrimination.", "125. The Court notes that the identification of the appropriate educational programme for the mentally disabled and students with a learning disability, especially in the case of Roma children, as well as the choice between a single school for everyone, highly specialised structures and unified structures with specialised sections is not an easy one. It entails a difficult balancing exercise between the competing interests. The Court notes in the Hungarian context that the 2003 programme (see paragraph 12 above) and the 2011 National Inclusion Strategy (see paragraph 71 above) advocate an integrated approach in this respect.", "As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule (see Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996-VI).", "126. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996– IV, and Connors v. the United Kingdom, no. 66746/01, § 83, 27 May 2004).", "127. The facts of the instant case indicate that the schooling arrangements for Roma applicants with allegedly mild mental disability or learning disability were not attended by adequate safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class (see, mutatis mutandis, Buckley, cited above, § 76, and Connors, cited above, § 84). Furthermore, as a result of the arrangements, the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a consequence, they received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools. The education provided might have compounded their difficulties and compromised their subsequent personal development instead of helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population.", "In that connection, the Court notes with interest that the new legislation intends to move out students with learning disabilities from special schools and provides for children with special educational needs, including socially disadvantaged children, to be educated in ordinary schools enabling the diminution of the statistical overrepresentation of Roma in the special school population. This integration process requires the use of state - of - the - art testing.", "However, in the present case the Court is not called on to examine the adequacy of education testing as such in Hungary.", "128. Since it has been established that the relevant legislation, as applied in practice at the material time, had a disproportionately prejudicial effect on the Roma community, and that the State, in a situation of prima facie discrimination, failed to prove that it has provided the guarantees needed to avoid the misdiagnosis and misplacement of the Roma applicants, the Court considers that the applicants necessarily suffered from the discriminatory treatment. In this connection – and with regard to the vulnerability of persons with mental disabilities as such, as well as their past history of discrimination and prejudice – the Court also recalls its considerations pronounced in the case of Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010):", "“[I] f a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question ... .[T]he treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny.” (paragraphs 42 and 44).", "129. Consequently, there has been a violation in the instant case of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 in respect of each of the applicants.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "130. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "131. The applicants made no damages claims.", "B. Costs and expenses", "132. The applicants claimed, jointly, 6,000 euros (EUR) for the costs and expenses incurred before the Court. This claim corresponds to 100 hours of legal work billable by their lawyer at an hourly rate of EUR 60.", "133. The Government contested this claim.", "134. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,5 00 jointly to the applicants, who were represented by a lawyer and a non-governmental organisation, covering costs under all heads.", "C. Default interest", "135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Relevant background to the present case", "6. The Constitution of Bosnia and Herzegovina ( hereinafter referred to as “the Constitution” or “the State Constitution” when it is necessary to distinguish it from the Entity Constitutions ) is an annex to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Agreement”), initialled at Dayton on 21 November 1995 and signed in Paris on 14 December 1995. Since it was part of a peace treaty, the Constitution was drafted and adopted without the application of procedures which could have provided democratic legitimacy. It constitutes the unique case of a constitution which was never officially published in the official languages of the country concerned but was agreed and published in a foreign language, English. The Constitution confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure. In accordance with the Constitution, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard (Article V of Annex 2 to the Dayton Agreement ). Pursuant to an arbitral award of 5 March 1999, the Brčko District has been created under the exclusive sovereignty of the State.", "7. In the Preamble to the Constitution, Bosniacs, Croats and Serbs are described as “constituent peoples”. At the State level, power-sharing arrangements were introduced, making it impossible to adopt decisions against the will of the representatives of any “constituent people”, including a vital interest veto, an Entity veto, a bicameral system (with a House of Peoples composed of five Bosniacs and the same number of Croats from the Federation of Bosnia and Herzegovina and five Serbs from the Republika Srpska) as well as a collective Presidency of three members with a Bosniac and a Croat from the Federation of Bosnia and Herzegovina and a Serb from the Republika Srpska ( for more details, see paragraphs 12 and 22 below ).", "B. The present case", "8. The applicants were born in 1956 and 1943 respectively. They have held and still hold prominent public positions. Mr Sejdić is now the Roma Monitor of the Organisation on Security and Cooperation in Europe ( OSCE ) Mission to Bosnia and Herzegovina, having previously served as a member of the Roma Council of Bosnia and Herzegovina (the highest representative body of the local Roma community) and a member of the Advisory Committee for Roma (a joint body comprising representatives of the local Roma community and of the relevant ministries). Mr Finci is now serving as the Ambassador of Bosnia and Herzegovina to Switzerland, having previously held positions that included being the President of the Inter-Religious Council of Bosnia and Herzegovina and the Head of the State Civil Service Agency.", "9. The applicants describe themselves to be of Roma and Jewish origin respectively. Since they do not declare affiliation with any of the “constituent peoples”, they are ineligible to stand for election to the House of Peoples (the second chamber of the State Parliament) and the Presidency (the collective Head of State). Mr Finci obtained official confirmation in this regard on 3 January 2007." ]

[ "II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE", "A. The Dayton Agreement", "10. The Dayton Agreement, initialled at the Wright-Patterson Air Force Base near Dayton (the United States of America ) on 21 November 1995 and signed in Paris (France) on 14 December 1995, was the culmination of some forty-four months of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the Contact Group. It entered into force on the latter date and contains twelve annexes.", "1. Annex 4 (the Constitution of Bosnia and Herzegovina )", "11. The Constitution makes a distinction between “constituent peoples” (persons who declare affiliation with Bosniacs [1], Croats and Serbs) and “others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood, or other reasons). In the former Yugoslavia, a person ’ s ethnic affiliation was decided solely by that person, through a system of self-classification. Thus, no objective criteria, such as knowledge of a certain language or belonging to a specific religion were required. There was also no requirement of acceptance by other members of the ethnic group in question. The Constitution contains no provisions regarding the determination of one ’ s ethnicity: it appears that it was assumed that the traditional self-classification would suffice.", "12. Only persons declaring affiliation with a “constituent people” are entitled to run for the House of Peoples (the second chamber of the State Parliament) and the Presidency (the collective Head of State). The following are the relevant provisions of the Constitution:", "Article IV", "“The Parliamentary Assembly shall have two chambers: the House of Peoples and the House of Representatives.", "1. House of Peoples. The House of Peoples shall comprise 15 delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).", "( a ) The designated Croat and Bosniac delegates from the Federation shall be selected respectively by the Croat and Bosniac delegates to the House of Peoples of the Federation [2]. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska [3].", "( b ) Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb delegates are present.", "2. House of Representatives. The House of Representatives shall comprise 42 members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska.", "( a ) Members of the House of Representatives shall be directly elected from their Entity in accordance with an election law to be adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement.", "( b ) A majority of all members elected to the House of Representatives shall comprise a quorum.", "3. Procedures.", "( a ) Each chamber shall be convened in Sarajevo not more than 30 days after its selection or election.", "( b ) Each chamber shall by majority vote adopt its internal rules and select from its members one Serb, one Bosniac, and one Croat to serve as its Chair and Deputy Chairs, with the position of Chair rotating among the three persons selected.", "( c ) All legislation shall require the approval of both chambers.", "( d ) All decisions in both chambers shall be by majority of those present and voting. The delegates and members shall make their best efforts to see that the majority includes at least one-third of the votes of delegates or members from the territory of each Entity. If a majority vote does not include one-third of the votes of delegates or members from the territory of each Entity, the chair and deputy chairs shall meet as a commission and attempt to obtain approval within three days of the vote. If those efforts fail, decisions shall be taken by a majority of those present and voting, provided that the dissenting votes do not include two-thirds or more of the delegates or members elected from either Entity.", "( e ) A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb delegates selected in accordance with paragraph l (a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb delegates present and voting.", "( f ) When a majority of the Bosniac, of the Croat, or of the Serb delegates objects to the invocation of paragraph (e), the chair of the House of Peoples shall immediately convene a joint commission comprising three delegates, one each selected by the Bosniac, by the Croat, and by the Serb delegates, to resolve the issue. If the commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity.", "( g ) The House of Peoples may be dissolved by the Presidency or by the House itself, provided that the House ’ s decision to dissolve is approved by a majority that includes the majority of delegates from at least two of the Bosniac, Croat, or Serb peoples. The House of Peoples elected in the first elections after the entry into force of this Constitution may not, however, be dissolved.", "( h ) Decisions of the Parliamentary Assembly shall not take effect before publication.", "( i ) Both chambers shall publish a complete record of their deliberations and shall, save in exceptional circumstances in accordance with their rules, deliberate publicly.", "( j ) Delegates and members shall not be held criminally or civilly liable for any acts carried out within the scope of their duties in the Parliamentary Assembly.", "4. Powers. The Parliamentary Assembly shall have responsibility for:", "( a ) Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution.", "( b ) Deciding upon the sources and amounts of revenues for the operations of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina.", "( c ) Approving a budget for the institutions of Bosnia and Herzegovina.", "( d ) Deciding whether to consent to the ratification of treaties.", "( e ) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.”", "Article V", "“The Presidency of Bosnia and Herzegovina shall consist of three members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.", "1. Election and Term.", "( a ) Members of the Presidency shall be directly elected in each Entity (with each voter voting to fill one seat on the Presidency) in accordance with an election law adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement. Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by the Parliamentary Assembly.", "( b ) The term of the members of the Presidency elected in the first election shall be two years; the term of members subsequently elected shall be four years. Members shall be eligible to succeed themselves once and shall thereafter be ineligible for four years.", "2. Procedures.", "( a ) The Presidency shall determine its own rules of procedure, which shall provide for adequate notice of all meetings of the Presidency.", "( b ) The members of the Presidency shall appoint from their members a chair. For the first term of the Presidency, the chair shall be the member who received the highest number of votes. Thereafter, the method of selecting the chair, by rotation or otherwise, shall be determined by the Parliamentary Assembly, subject to Article IV § 3.", "( c ) The Presidency shall endeavour to adopt all Presidency decisions (i.e. those concerning matters arising under Article V § 3 (a)-(e)) by consensus. Such decisions may, subject to paragraph (d) below, nevertheless be adopted by two members when all efforts to reach consensus have failed.", "( d ) A dissenting member of the Presidency may declare a Presidency decision to be destructive of a vital interest of the Entity from the territory from which he was elected, provided that he does so within three days of its adoption. Such a decision shall be referred immediately to the National Assembly of the Republika Srpska, if the declaration was made by the member from that territory; to the Bosniac delegates of the House of Peoples of the Federation, if the declaration was made by the Bosniac member; or to the Croat delegates of that body, if the declaration was made by the Croat member. If the declaration is confirmed by a two-thirds vote of those persons within ten days of the referral, the challenged Presidency decision shall not take effect.", "3. Powers. The Presidency shall have responsibility for:", "( a ) Conducting the foreign policy of Bosnia and Herzegovina.", "( b ) Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation.", "( c ) Representing Bosnia and Herzegovina in international and European organisations and institutions and seeking membership in such organisations and institutions of which Bosnia and Herzegovina is not a member.", "( d ) Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina.", "( e ) Executing decisions of the Parliamentary Assembly.", "( f ) Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly.", "( g ) Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency.", "( h ) Coordinating as necessary with international and non - governmental organisations in Bosnia and Herzegovina.", "( i ) Performing such other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities.”", "13. The constitutional arrangements contested in the present case were not included in the Agreed Basic Principles which constituted the basic outline for what the future Dayton Agreement would contain (see paragraphs 6.1 and 6.2 of the Further Agreed Basic Principles of 26 September 1995). Reportedly, the international mediators reluctantly accepted these arrangements at a later stage because of strong demands to this effect from some of the parties to the conflict (see Nystuen [4], Achieving Peace or Protecting Human Rights? Conflicts between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement, Martinus Nijhoff Publishers, 2005, p. 192, and O ’ Brien [5], The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation, in Zartman and Kremenyuk (eds), Peace versus Justice: Negotiating Forward- and Backward-Looking Outcomes, Rowman & Littlefield Publishers, 2005, p. 105 ).", "14. Fully aware that these arrangements were most probably conflicting with human rights, the international mediators considered it to be especially important to make the Constitution a dynamic instrument and provide for their possible phasing out. Article II § 2 of the Constitution was therefore inserted (see Nystuen, cited above, p. 100 ). It reads as follows:", "“ The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”", "While the Constitutional Court of Bosnia and Herzegovina, in decisions nos. U 5/04 of 31 March 2006 and U 13/05 of 26 May 2006, held that the European Convention on Human Rights did not have priority over the Constitution, it came to a different conclusion in decision no. AP 2678/06 of 29 September 2006. In the latter decision, it examined a discrimination complaint concerning the appellant ’ s ineligibility to stand for election to the Presidency on the ground of his ethnic origin (a Bosniac from the Republika Srpska) and rejected it on the merits. The relevant part of the majority opinion reads as follows (the translation has been provided by the Constitutional Court ):", "“18. The appellants argue that their rights have been violated, taking into account the fact that Article II § 2 of the Constitution of Bosnia and Herzegovina stipulates that the rights and freedoms set forth in the European Convention and its Protocols shall apply directly in Bosnia and Herzegovina and that they shall have priority over all other law. Therefore, the appellants are of the opinion that the candidacy of Ilijaz Pilav for a member of the Presidency of Bosnia and Herzegovina was rejected exclusively based on his national/ethnic origin in which they see a violation of Article 1 of Protocol No. 12 to the European Convention which guarantees that the enjoyment of any right set forth by law shall be secured without discrimination and that no one shall be discriminated against by any public authority on any ground including the national/ethnic origin.", "...", "22. There is no dispute that the provision of Article V of the Constitution of Bosnia and Herzegovina, as well as the provision of Article 8 of the Election Act 2001 have a restrictive character in a way that they restrict the rights of citizens with respect to the candidacy of Bosniacs and Croats from the territory of the Republika Srpska and the Serbs from the territory of the Federation of Bosnia and Herzegovina to stand for election as members of the Presidency of Bosnia and Herzegovina. However, the purpose of those provisions is strengthening of the position of constituent peoples in order to secure that the Presidency is composed of the representatives from amongst these three constituent peoples. Taking into account the current situation in Bosnia and Herzegovina, the restriction imposed by the Constitution and Election Act 2001, which exist with respect to the appellants ’ rights in terms of differential treatment of the appellant ’ s candidacy in relation to the candidacy of other candidates who are Serbs and are directly elected from the territory of the Republika Srpska, is justified at this moment, since there is a reasonable justification for such treatment. Therefore, given the current situation in Bosnia and Herzegovina and specific nature of its constitutional order as well as bearing in mind the current constitutional and law arrangements, the challenged decisions of the Court of Bosnia and Herzegovina and the Central Election Commission did not violate the appellants ’ rights under Article 1 of Protocol No. 12 to the European Convention and Article 25 of the International Covenant on Civil and Political Rights since the mentioned decisions are not arbitrary and are based on the law. It means that they serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants ’ rights are proportional to the objectives of general community in terms of preservation of the established peace, continuation of dialogue, and consequently creation of conditions for amending the mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Act 2001.”", "15. As regards amendments to the Constitution, its Article X provides as follows:", "“1. Amendment procedure. This Constitution may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives.", "2. Human Rights and Fundamental Freedoms. No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph.”", "On 26 March 2009 the Parliamentary Assembly successfully amended the Constitution for the first time, in accordance with the above procedure. The amendment at issue concerned the status of the Brčko District.", "2. Annex 10 (the Agreement on Civilian Implementation)", "16. The Agreement on Civilian Implementation outlines the mandate of the High Representative – the international administrator for Bosnia and Herzegovina, established with the authorisation of the United Nations Security Council by an informal group of States actively involved in the peace process (called the Peace Implementation Council) as an enforcement measure under Chapter VII of the United Nations Charter (see United Nations Security Council Resolution 1031 of 15 December 1995).", "17. It is well known that the High Representative ’ s powers are extensive (see Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 and others, 16 October 2007). On numerous occasions, he has imposed ordinary legislation and has amended the Entity Constitutions (the Entity Constitutions, as opposed to the State Constitution, are not part of the Dayton Agreement ). Whether the High Representative ’ s powers also cover the State Constitution is, however, less clear. The Dayton Agreement is silent on this matter, but an episode concerning a typing error in the State Constitution would suggest a negative answer. Several months after the entry into force of the Dayton Agreement, some of the international lawyers who had been present during the Dayton negotiations realised that a reference in Article V § 2 (c) was wrong (the reference to Article III § 1 (a)-(e) was meant to have been a reference to Article V § 3 (a)-(e)). In November 1996 the High Representative, Mr Bildt, wrote a letter to the Secretary of State of the United States of America, Mr Christopher, and proposed to correct the error by invoking Annex 10 to the Dayton Agreement. Mr Christopher considered that Mr Bildt ’ s authority under Annex 10 did not extend to the State Constitution (see the text of their correspondence in Nystuen, cited above, pp. 80-81). Shortly thereafter, the error was corrected without any formal decision: the High Representative simply informed the Presidency of Bosnia and Herzegovina and published a corrected version of the State Constitution. What is relevant to the present case is that the official position of High Representatives has ever since been that the State Constitution is beyond their reach. The speech by Lord Ashdown, in his capacity as High Representative, to the Venice Commission confirms this (see the Report from the 60th Plenary Session of the Venice Commission, CDL-PV(2004)003 of 3 November 2004, p. 18). The relevant part of his speech reads as follows:", "“If Bosnia and Herzegovina wishes to join the [European Union] and NATO it will need a fully functioning State and nothing less. Bosnia and Herzegovina political leaders are already beginning to realise that they face a choice: to maintain the current constitution and pay the economic, social and political consequences, or make the constitutional changes required to make Bosnia and Herzegovina a stable, functional and prosperous country within the European Union.", "I do not believe that the people of Bosnia and Herzegovina will accept that their constitution should be a barrier to their security and prosperity.", "However, we cannot remove that barrier for them.", "It has consistently been the view of [the] Peace Implementation Council and successive High Representatives, including me, that, provided the Parties observe Dayton – and there remains a question mark on this in respect of Republika Srpska ’ s compliance with The Hague, then the Constitution of Bosnia and Herzegovina should be changed only by the prescribed procedures by the Parliamentary Assembly of Bosnia and Herzegovina and not by the International Community. In other words, that, provided Dayton is observed, the powers of the High Representative begin and end with the Dayton texts, and that any alteration to the Constitution enshrined therein is a matter for the people of Bosnia and Herzegovina and their elected representatives to consider.”", "B. The Election Act 2001", "18. The Election Act 2001 (published in Official Gazette of Bosnia and Herzegovina no. 23/01 of 19 September 2001, amendments published in Official Gazette nos. 7/02 of 10 April 2002, 9/02 of 3 May 2002, 20/02 of 3 August 2002, 25/02 of 10 September 2002, 4/04 of 3 March 2004, 20/04 of 17 May 2004, 25/05 of 26 April 2005, 52/05 of 2 August 2005, 65/05 of 20 September 2005, 77/05 of 7 November 2005, 11/06 of 20 February 2006, 24/06 of 3 April 2006, 32/07 of 30 April 2007, 33/08 of 22 April 2008 and 37/08 of 7 May 2008) entered into force on 27 September 2001. The relevant provisions of this Act provide:", "Section 1.4 ( 1 )", "“Each citizen of Bosnia and Herzegovina who has attained eighteen (18) years of age shall have the right to vote and to be elected pursuant to this law.”", "Section 4.8", "“In order to be certified for the elections, an independent candidate must present to the Central Election Commission his or her application for participation in the elections, which is to contain at least:", "1. one thousand five hundred (1,500) signatures of registered voters for elections for members of the Presidency of Bosnia and Herzegovina; ... ”", "Section 4.19 ( 5-7 )", "“The list of candidates shall contain the name and surname of every candidate on the list, their personal identification number (JMBG number), permanent residence address, declared affiliation with a particular ‘ constituent people ’ or the group of ‘ others ’, valid ID card number and place of issue, as well as a signature of the president of the political party or presidents of the political parties in the coalition. Each candidate ’ s declaration of acceptance of candidacy, a statement confirming the absence of impediments referred to in section 1.10 ( 1 ) ( 4 ) of this Act and a statement indicating his or her property situation referred to in section 15.7 of this Act shall be attached to the list. The declaration and statements must be duly certified.", "The declaration of affiliation with a particular ‘ constituent people ’ or the group of ‘ others ’ referred to in the paragraph [immediately] above shall be used for purposes of the exercise of the right to hold an elected or appointed position for which such declaration is required in the election cycle for which the list has been submitted.", "A candidate shall be entitled not to declare his or her affiliation to a ‘ constituent people ’ or the group of ‘ others ’. However, any such failure to declare affiliation shall be considered as a waiver of the right to hold an elected or appointed position for which such declaration is required.”", "Section 8.1", "“The members of the Presidency of Bosnia and Herzegovina who are directly elected from the territory of the Federation of Bosnia and Herzegovina – one Bosniac and one Croat, shall be elected by voters registered to vote in the Federation of Bosnia and Herzegovina. A voter registered to vote in the Federation of Bosnia and Herzegovina may vote for either the Bosniac or Croat member of the Presidency, but not for both. The Bosniac and Croat member who receives the highest number of votes among candidates from the same constituent people shall be elected.", "The member of the Presidency of Bosnia and Herzegovina who is directly elected from the territory of the Republika Srpska – a Serb – shall be elected by voters registered to vote in the Republika Srpska. The candidate who receives the highest number of votes shall be elected.", "The mandate for the members of the Presidency of Bosnia and Herzegovina shall be four (4) years. ”", "Section 9.12a", "“Croat and Bosniac delegates from the Federation of Bosnia and Herzegovina to the House of Peoples of Bosnia and Herzegovina shall be elected by the Croat and Bosniac caucus, as appropriate, in the House of Peoples of the Federation of Bosnia and Herzegovina.", "Croat and Bosniac delegates to the House of Peoples of the Federation of Bosnia and Herzegovina shall elect delegates from their respective constituent people.", "Serb delegates and delegates of the ‘ others ’ to the House of Peoples of the Federation of Bosnia and Herzegovina shall not participate in the process of electing Bosniac and Croat delegates for the House of Peoples of Bosnia and Herzegovina from the Federation of Bosnia and Herzegovina.", "Delegates from the Republika Srpska (five Serbs) to the House of Peoples of Bosnia and Herzegovina shall be elected by the National Assembly of the Republika Srpska.", "Bosniac and Croat delegates and delegates of the ‘ others ’ to the National Assembly of the Republika Srpska shall participate in the process of electing delegates from the Republika Srpska to the House of Peoples of Bosnia and Herzegovina. ”", "Section 9.12c", "“Bosniac or Croat delegates to the House of Peoples of Bosnia and Herzegovina shall be elected in such a way that each political entity participating in the Bosniac or Croat caucus or each delegate from the Bosniac or the Croat caucus in the House of Peoples of the Federation of Bosnia and Herzegovina, shall have the right to nominate one or more candidates to the list for the election of Bosniac or Croat delegates to the House of Peoples of Bosnia and Herzegovina.", "Each list may include more candidates than the number of delegates to be elected to the House of Peoples of Bosnia and Herzegovina .”", "Section 9.12e", "“Election of delegates from the Republika Srpska to the House of Peoples of Bosnia and Herzegovina shall be conducted in such a way that each political party or each delegate to the National Assembly of the Republika Srpska shall have the right to nominate one or more candidates to the list for the election of Serb delegates to the House of Peoples of Bosnia and Herzegovina.", "Each list may include more candidates than the number of delegates to be elected to the House of Peoples of Bosnia and Herzegovina .”", "C. The United Nations", "19. The International Convention on the Elimination of All Forms of Racial Discrimination, adopted under the auspices of the United Nations on 21 December 1965, entered into force in respect of Bosnia and Herzegovina on 16 July 1993. The relevant part of its Article 1 provides:", "“In this Convention, the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”", "The relevant parts of Article 5 of the Convention read as follows:", "“ In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:", "...", "(c) Political rights, in particular the right to participate in elections – to vote and to stand for election – on the basis of universal and equal suffrage, to take part in the government as well as in the conduct of public affairs at any level and to have equal access to public service;", "... ”", "The Concluding Observations on Bosnia and Herzegovina of the Committee on the Elimination of Racial Discrimination, the body of independent experts set up to monitor the implementation of this treaty, read, in the relevant part, as follows (document CERD/C/BIH/CO/6 of 11 April 2006, paragraph 11):", "“The Committee is deeply concerned that under Articles IV and V of the State Constitution, only persons belonging to a group considered by law to be one of Bosnia and Herzegovina ’ s ‘ constituent peoples ’ (Bosniaks, Croats, and Serbs), which group also constitutes the dominant majority within the Entity in which the person resides ( e.g. Bosniaks and Croats within the Federation of Bosnia and Herzegovina, and Serbs within the Republika Srpska), can be elected to the House of Peoples and to the tripartite Presidency of Bosnia and Herzegovina. The existing legal structure therefore excludes from the House of Peoples and the Presidency all persons who are referred to as ‘ Others ’, that is persons belonging to national minorities or ethnic groups other than Bosniaks, Croats, or Serbs. Although the tripartite structure of the State Party ’ s principal political institutions may have been justified, or even initially necessary to establish peace following the armed conflict within the territory of the State Party, the Committee notes that legal distinctions that favour and grant special privileges and preferences to certain ethnic groups are not compatible with Articles 1 and 5 (c) of the Convention. The Committee further notes that this is especially true when the exigency for which the special privileges and preferences were undertaken has abated. (Articles 1 (4) and 5 (c)).", "The Committee urges the State Party to proceed with amending the relevant provisions of the State Constitution and the Election Law, with a view to ensuring the equal enjoyment of the right to vote and to stand for election by all citizens irrespective of ethnicity.”", "20. The International Covenant on Civil and Political Rights, adopted under the auspices of the United Nations on 16 December 1966, entered into force in respect of Bosnia and Herzegovina on 6 March 1992. The following are its relevant provisions:", "Article 2 § 1", "“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”", "Article 25", "“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:", "(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;", "(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;", "(c) To have access, on general terms of equality, to public service in his country. ”", "Article 26", "“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”", "The Concluding Observations on Bosnia and Herzegovina of the United Nations Human Rights Committee, the body of independent experts set up to monitor the implementation of this treaty, read, in the relevant part, as follows (document CCPR/C/BIH/CO/1 of 22 November 2006, paragraph 8):", "“The Committee is concerned that after the rejection of the relevant constitutional amendment on 26 April 2006, the State Constitution and Election Law continue to exclude ‘ Others ’, i.e. persons not belonging to one of the State Party ’ s ‘ constituent peoples ’ (Bosniaks, Croats and Serbs), from being elected to the House of Peoples and to the tripartite Presidency of Bosnia and Herzegovina. ( Articles 2, 25 and 26).", "The State Party should reopen talks on the constitutional reform in a transparent process and on a wide participatory basis, including all stakeholders, with a view to adopting an electoral system that guarantees equal enjoyment of the rights under Article 25 of the Covenant to all citizens irrespective of ethnicity.”", "D. The Council of Europe", "21. In becoming a member of the Council of Europe in 2002, Bosnia and Herzegovina undertook to “review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary” (see Opinion 234(2002) of the Parliamentary Assembly of the Council of Europe of 22 January 2002, paragraph 15(iv)(b)). Thereafter, the Parliamentary Assembly of the Council of Europe has periodically reminded Bosnia and Herzegovina of this post-accession obligation and urged it to adopt a new constitution before October 2010 with a view to replacing “the mechanisms of ethnic representation by representation based on the civic principle, notably by ending the constitutional discrimination against ‘ Others ’ ” (see Resolution 1383 (2004) of 23 June 2004, paragraph 3; Resolution 1513 (2006) of 29 June 2006, paragraph 20; and Resolution 1626 (2008) of 30 September 2008, paragraph 8 ).", "22. The Venice Commission, the Council of Europe ’ s advisory body on constitutional matters, adopted a number of Opinions in this connection.", "The Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative ( document CDL-AD(2005)004 of 11 March 2005) reads, in the relevant part, as follows:", "“ 1. On 23 June 2004 the Parliamentary Assembly of the Council of Europe adopted Resolution 1384 on ‘ Strengthening of democratic institutions in Bosnia and Herzegovina ’. Paragraph 13 of the Resolution asks the Venice Commission to examine several constitutional issues in Bosnia and Herzegovina.", "...", "29. Bosnia and Herzegovina is a country in transition facing severe economic problems and desiring to take part in European integration. The country will only be able to cope with the numerous challenges resulting from this situation if there is a strong and effective government. The constitutional rules on the functioning of the State organs are however not designed to produce strong government but to prevent the majority from taking decisions adversely affecting other groups. It is understandable that in a post-conflict situation there was (and is) insufficient trust between ethnic groups to allow government on the basis of the majoritarian principle alone. In such a situation specific safeguards have to be found which ensure that all major groups, in Bosnia and Herzegovina the constituent peoples, can accept the constitutional rules and feel protected by them. As a consequence the Bosnia and Herzegovina Constitution ensures the protection of the interests of the constituent peoples not only through territorial arrangements reflecting their interests but also through the composition of the State organs and the rules on their functioning. In such a situation, a balance has indeed to be struck between the need to protect the interests of all constituent peoples on the one hand and the need for effective government on the other. However, in the Bosnia and Herzegovina Constitution, there are many provisions ensuring the protection of the interests of the constituent peoples, inter alia : the vital interest veto in the Parliamentary Assembly, the two - chamber system and the collective Presidency on an ethnic basis. The combined effect of these provisions makes effective government extremely difficult, if not impossible. Hitherto the system has more or less functioned due to the paramount role of the High Representative. This role is however not sustainable.", "The vital interest veto", "30. The most important mechanism ensuring that no decisions are taken against the interest of any constituent people is the vital interest veto. If the majority of the Bosniac, Croat or Serb delegates in the House of Peoples declare that a proposed decision of the Parliamentary Assembly is destructive to a vital interest of their people, the majority of Bosniac, Serb and Croat delegates have to vote for the decision for it to be adopted. The majority of delegates from another people may object to the invocation of the clause. In this case a conciliation procedure is foreseen and ultimately a decision is taken by the Constitutional Court as to the procedural regularity of the invocation. It is noteworthy that the Constitution does not define the notion of vital interest veto, contrary to the Entity Constitutions which provide a (excessively broad) definition.", "31. It is obvious, and was confirmed by many interlocutors, that this procedure entails a serious risk of blocking decision-making. Others argued that this risk should not be overestimated since the procedure has rarely been used and the Constitutional Court in a decision of 25 June 2004 started to interpret the notion [see decision U-8/04 on the vital interest veto against the Framework Law on Higher Education]. The decision indeed indicates that the Court does not consider that the vital interest is a purely subjective notion within the discretion of each member of parliament and which would not be subject to review by the Court. On the contrary, the Court examined the arguments put forward to justify the use of the vital interest veto, upheld one argument and rejected another.", "32. The Commission is nevertheless of the opinion that a precise and strict definition of vital interest in the Constitution is necessary. The main problem with veto powers is not their use but their preventive effect. Since all politicians involved are fully conscious of the existence of the possibility of a veto, an issue with respect to which a veto can be expected will not even be put to the vote. Due to the existence of the veto, a delegation taking a particularly intransigent position and refusing to compromise is in a strong position. It is true that further case-law from the Constitutional Court may provide a definition of the vital interest and reduce the risks inherent in the mechanism. This may however take a long time and it also seems inappropriate to leave such a task with major political implications to the Court alone without providing it with guidance in the text of the Constitution.", "33. Under present conditions within Bosnia and Herzegovina, it seems unrealistic to ask for a complete abolition of the vital interest veto. The Commission nevertheless considers that it would be important and urgent to provide a clear definition of the vital interest in the text of the Constitution. This definition will have to be agreed by the representatives of the three constituent peoples but should not correspond to the present definition in the Entity Constitutions which allows practically anything being defined as vital interest. It should not be excessively broad but focus on rights of particular importance to the respective peoples, mainly in areas such as language, education and culture.", "Entity veto", "34. In addition to the vital interest veto, Article IV § 3 ( d) of the Constitution provides for a veto by two-thirds of the delegation from either Entity. This veto, which in practice seems potentially relevant only for the Republika Srpska, appears redundant having regard to the existence of the vital interest veto.", "Bicameral system", "35. Article IV of the Constitution provides for a bicameral system with a House of Representatives and a House of Peoples both having the same powers. Bicameral systems are typical for federal States and it is therefore not surprising that the Bosnia and Herzegovina Constitution opts for two chambers. However, the usual purpose of the second chamber in federal States is to ensure a stronger representation of the smaller entities. One chamber is composed on the basis of population figures while in the other either all entities have the same number of seats (Switzerland, USA) or at least smaller entities are overrepresented (Germany). In Bosnia and Herzegovina this is quite different: in both chambers two-thirds of the members come from the Federation of Bosnia and Herzegovina, the difference being that in the House of Peoples only the Bosniacs and Croats from the Federation and the Serbs from the Republika Srpska are represented. The House of Peoples is therefore not a reflection of the federal character of the State but an additional mechanism favouring the interests of the constituent peoples. The main function of the House of Peoples under the Constitution is indeed as the chamber where the vital interest veto is exercised.", "36. The drawback of this arrangement is that the House of Representatives becomes the chamber where legislative work is done and necessary compromises are made in order to achieve a majority. The role of the House of Peoples is only negative as a veto chamber, where members see as their task to exclusively defend the interests of their people without having a stake in the success of the legislative process. It would therefore seem preferable to move the exercise of the vital interest veto to the House of Representatives and abolish the House of Peoples. This would streamline procedures and facilitate the adoption of legislation without endangering the legitimate interests of any people. It would also solve the problem of the discriminatory composition of the House of Peoples.", "The collective Presidency", "37. Article V of the Constitution provides for a collective Presidency with one Bosniac, one Serb and one Croat member and a rotating chair. The Presidency endeavours to take its decisions by consensus (Article V § 2 ( c ) ). In case of a decision by a majority, a vital interest veto can be exercised by the member in the minority.", "38. A collective Presidency is a highly unusual arrangement. As regards the representational functions of Head of State, these are more easily carried out by one person. At the top of the executive there is already one collegiate body, the Council of Ministers, and adding a second collegiate body does not seem conducive to effective decision-making. This creates a risk of duplication of decision-making processes and it becomes difficult to distinguish the powers of the Council of Ministers and of the Presidency. Moreover, the Presidency will either not have the required technical knowledge available within ministries or need substantial staff, creating an additional layer of bureaucracy.", "39. A collective Presidency therefore does not appear functional or efficient. Within the context of Bosnia and Herzegovina, its existence seems again motivated by the need to ensure participation by representatives from all constituent peoples in all important decisions. A single President with important powers seems indeed difficult to envisage for Bosnia and Herzegovina.", "40. The best solution therefore would be to concentrate executive power within the Council of Ministers as a collegiate body in which all constituent peoples are represented. Then a single President as Head of State should be acceptable. Having regard to the multi-ethnic character of the country, an indirect election of the President by the Parliamentary Assembly with a majority ensuring that the President enjoys wide confidence within all peoples would seem preferable to direct elections. Rules on rotation providing that a newly elected President may not belong to the same constituent people as his predecessor may be added.", "...", "74. In the present case, the distribution of posts in the State organs between the constituent peoples was a central element of the Dayton Agreement making peace in Bosnia and Herzegovina possible. In such a context, it is difficult to deny legitimacy to norms that may be problematic from the point of view of non-discrimination but necessary to achieve peace and stability and to avoid further loss of human lives. The inclusion of such rules in the text of the Constitution [of Bosnia and Herzegovina] at that time therefore does not deserve criticism, even though they run counter to the general thrust of the Constitution aiming at preventing discrimination.", "75. This justification has to be considered, however, in the light of developments in Bosnia and Herzegovina since the entry into force of the Constitution. Bosnia and Herzegovina has become a member of the Council of Europe and the country has therefore to be assessed according to the yardstick of common European standards. It has now ratified the [European Convention on Human Rights] and Protocol No. 12 [thereto]. As set forth above, the situation in Bosnia and Herzegovina has evolved in a positive sense but there remain circumstances requiring a political system that is not a simple reflection of majority rule but which guarantees a distribution of power and positions among ethnic groups. It therefore remains legitimate to try to design electoral rules ensuring appropriate representation for various groups.", "76. This can, however, be achieved without entering into conflict with international standards. It is not the system of consensual democracy as such which raises problems but the mixing of territorial and ethnic criteria and the apparent exclusion from certain political rights of those who appear particularly vulnerable. It seems possible to redesign the rules on the Presidency to make them compatible with international standards while maintaining the political balance in the country.", "77. A multi-ethnic composition can be ensured in a non-discriminatory way, for example by providing that not more than one member of the Presidency may belong to the same people or the Others and combining this with an electoral system ensuring representation of both Entities. Or, as suggested above, as a more radical solution which would be preferable in the view of the Commission, the collective Presidency could be abolished and replaced by an indirectly elected President with very limited powers.", "...", "80. The House of Peoples is a chamber with full legislative powers. Article 3 of Protocol No. 1 to the [European Convention on Human Rights] is thereby applicable and any discrimination on ethnic grounds is thereby prohibited by Article 14 of the [Convention]. As to a possible justification, the same considerations as with respect to the Presidency apply. While it is a legitimate aim to try to ensure an ethnic balance within Parliament in the interest of peace and stability, this can justify ethnic discrimination only if there are no other means to achieve this goal and if the rights of minorities are adequately respected. For the House of Peoples it would for example be possible to fix a maximum number of seats to be occupied by representatives from each constituent people. Or, as argued above, a more radical solution which would have the preference of the Commission, could be chosen and the House of Peoples simply be abolished and the vital national interest mechanism be exercised within the House of Representatives. ”", "The Opinion on different proposals for the election of the Presidency of Bosnia and Herzegovina (CDL-AD(2006)004 of 20 March 2006), in the relevant part, provides :", "“ 1. By letter dated 2 March 2006 the Chairman of the Presidency of Bosnia and Herzegovina, Mr Sulejman Tihić, asked the Venice Commission to provide an Opinion on three different proposals for the election of the Presidency of this country. This request was made in the framework of negotiations on constitutional reform between the main political parties in Bosnia and Herzegovina. The issue of the election of the Presidency remains to be resolved in order to reach agreement on a comprehensive reform package.", "...", "Comments on Proposal I", "8. Proposal I would consist of maintaining the present rules on the election and composition of the Presidency, with one Bosniac and one Croat elected from the territory of the Federation and one Serb elected from the territory of Republika Srpska. In its [ Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative] the Commission raised serious concerns as to the compatibility with Protocol No. 12 to the European Convention of Human Rights of such a rule, which formally excludes Others as well as Bosniacs and Croats from Republika Srpska and Serbs from the Federation from being elected to the Presidency. Maintaining this rule as it stands should therefore be excluded and Proposal I be rejected.", "Comments on Proposal II", "9. Proposal II, which is not drafted as text to be included in the Constitution but as a summary of possible constitutional content, maintains the system of directly electing two members of the Presidency from the Federation and one from Republika Srpska, however without mentioning any ethnic criteria for the candidates. The de jure discrimination pointed out in the Venice Commission Opinion would therefore be removed and adoption of this proposal would constitute a step forward. The Proposal also includes a rotation of the President of the Presidency every 16 months. Within the logic of a collective Presidency, this appears as a rational solution.", "10. By contrast, the Proposal lacks clarity as to the pluri-ethnic composition of the Presidency. The collective Presidency was introduced, and supposedly will now be maintained, in order to ensure that no single State organ is dominated by a representative of a single constituent people. As it stands, under the proposal it would be possible to, for example, elect two Bosniacs from the Federation to the Presidency. Legally, this drawback could be remedied in the framework of the Proposal by providing that not more than one member of the Presidency may belong at the same time to the same constituent people or the group of Others. It is the understanding of the Commission that the intention is indeed to include such a provision in the Constitution in case this proposal is adopted.", "11. However, the problem would result of having to possibly exclude from the Presidency candidates who have received a higher number of votes. In the Federation it is quite possible that two Bosniacs would attain the highest number of votes. In this case, a candidate who obtained more votes would have to be barred from the Presidency in favour of a candidate who obtained fewer votes. These issues should be regulated clearly at the level of the Constitution and not be left to ordinary law.", "12. As a further drawback, de facto Bosniacs and Croats from the Republika Srpska and Serbs from the Federation would also continue to have no realistic possibility to elect a candidate of their preference.", "13. Furthermore, the election of the Head of State would continue to take place on an Entity basis while it would be desirable to move it to the State level as part of the overall approach of strengthening the State.", "14. As a minor issue, the proposal would also allow members of the Presidency to hold a leadership position in a political party. This does not seem in line with the overall aim of constitutional reform of transforming the Presidency from an executive body into a (collective) Head of State.", "15. To sum up, Proposal II is a clear improvement with respect to the present constitutional situation. However, it has a number of drawbacks, including the risk that candidates with less votes than others are elected and it does not contribute to the overall aims of the constitutional reform of moving power to the Council of Ministers and strengthening the State level.", "Proposal III", "16. Proposal III differs more markedly from the present constitutional situation by introducing a complicated procedure of indirect elections for the Presidency. As set forth above, the main preference of the Commission is for the indirect election of a single President with reduced powers. But also in the case of a collective Presidency, the Commission maintains its preference for indirect elections.", "17. The reason is, first of all, that one of the main aims of the constitutional reform would be to reduce the powers of the Presidency and to concentrate executive power in the Council of Ministers. This change will be more difficult to bring about if the Presidency does have the legitimacy of a direct popular vote.", "18. Moreover, in an indirect election it is easier to devise mechanisms ensuring the desired pluri-ethnic composition of the Presidency. It offers more possibilities for inter-ethnic cooperation and compromise while direct elections for de facto separate ethnic slots provide an incentive to vote for the person considered as the strongest advocate of the respective constituent people and not for the candidate best suited to defend the interests of the country as a whole.", "19. Finally, the Proposal moves the election to the State Parliament. It is indeed desirable and in line with the overall aim of strengthening the State to have the election of the Head of State at this level.", "20. From the point of view of the overall approach, Proposal III therefore seems preferable. There are nevertheless some drawbacks.", "21. First of all, the proposal seems complicated with too many steps and possibilities for stalemate. Nominations can be put forward by members of the House of Representatives or the House of Peoples, the selection of the candidates takes place by the three separate ethnic caucuses in the House of Peoples and thereafter the slate of candidates has to be confirmed both by the three caucuses in the House of Peoples and by the House of Representatives.", "22. Within the parameters of the proposal, it would seem preferable to have a simpler procedure with more focus on the House of Representatives as the body having direct democratic legitimacy derived from the people as a whole. The possibility to nominate candidates should be reserved to members of the House of Representatives, selection among these candidates could take place in the three separate ethnic caucuses of the House of Peoples to ensure that the interests of all three constituent peoples are respected and the slate of candidates would have to be confirmed by the majority of the composition of the House of Representatives, ensuring that all three members have legitimacy as representatives of the people of Bosnia and Herzegovina as a whole.", "23. In addition, it should be clarified how the positions of the President and Vice-Presidents are to be distributed. As it stands, Proposal III leaves this important decision implicitly to backroom dealing between the three ethnic caucuses since a slate identifying President and Vice-Presidents has to be submitted to the House of Representatives, while no indication is provided on how this choice has to be made. This seems the worst possible solution and likely to lead to stalemate. The rotation envisaged by Proposal II seems more feasible.", "24. There are also other aspects of Proposal III which are not in accordance with the preferences of the Venice Commission. In its above-mentioned Opinion, the Commission argued in favour of abolishing the House of Peoples. Giving it a strong role in the selection of the Presidency cannot therefore be considered a positive step. The role of ethnic caucuses makes the election of candidates not belonging to a constituent people extremely unlikely. This is however not peculiar to this Proposal but reflects the political situation. The proposal at least ensures that the representatives of the Others in the House of Representatives will take part in the vote and that Serbs from the Federation and Bosniacs and Croats from Republika Srpska are no longer disadvantaged since their representatives in the State Parliament will be able to vote for the candidates of their choice.", "25. Even in the framework of a collective Presidency, solutions for indirect elections could be devised, which would appear preferable. For example, within the House of Representatives, slates of three candidates not coming from the same constituent people or the group of Others could be nominated and the vote could take place between such slates. This would nevertheless be a different proposal and not an amendment to Proposal III.", "26. To sum up, Proposal III is also a clear improvement with respect to the present situation. If it were to be adjusted as suggested in paragraphs 22 and 23, it would appear suitable as a solution (although not an ideal one) for the first stage of constitutional reform.", "Conclusions", "27. In conclusion, the Commission strongly welcomes that the political parties in Bosnia and Herzegovina have found the courage to try adopting a comprehensive constitutional reform before the forthcoming elections in October 2006. It acknowledges that a reform adopted at this stage can have an interim character only, as a step towards the comprehensive reform the country clearly needs.", "28. With respect to the three proposals submitted to the Commission, adoption of the first proposal could only be regarded as a failure of constitutional reform on this issue and should be excluded. By contrast, both Proposal II and Proposal III deserve, subject to some additions and amendments, to be considered at the present stage as important steps forward, but by no means as ideal solutions.", "29. Between Proposal II and Proposal III, the Commission would – though not without hesitation – give preference to Proposal III, subject to some adjustments as indicated above. An indirect election in line with the aim of the constitutional reform of reducing the powers of the Presidency makes it easier to ensure a balanced composition of the Presidency and thereby corresponds better to the raison d ’ être of this – unusual – institution. The Proposal also moves the election to the State level, in accordance with the overall aim to strengthen the State of Bosnia and Herzegovina. However, sight should not be lost of the ultimate aim of constitutional reform in this area: having in future a single President elected in a manner ensuring that he or she enjoys trust beyond the ethnic group to which he or she belongs. ”", "The relevant part of the Opinion on the draft amendments to the Constitution of Bosnia and Herzegovina (CDL-AD(2006)019 of 12 June 2006) provides as follows:", "“ 1. By letter dated 21 March 2006 the Chairman of the Presidency of Bosnia and Herzegovina, Mr Sulejman Tihić, asked the Venice Commission to give an Opinion on the text of the agreement on the modalities of the first phase of constitutional reform reached by the leaders of political parties in Bosnia and Herzegovina on 18 March 2006. Since the constitutional reform has to be adopted urgently in order to make it possible to take it into account at the parliamentary elections scheduled for October 2006, he expressed the wish to receive the Opinion of the Venice Commission ‘ shortly ’.", "...", "Amendment II to Article IV of the Constitution on the Parliamentary Assembly", "...", "22. The main aim of the Amendment is to move from a bicameralism with two equal chambers to a new system where the House of Peoples ... would have only limited powers with a focus on the vital national interests veto. The new structure of the Article, systematically putting the House of Representatives ... first, reflects this aim. The reform would be a step in the direction of the Venice Commission recommendation to abolish the [ House of Peoples ] and to streamline decision-making within the State institutions.", "...", "24. Sub-section (d) would increase the number of members of the [ House of Peoples ] from 15 to 21. The justification of the increase in the membership of this House is less apparent since its powers are greatly reduced. Nevertheless, this is an issue entirely within the discretion of the national authorities. If they feel that this increase is required to ensure that the House adequately represents the political spectrum, this step seems justifiable.", "25. More problematic is the circumstance that membership in this House remains limited under sub-section (d) to people belonging to one of the three constituent peoples. In its Opinion [on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative] the Venice Commission noted that the previous composition of this House along similar lines seemed to contradict Article 14 of the [European Convention on Human Rights] in conjunction with Article 3 of [ Protocol No. 1 ].", "26. Following the reform the House of Peoples would however no longer be a full legislative chamber but a body dealing mainly with the vital national interests veto. It seems therefore questionable whether Article 3 of [ Protocol No. 1 ] and thereby Article 14 of the [Convention] would still be applicable. The problem of the compatibility of this provision with Protocol No. 12 [to the Convention ] remains however. In the absence of any case-law on this Protocol, it can be interpreted only with prudence. ...", "27. In the present case the legitimate aim could be seen in the main role of the House as a body in which the vital national interests veto is exercised. The [ Bosnia and Herzegovina ] Constitution reserves the right to exercise this veto to the three constituent peoples and does not give it to the Others. From that perspective it would not seem required to include ‘ Others ’ in the composition of this House. The other responsibilities of the House, to participate in the election of the Presidency and to approve constitutional amendments – though not beyond criticism –, do not lead to a different result. They show that the function of the [ House of Peoples ] is to be a corrective mechanism, ensuring that the application of the democratic principle reflected in the composition of the [ House of Representatives ] does not disturb the balance among the three constituent peoples. The need for such a mechanism seems still to be felt in [ Bosnia and Herzegovina ]. In that case it seems possible to regard this need as a legitimate aim justifying an unequal treatment of Others in respect to representation in the [ House of Peoples ].", "...", "Amendment III to Article V of the Constitution on the Presidency", "43. The main aim of the Amendments is to strengthen the powers of the Council of Ministers and increase its efficiency and reduce the role of the Presidency. This is entirely in line with the Opinion [on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative] of the Venice Commission. In addition, the Commission would have preferred having a single President instead of a collective Presidency. This does however not seem politically possible at the moment. Nevertheless Amendment III takes a first step in this direction.", "...", "46. The Venice Commission adopted an Opinion on the three alternative proposals for electing the Presidency at its last session (CDL-AD(2006)004). It would serve no purpose to re-open this discussion at the present moment. The absence of a dead-lock breaking mechanism if the [ House of Representatives ] refuses to confirm the proposal of the [ House of Peoples ] is however a concern.", "... ”", "23. The European Commission against Racism and Intolerance (ECRI) is the Council of Europe ’ s independent human rights monitoring body specialised in combating racism, racial discrimination, xenophobia, anti -Semitism and intolerance. In its General Policy Recommendation No. 7, adopted on 13 December 2002, ECRI defines racism as “the belief that a ground such as race [6], colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons”.", "E. The OSCE", "24. In a report concerning the general elections held in 2006, the OSCE Office for Democratic Institutions and Human Rights, the lead agency in Europe in election observation, held as follows :", "“ The 1 October general elections in Bosnia and Herzegovina were the first elections since the 1995 Dayton Agreement to be fully administered by the Bosnia and Herzegovina authorities. The manner in which these elections were conducted was generally in line with international standards for democratic elections, although further efforts are needed, particularly with regard to the vote count. Therefore, overall, the elections represented further progress in the consolidation of democracy and the rule of law. However, it was regrettable that, due to constitutional ethnicity-based limitations to the right to stand for office, the elections were again in violation of Protocol No. 12 to the European Convention on Human Rights (ECHR) and of the commitments made to the Council of Europe, as well as Article 7.3 of the OSCE 1990 Copenhagen Document.”", "F. The European Union", "25. In 2008 Bosnia and Herzegovina signed and ratified a Stabilisation and Association Agreement with the European Union and thereby committed itself to addressing the European Partnership priorities. One of the key priorities for Bosnia and Herzegovina, expected to be accomplished within one to two years, is to “amend electoral legislation regarding members of the Bosnia and Herzegovina Presidency and House of Peoples delegates to ensure full compliance with the European Convention on Human Rights and the Council of Europe post-accession commitments ” (see Annex to Council Decision 2008/211/EC of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership with Bosnia and Herzegovina and repealing Decision 2006/55/EC, Official Journal of the European Union L 0 80 ( 19 March 2008) ).", "On 14 October 2009 the European Commission adopted its annual strategy document explaining its policy on enlargement. On the same date the 2009 progress reports were published, in which the Commission services monitor and assess the achievements of each of the candidate countries and potential candidates (such as Bosnia and Herzegovina) over the last year.", "THE LAW", "I. THE APPLICANTS ’ PRINCIPAL COMPLAINTS", "26. The applicants took issue with their ineligibility to stand for election to the House of Peoples and the Presidency on the ground of their Roma and Jewish origin, which, in their view, amounted to racial discrimination. They relied on Article 14 of the Convention, Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12.", "Article 14 of the Convention provides :", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 3 of Protocol No. 1 provides:", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "Article 1 of Protocol No. 12 to the Convention provides :", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "A. Admissibility", "27. Although the respondent State did not raise any objection as to the Court ’ s competence ratione personae, this issue calls for consideration ex officio by the Court.", "1. Whether the applicants may claim to be “victims”", "28. It is reiterated that in order to be able to lodge a petition by virtue of Article 34 of the Convention, a person, non-governmental organisation or group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure. The Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. It is, however, open to applicants to contend that a law violates their rights, in the absence of an individual measure of implementation, if they belong to a class of people who risk being directly affected by the legislation or if they are required either to modify their conduct or risk being prosecuted (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 33 ‑ 34, ECHR 2008, and the authorities cited therein ).", "29. In the present case, given the applicants ’ active participation in public life, it would be entirely coherent that they would in fact consider running for the House of Peoples or the Presidency. The applicants may therefore claim to be victims of the alleged discrimination. The fact that the present case raises the question of the compatibility of the national Constitution with the Convention is irrelevant in this regard (see, by analogy, Rekvényi v. Hungary [GC], no. 25390/94, ECHR 1999 ‑ III).", "2. Whether the respondent State may be held responsible", "30. The Court notes that the Constitution of Bosnia and Herzegovina is an annex to the Dayton Agreement, itself an international treaty (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII). The power to amend it was, however, vested in the Parliamentary Assembly of Bosnia and Herzegovina, which is clearly a domestic body (see paragraph 15 above). In addition, the practice set out in paragraph 17 above confirms that the powers of the international administrator for Bosnia and Herzegovina (the High Representative) do not extend to the State Constitution. In those circumstances, leaving aside the question whether the respondent State could be held responsible for putting in place the contested constitutional provisions (see paragraph 13 above), the Court considers that it could nevertheless be held responsible for maintaining them.", "3. Conclusion", "31. The Court declares the applicants ’ principal complaints admissible.", "B. Merits", "1. The applicants ’ submissions", "32. Despite being citizens of Bosnia and Herzegovina, the applicants are denied by the Constitution any right to stand for election to the House of Peoples and the Presidency on the grounds of their race/ethnicity (ethnic discrimination has been held by the Court to be a form of racial discrimination in Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII ). The applicants submitted that difference in treatment based expressly on race or ethnicity was not capable of justification and amounted to direct discrimination. In this regard, they referred to the Court ’ s case-law (notably, Timishev, cited above, § 58, and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 176, ECHR 2007 ‑ IV ) and to European Union legislation ( such as Council Directive 2000/43/EC of 29 June 2000 – the “Race Directive” – implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, which in Article 2 explicitly included under its definition of indirect discrimination the possibility of objectively justifying the treatment, but made no such justification possible under its definition of direct discrimination). They further submitted that this impossibility of justification was particularly important in a case concerning the right to stand for election (they referred to Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004 ‑ V).", "33. Even on the assumption that a justification was possible, the applicants maintained that the respondent Government would still bear a very heavy burden when seeking to establish an objective and reasonable justification, given both the basis of the complaint (direct racial and ethnic discrimination) and the areas to which it applied (political participation and representation at the highest level of State). Furthermore, the length of time during which the exclusion had continued increased even more the burden on the respondent Government to justify it ( they referred to a decision of the United Nations Human Rights Committee of 8 April 1981 in the case of Silva and Others v. Uruguay, § 8.4). The applicants concluded that the respondent Government had failed to demonstrate that the difference in treatment was justified in the instant case.", "2. The Government ’ s submissions", "34. The Government referred to the case of Ždanoka v. Latvia ( [GC], no. 58278/00, ECHR 2006 ‑ IV ), in which the Court had reaffirmed that the Contracting Parties enjoyed considerable latitude in establishing rules within their constitutional order to govern parliamentary elections and the composition of the parliament, and that the relevant criteria could vary according to the historical and political factors peculiar to each State. The current constitutional structure in Bosnia and Herzegovina was established by a peace agreement following one of the most destructive conflicts in recent European history. Its ultimate goal was the establishment of peace and dialogue between the three main ethnic groups – the “constituent peoples”. The Government maintained that the contested constitutional provisions, excluding persons who did not declare affiliation with a “constituent people” from the House of Peoples and the Presidency, should be assessed against this background. They claimed that the time was still not ripe for a political system which would be a simple reflection of majority rule, given, in particular, the prominence of mono-ethnic political parties and the continued international administration of Bosnia and Herzegovina.", "35. The Government invited the Court to distinguish the present case from the case of Aziz ( cited above ) : while Turkish Cypriots living in the Government-controlled area of Cyprus were prevented from voting at any parliamentary election, citizens of Bosnia and Herzegovina belonging to the group of “others” (such as the applicants in the present case) were entitled to stand as candidates for election to the House of Representatives of Bosnia and Herzegovina and the Entities ’ legislatures. They concluded that the difference in treatment was justified in the particular circumstances.", "3. The third parties ’ submissions", "36. The Venice Commission, in its submissions of 22 October 2008, took the view that the constitutional provisions contested in the present case breached the prohibition of discrimination. These submissions were along the lines of the Opinions cited in paragraph 22 above.", "37. The AIRE Centre and the Open Society Justice Initiative, in their submissions of 15 August 2008, argued likewise. Based on an analysis of the Contracting Parties ’ legal systems, the AIRE Centre concluded that a European consensus had emerged that it was appropriate to withdraw an individual ’ s right to stand for office only as a result of his or her conduct, as opposed to innate or inalienable characteristics. The Open Society Justice Initiative underlined that political participation represented one of the rights and responsibilities that maintained the legal bond between a citizen and a State. In most jurisdictions, the rights to vote, to be elected and to stand for office were what most clearly distinguished a citizen from an alien. Restrictions on these rights, particularly on the suspect grounds of race and ethnicity, were, therefore, not only discriminatory, but undermined the meaning of citizenship itself. Aside from being an important right linked with citizenship, political participation was particularly important for ethnic minorities and essential to overcoming their marginalization and bringing them into the mainstream. This was particularly true following an ethnic conflict, where legally entrenched distinctions based on ethnicity could exacerbate tensions, rather than fostering the constructive and sustainable relations between all ethnicities that were essential to a viable multiethnic State.", "4. The Court ’ s assessment", "(a) As regards the House of Peoples of Bosnia and Herzegovina", "38. The applicants relied on Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1, Article 3 of Protocol No. 1 taken alone and Article 1 of Protocol No. 12. The Court considers that this complaint should first be examined under the first-mentioned provisions.", "( i ) The applicability of Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1", "39. It is noted that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts at issue fall “within the ambit” of one or more of the latter (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 71, Series A no. 94; Petrovic v. Austria, 27 March 1998, § 22, Reports of Judgments and Decisions 1998-II; and Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII ). The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols require each State to guarantee. It applies also to those additional rights falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court ’ s case-law (see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ” v. Belgium ( merits), 23 July 1968, § 9, Series A no. 6; Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X; and E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008 ).", "40. The Court must decide, therefore, whether elections to the House of Peoples of Bosnia and Herzegovina fall within the “ambit” or “scope” of Article 3 of Protocol No. 1. In this connection, it is reiterated that this provision applies only to elections of a “legislature”, or at least of one of its chambers if it has two or more. However, the word “legislature” has to be interpreted in the light of each State ’ s constitutional structure (see Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999-I) and, in particular, its constitutional traditions and the scope of the legislative powers of the chamber in question. Furthermore, the travaux préparatoires demonstrate (vol. VIII, pp. 46, 50 and 52) that the Contracting Parties took into account the particular position of certain parliaments which included non-elective chambers. Thus, Article 3 of Protocol No. 1 was carefully drafted so as to avoid terms which could be interpreted as an absolute obligation to hold elections for both chambers in each and every bicameral system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53, Series A no. 113). At the same time, however, it is clear that Article 3 of Protocol No. 1 applies to any of a parliament ’ s chambers to be filled through direct elections.", "41. As regards the House of Peoples of Bosnia and Herzegovina, the Court notes that its composition is the result of indirect elections, its members being appointed by the Entities ’ legislatures. In addition, the Court observes that the extent of the legislative powers enjoyed by it is a decisive factor here. The House of Peoples indeed enjoys wide powers to control the passage of legislation : Article IV § 3 (c) of the Constitution specifically provides that no legislation can be adopted without the approval of both chambers. Furthermore, the House of Peoples, together with the House of Representatives, decides upon the sources and amounts of revenues for the operations of the State institutions and international obligations of Bosnia and Herzegovina and approves a budget of the State institutions (see Article IV § 4 (b)-(c) of the Constitution). Lastly, its consent is necessary before a treaty can be ratified (see Articles IV § 4 (d) and V § 3 (d) of the Constitution). Elections to the House of Peoples, therefore, fall within the scope of Article 3 of Protocol No. 1.", "Accordingly, Article 14 taken in conjunction with Article 3 of Protocol No. 1 is applicable.", "( ii ) Compliance with Article 14 taken in conjunction with Article 3 of Protocol No. 1", "42. The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” ( see, among many authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 81, ECHR 2009 ). The scope of a Contracting Party ’ s margin of appreciation in this sphere will vary according to the circumstances, the subject matter and the background ( ibid. , § 82 ).", "43. Ethnicity and race are related concepts. Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies on the basis of morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked in particular by common nationality, religious faith, shared language, or cultural and traditional origins and backgrounds. Discrimination on account of a person ’ s ethnic origin is a form of racial discrimination (see the definition adopted by the International Convention on the Elimination of All Forms of Racial Discrimination in paragraph 19 above and that adopted by the European Commission against Racism and Intolerance in paragraph 23 above ). Racial discrimination is a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of enrichment ( see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII, and Timishev, cited above, § 56).", "44. In this context, where a difference in treatment is based on race or ethnicity, the notion of objective and reasonable justification must be interpreted as strictly as possible ( see D.H. and Others, cited above, § 196). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person ’ s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures ( ibid. , § 176 ). That being said, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article ( see Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, cited above, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV; and D.H. and Others, cited above, § 175 ).", "45. Turning to the present case, the Court observes that in order to be eligible to stand for election to the House of Peoples of Bosnia and Herzegovina, one has to declare affiliation with a “constituent people”. The applicants, who describe themselves to be of Roma and Jewish origin respectively and who do not wish to declare affiliation with a “constituent people”, are, as a result, excluded (see paragraph 11 above). The Court notes that this exclusion rule pursued at least one aim which is broadly compatible with the general objectives of the Convention, as reflected in the Preamble to the Convention, namely the restoration of peace. When the impugned constitutional provisions were put in place a very fragile ceasefire was in effect on the ground. The provisions were designed to end a brutal conflict marked by genocide and “ ethnic cleansing ”. The nature of the conflict was such that the approval of the “constituent peoples” (namely, the Bosniacs, Croats and Serbs) was necessary to ensure peace. This could explain, without necessarily justifying, the absence of representatives of the other communities (such as local Roma and Jewish communities) at the peace negotiations and the participants ’ preoccupation with effective equality between the “constituent peoples” in the post-conflict society.", "46. It is nevertheless the case that the Court is only competent ratione temporis to examine the period after the ratification of the Convention and Protocol No. 1 thereto by Bosnia and Herzegovina. The Court does not need to decide whether the upholding of the contested constitutional provisions after ratification of the Convention could be said to serve a “ legitimate aim ” since for the reasons set out below the maintenance of the system in any event does not satisfy the requirement of proportionality.", "47. To begin with, the Court observes significant positive developments in Bosnia and Herzegovina since the Dayton Agreement. It is true that progress might not always have been consistent and challenges remain (see, for example, the latest progress report on Bosnia and Herzegovina as a potential candidate for European Union membership prepared by the European Commission and published on 14 October 2009, SEC ( 2009 ) 1338 ). It is nevertheless the case that in 2005 the former parties to the conflict surrendered their control over the armed forces and transformed them into a small, professional force; in 2006 Bosnia and Herzegovina joined NATO ’ s Partnership for Peace; in 2008 it signed and ratified a Stabilisation and Association Agreement with the European Union; in March 2009 it successfully amended the State Constitution for the first time; and it has recently been elected a member of the United Nations Security Council for a two-year term beginning on 1 January 2010. Furthermore, whereas the maintenance of an international administration as an enforcement measure under Chapter VII of the United Nations Charter implies that the situation in the region still constitutes a “threat to international peace and security”, it appears that preparations for the closure of that administration are under way (see a joint report by Mr Javier Solana, the European Union ’ s High Representative for Common Foreign and Security Policy, and Mr Olli Rehn, European Union Commissioner for Enlargement, on “ EU ’ s Policy in Bosnia and Herzegovina: The Way Ahead ” of 10 November 2008, and a report by the International Crisis Group on “ Bosnia ’ s Incomplete Transition: Between Dayton and Europe ” of 9 March 2009).", "48. In addition, while the Court agrees with the Government that there is no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time may still not be ripe for a political system which would be a simple reflection of majority rule, the Opinions of the Venice Commission (see paragraph 22 above ) clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities. In this connection, it is noted that the possibility of alternative means achieving the same end is an important factor in this sphere ( see Glor v. Switzerland, no. 13444/04, § 94, ECHR 2009 ).", "49. Lastly, by becoming a member of the Council of Europe in 2002 and by ratifying the Convention and the Protocols thereto without reservations, the respondent State has voluntarily agreed to meet the relevant standards. It has specifically undertaken to “review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary” (see paragraph 21 above). Likewise, by ratifying a Stabilisation and Association Agreement with the European Union in 2008, the respondent State committed itself to “amend [ing] electoral legislation regarding members of the Bosnia and Herzegovina Presidency and House of Peoples delegates to ensure full compliance with the European Convention on Human Rights and the Council of Europe post-accession commitments” within one to two years (see paragraph 25 above).", "50. Thus, the Court concludes that the applicants ’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lacks an objective and reasonable justification and has therefore breached Article 14 taken in conjunction with Article 3 of Protocol No. 1.", "( iii ) The complaints under Article 3 of Protocol No. 1 taken alone or under Article 1 of Protocol No. 12", "51. Having regard to its finding in the preceding paragraph, the Court considers that it is not necessary to examine separately whether there has also been a violation of Article 3 of Protocol No. 1 taken alone or under Article 1 of Protocol No. 12 as regards the House of Peoples.", "(b) As regards the Presidency of Bosnia and Herzegovina", "52. The applicants relied on Article 1 of Protocol No. 12 only.", "(i) The applicability of Article 1 of Protocol No. 12", "53. The Court notes that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “ the rights and freedoms set forth in [the] Convention ”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition of discrimination.", "54. The applicants contested constitutional provisions rendering them ineligible to stand for election to the Presidency of Bosnia and Herzegovina. Therefore, whether or not elections to the Presidency fall within the scope of Article 3 of Protocol No. 1 (see Boškoski v. “the former Yugoslav Republic of Macedonia ” (dec.), no. 11676/04, ECHR 2004 ‑ VI), this complaint concerns a “right set forth by law” (see sections 1.4 and 4.19 of the Election Act 2001 – see paragraph 18 above) which makes Article 1 of Protocol No. 12 applicable. This has not been contested before the Court.", "(ii) Compliance with Article 1 of Protocol No. 12", "55. The notion of discrimination has been interpreted consistently in the Court ’ s jurisprudence concerning Article 14 of the Convention. In particular, this jurisprudence has made it clear that “ discrimination ” means treating differently, without an objective and reasonable justification, persons in similar situations (see paragraphs 42 - 44 above and the authorities cited therein ). The authors used the same term, “ discrimination ”, in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraph 18 of the Explanatory Report to Protocol No. 12). The Court does not therefore see any reason to depart from the settled interpretation of “discrimination”, noted above, in applying the same term under Article 1 of Protocol No. 12 (as regards the case-law of the United Nations Human Rights Committee on Article 26 of the International Covenant on Civil and Political Rights, a provision similar – although not identical – to Article 1 of Protocol No. 12 to the Convention, see Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, N.P. Engel Publishers, 2005, pp. 597-634 ).", "56. The lack of a declaration of affiliation by the present applicants with a “ constituent people ” also rendered them ineligible to stand for election to the Presidency. An identical constitutional precondition has already been found to amount to a discriminatory difference in treatment in breach of Article 14 as regards the House of Peoples (see paragraph 50 above) and, moreover, the notions of discrimination prohibited by Article 14 and by Article 1 of Protocol No. 12 are to be interpreted in the same manner ( see paragraph 55 above ). It follows that the constitutional provisions which render the applicants ineligible for election to the Presidency must also be considered discriminatory and a breach of Article 1 of Protocol No. 12, the Court not considering that there is any pertinent distinction to be drawn in this regard between the House of Peoples and the Presidency of Bosnia and Herzegovina.", "Accordingly, and for the detailed reasons outlined in paragraphs 47 - 49 above in the context of Article 14, the Court finds that the impugned precondition for eligibility for election to the Presidency constitutes a violation of Article 1 of Protocol No. 12.", "II. THE APPLICANTS ’ REMAINING COMPLAINTS", "A. Article 3 of the Convention", "57. The first applicant submitted that his ineligibility to stand for election to the House of Peoples and the Presidency on the ground of his Roma origin effectively reduced him and other members of the Roma community as well as other members of national minorities in Bosnia and Herzegovina to the status of second- class citizens. This, in his view, amounted to a special affront to his human dignity in breach of Article 3 of the Convention, which provides :", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "58. The Court has held in previous cases that racial discrimination could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 (see East African Asians v. the United Kingdom, nos. 4403/70 and others, Commission ’ s report of 14 December 1973, p. 62, § 208, Decisions and Reports 78 -A, and Cyprus v. Turkey [GC], no. 25781/94, § 310, ECHR 2001 ‑ IV). In the present case, however, the Court observes that the difference of treatment complained of did not denote any contempt or lack of respect for the personality of the applicant and that it was not designed to, and did not, humiliate or debase but was intended solely to achieve the aim referred to in paragraph 45 above.", "This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.", "B. Article 13 of the Convention", "59. The applicants complained under Article 13 of the Convention that they had not had an effective domestic remedy for their discrimination complaints. Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "60. The Court reiterates that Article 13 does not guarantee a remedy allowing a challenge to primary legislation before a national authority on the ground of being contrary to the Convention ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 135, ECHR 2009). Since the present case concerns the content of constitutional provisions, as opposed to an individual measure of implementation, the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "61. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "62. The applicants made no claim in respect of pecuniary damage. In respect of non-pecuniary damage, the first applicant claimed 20,000 euros (EUR) and the second applicant EUR 12,000. The Government maintained that the claims were unjustified.", "63. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.", "B. Costs and expenses", "64. The first applicant was represented pro bono and he only claimed EUR 1,000 for his counsel ’ s appearance at the hearing before the Court on 3 June 2009. The second applicant claimed EUR 33,321 for the entire case. This included 270 hours worked by his two counsel and another member of the legal team, Ms Cynthia Morel of the Minority Rights Group International, at EUR 82.45 per hour in preparing the application, observations and just satisfaction claim before the Chamber and Grand Chamber, together with disbursements such as an expert report by Mr Zoran Pajić of Expert Consultancy International Ltd, meetings of the legal team with the applicant in New York and Sarajevo, and the costs of the hearing before the Grand Chamber. The applicant explained that involvement of a third lawyer, Ms Cynthia Morel, had been necessary given the range and complexity of issues to be addressed.", "65. The Government maintained that the above claims were unnecessarily incurred and excessive. In particular, they contested the need for the second applicant to use foreign -based lawyers, whose fees were incomparably higher than those of local lawyers, and whose appointment had had the effect of inflating the expenses for travel and communication.", "66. The Court disagrees with the Government that applicants must choose locally-based lawyers to represent them before the Court, notwithstanding the fact that such lawyers may be able to offer a service of the same quality as foreign-based lawyers (as evidenced in the present case). Accordingly, the disparity between the amounts claimed in the present case is not sufficient in itself to render the higher of them unnecessary or unreasonable. That being said, the Court considers the amount claimed by the second applicant to be excessive and awards the second applicant EUR 2 0 ,000 under this head. The first applicant ’ s costs and expenses should be met in full.", "C. Default interest", "67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. Mr Ján Čonka, Mrs Mária Čonková, Miss Nad'a Čonková and Miss Nikola Čonková are Slovakian nationals of Roma origin who were born in 1960, 1961, 1985 and 1991 respectively. The first two applicants are the parents of the third and fourth applicants.", "8. The applicants say that on several occasions between March and November 1998 they were violently assaulted by skinheads in the Slovak Republic. Indeed, in November 1998 Mr Čonka had been so seriously injured in an assault that he had had to be hospitalised. The police had been called but had refused to intervene. Several days later Mr and Mrs Čonka had been subjected to renewed insults and threats by skinheads, but the police had again refused to intervene.", "As a result of those constant threats, the applicants had decided to flee Slovakia and travel to Belgium, where they had arrived at the beginning of November 1998: Mr Čonka and the two minor children on 6 November and Mrs Čonka two days later.", "A. The applicants' request for asylum", "9. On 12 November 1998 the applicants requested political asylum in Belgium.", "10. On 3 March 1999 their applications for asylum were declared inadmissible by the Minister of the Interior through the Directorate-General of the Aliens Office on the ground that they had not produced sufficient evidence to show that their lives were at risk in Slovakia for the purposes of the Geneva Convention relating to the Status of Refugees. The decisions refusing permission to remain in Belgium were accompanied by a decision refusing permission to enter the territory itself, endorsed with an order to leave the territory within five days.", "11. On 5 March 1999 the applicants lodged an appeal under the urgent-applications procedure with the Commissioner-General for Refugees and Stateless Persons (“the Commissioner-General”) against the decisions refusing them permission to remain in Belgium.", "12. On 14 April 1999 Mr Čonka was invited to attend the Commissioner-General's Office to set out his grounds for seeking asylum. He failed to keep the appointment.", "13. On 23 April 1999 Mrs Čonková, assisted by an interpreter, was heard by representatives of the Commissioner-General's Office at Ghent Prison, where she was in custody pending trial. On 17 May 1999 she was sentenced to eight months' imprisonment for theft by the Ghent Criminal Court.", "14. On 18 June 1999 the Commissioner-General's Office upheld the decision of the Aliens Office refusing the applicants permission to remain. Its decision in Mr Čonka's case was based on his failure to attend his appointment without showing due cause. As regards Mrs Čonková, in some two pages of reasons the Commissioner-General pointed out major discrepancies in her deposition and expressed serious doubts about her credibility.", "For example, Mrs Čonková had declared among other things that on 4 November 1998 her husband, Mr Čonka, had been assaulted by skinheads so violently that he had had to be taken to hospital. The police had been called but had not come out. That incident had been the direct cause of their decision to flee Slovakia. However, the Commissioner-General considered that statement to be refuted by the fact that the travel tickets had been issued before the above incident of 4 November: Mrs Čonková's plane ticket on 2 October and her husband's and their children's bus tickets for the journey to Belgium on 2 November 1998. Furthermore, Mrs Čonková's account of the incident did not match her stepdaughter's, in particular on the important issue of whether the police had attended the scene.", "The Commissioner-General stipulated in his decisions that the applicants could be deported to the country from which they had fled (Slovakia), and that for the purposes of calculating the five-day period for leaving the territory, which had been suspended by the application under the urgent procedure, time began to run again from the date of service of the decisions on the applicants.", "15. On 24 June 1999 Mrs Čonková was released and a new order was served on her to leave the territory within five days, that is to say by midnight on 29 June.", "16. On 3 August 1999 the applicants lodged applications with the Conseil d'Etat for judicial review of the decision of 18 June 1999 and for a stay of execution under the ordinary procedure. They also applied for legal aid.", "17. On 23 September 1999 the Conseil d'Etat dismissed the applications for legal aid on the grounds that they had not been accompanied by the means certificate required by Article 676-3 of the Judicial Code, a photocopy, rather than the original, of the certificate having been enclosed with Mrs Čonková's application. Consequently, the applicants were invited by the orders refusing legal aid to pay the court fees within fifteen days after service. As they failed to respond to that invitation, their applications for judicial review and for a stay of execution were struck out of the list on 28 October 1999.", "B. The applicants' arrest and deportation", "18. At the end of September 1999 the Ghent police sent a notice to a number of Slovakian Roma families, including the applicants, requiring them to attend the police station on 1 October 1999. The notice was drafted in Dutch and Slovak and stated that their attendance was required to enable the files concerning their applications for asylum to be completed.", "19. At the police station, where a Slovak-speaking interpreter was also present, the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and their detention for that purpose. The documents served, which were all in identical terms, informed the recipients that they could apply to the Conseil d'Etat for judicial review of the deportation order and for a stay of execution – provided that they did so within sixty days of service of the decision – and to the committals division ( chambre du conseil ) of the criminal court against the order for their detention. According to the Government, some of the aliens concerned were nevertheless allowed to leave the police station of their own free will on humanitarian grounds or for administrative reasons.", "20. A few hours later the applicants and other Roma families, accompanied by an interpreter, were taken to a closed transit centre, known as “Transit Centre 127 bis ”, at Steenokkerzeel near Brussels Airport. It appears that the interpreter only remained at the centre briefly. According to the Government, he could have been recalled to the centre at the applicants' request. The applicants say that they were told that they had no further remedy against the deportation order.", "21. While at the centre, the Slovakian families received visits from a delegation of Belgian members of Parliament, the Slovakian Consul, delegates of various non-governmental organisations and doctors. At 10.30 p.m. on Friday 1 October 1999 the applicants' counsel, Mr van Overloop, was informed by the President of the Roma Rights League that his clients were in custody. Taking the view that he was still instructed by them, Mr van Overloop sent a fax on 4 October 1999 to the Aliens Office informing it that the applicants were in Transit Centre 127 bis awaiting repatriation to Slovakia. He requested that no action be taken to deport them, as they had to take care of a member of their family who was in hospital. However, Mr van Overloop did not appeal against the deportation or detention orders made on 29 September 1999.", "22. On 5 October 1999 the families concerned were taken to Melsbroek Military Airport, where the seat numbers allocated to them in the aircraft were marked on their hands with a ballpoint pen. The aircraft left Belgium for Slovakia at 5.45 p.m.", "23. Shortly afterwards the Minister of the Interior declared in reply to a parliamentary question put on 23 December 1999 :", "“Owing to the large concentration of asylum-seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia. ... Reports I have received from the mayor of Ghent and the Director-General of the Aliens Office indicate that the operation was properly prepared, even if the unfortunate wording of the letter sent by the Ghent police to some of the Slovaks may have been misleading. Both the Aliens Office and the Ghent Police Department were surprised by the large number of Slovaks who responded to the notice sent to them. That factual circumstance resulted in their being detained in Transit Centre 127 bis for deportation a few days later. ...”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Aliens Act", "24. The procedure relating to the recognition of refugee status is governed under Belgian law by the Law of 15 December 1980 on the entry, residence, settlement and expulsion of aliens (“the Aliens Act”) and by the Royal Decree of 8 October 1981 on the entry, residence, settlement and expulsion of aliens.", "The procedure for according refugee status is in two stages. The first concerns admissibility for refugee status, while the second concerns eligibility for such status.", "The authorities with jurisdiction to take part in the examination of the issue of admissibility are the Aliens' Office and, on appeal, the Commissioner-General for Refugees and Stateless Persons, as administrative authorities, and the Conseil d'Etat, which hears applications for judicial review. The relevant authorities at the eligibility stage are the Commissioner-General for Refugees and Stateless Persons, as the administrative authority, the Permanent Tribunal for Refugees' Appeals, as an administrative tribunal, and the Conseil d'Etat, which hears administrative appeals on points of law. Lastly, the committals division ( chambre du conseil ) of the criminal court has jurisdiction to hear appeals against orders depriving aliens of their liberty during or at the end of the proceedings (see below).", "25. The provisions of the Aliens Act applicable in the instant case read as follows:", "Section 6", "“Except where permitted by international treaty, statute or royal decree, aliens may not stay more than three months in the Kingdom, unless a different period is stipulated in the visa or the authorisation in lieu stamped in their passport or on the travel document issued in lieu thereof.", "...”", "Section 7", "“Without prejudice to any more favourable provision in any international treaty, the Minister or his or her delegate may order an alien who is not authorised or has not been given permission to remain for more than three months or to settle in the Kingdom to leave the territory before a set date:", "...", "(2) if the alien has stayed in the Kingdom beyond the period fixed in accordance with section 6, or is unable to establish that the period has not expired;", "...", "In the same sets of circumstances, if the Minister or his or her delegate considers it necessary, they may have the alien deported.", "The alien may be detained for that purpose for the time strictly necessary for the execution of the measure provided that the period of detention shall not exceed two months.”", "Section 8", "“Any order to leave the territory or deportation order shall state which provision of section 7 is being applied.”", "Section 57/2", "“The Commissioner-General's Office for Refugees and Stateless Persons is hereby established. It shall be attached to the Ministry and shall comprise a Commissioner-General for Refugees and Stateless Persons and two deputies. The Commissioner-General and his or her deputies shall be wholly independent in taking their decisions and expressing their opinions.”", "Section 57/3", "“The Commissioner-General shall be in charge of the Commissioner-General's Office for Refugees and Stateless Persons.", "The Commissioner-General shall be appointed by the King by a decree approved by the Cabinet on a proposal by the Minister.", "The Commissioner-General shall be appointed for a period of five years. His or her term in office may be renewed.", "...”", "Section 63/2(1)", "“An appeal under the urgent-applications procedure shall lie to the Commissioner-General for Refugees and Stateless Persons against decisions of the Minister or his or her delegate pursuant to section 52 refusing aliens claiming refugee status permission to enter, remain or settle in the Kingdom.”", "Section 71", "“Aliens against whom a measure has been taken depriving them of their liberty pursuant to sections 7, 25, 27, 29, second paragraph, 51/5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63/5, third paragraph, 67 and 74/6 may appeal against that measure by lodging a notice of appeal with the committals division of the criminal court with jurisdiction for the place where they reside in the Kingdom or the place where they are found.", "...", "They may renew the appeal referred to in the preceding paragraphs at monthly intervals.", "...”", "Section 72", "“The committals division shall deliver its decision within five working days from the date an appeal is lodged after hearing the submissions of the alien or his or her counsel and the opinion of State Counsel's Office.", "... If the committals division fails to deliver its decision within the period fixed, the alien shall be released.", "The committals division shall review the legality of the detention and deportation orders but shall have no power to review their reasonableness.", "An appeal shall lie against orders of the committals division by the alien, State Counsel's Office and, in the circumstances set out in section 74, the Minister or his or her delegate.", "The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file.", "Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing.", "The registrar shall notify counsel of the decision by registered letter.”", "Section 73", "“If the committals division decides that the alien shall not remain in custody, he or she shall be released as soon as the decision has become final.", "The Minister may order the alien to reside in a designated place either until the deportation order has been executed or until his or her appeal has been decided.”", "26. In a judgment of 14 March 2001 the Court of Cassation reversed a decision of the Indictment Division of the Liege Court of Appeal ordering an alien's release. The Indictment Division had held that, contrary to Article 13 of the Convention, the authorities had deprived the alien of an effective remedy in law by interpreting the fact that appeals to the Conseil d'Etat had no suspensive effect as meaning that it was lawful for illegal immigrants to be forcibly expelled. The Court of Cassation held that, on the contrary, the issue whether an alien who had applied for refugee status had an effective remedy for the purposes of Article 13 had to be examined in the light of the procedure as a whole. After observing that appeals to the Commissioner-General for Refugees and Stateless Persons under the urgent procedure were of suspensive effect and that aliens were entitled, when lodging applications with the Conseil d'Etat for judicial review, to apply at the same time for a stay of execution under the ordinary or extremely urgent procedure, it concluded that those remedies taken as a whole satisfied the requirements of Article 13 of the Convention.", "B. The urgent procedure in the Conseil d'Etat", "27. The relevant provisions of the Royal Decree of 5 December 1991 laying down the urgent procedure in the Conseil d'Etat read as follows:", "Article 16", "“In cases certified to be extremely urgent, Article 7 and 11 to 14 shall not be applicable.", "In such cases, the president may issue a summons ordering the applicants, the respondent, any intervening party and any persons with an interest in the outcome of the case to attend a hearing (which may be held at the president's home) at the time indicated, including on bank holidays and on a few days' or a few hours' notice.", "The order shall be served on Crown Counsel or on a designated member of Crown Counsel's Office.", "The notice shall, if applicable, indicate whether the administrative file has been lodged.", "If the opposing party has not communicated the administrative file beforehand, it shall produce it to the president at the hearing and the president may suspend the hearing to allow the representative of Crown Counsel's Office, the applicants and any intervening party to inspect it.", "The president may order immediate execution of the judgment.”", "Article 25", "“Applications for provisional measures shall be made separately from applications for a stay of execution or for judicial review.", "The application shall be signed by a party, a person with an interest in the outcome of the case or a lawyer satisfying the conditions laid down by section 19, second paragraph, of the consolidated Acts.”", "Article 33", "“If an applicant for a stay of execution also seeks extremely urgent provisional measures, Article 25 shall apply to his or her application. Articles 29 to 31 shall not be applicable.", "In cases certified to be extremely urgent, the president may issue a summons ordering the parties and any persons with an interest in the outcome of the case to attend a hearing (which may be held at the president's home) at the time indicated, including on bank holidays and on a few days' or a few hours' notice.", "The order shall be served on Crown Counsel or on a designated member of Crown Counsel's Office.", "The notice shall, if applicable, indicate whether the administrative file has been lodged.", "The president may order immediate execution of the judgment.”", "28. The Conseil d'Etat 's practice direction on the “procedure to be followed by duty staff at weekends” includes the following passage concerning “the receipt of applications for stays under the extremely urgent procedure”:", "“The caretaker shall contact the duty judge, the representative of Crown Counsel's Office and the registrar so that the degree of urgency can be determined and a hearing date agreed. In cases concerning 'aliens', the registrar shall, at the judge's request, contact the Aliens Office to ascertain the scheduled repatriation date and shall seek confirmation by fax. It is advisable in all cases concerning 'aliens' for the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons to be recorded as the opposing parties. It is also prudent in cases involving imminent repatriation to order the applicant's appearance in person.”", "29. There are a number of examples in the case-law of the Conseil d'Etat of cases in which it ordered a stay of execution of a deportation order on the same day as the application for a stay under the extremely urgent procedure or on the following day, or, in any event, before the time-limit for leaving the territory expired. These are to be found in the following judgments: nos. 40.383 of 20 September 1992, 51.302 of 25 January 1995, 57.807 of 24 January 1996, 75.646 of 2 September 1998, 81.912 of 26 July 1999, 84.741 of 18 January 2000 and 85.025 of 1 February 2000.", "The Conseil d'Etat has also ruled that it may entertain applications for judicial review of deportation orders (see, for instance, the following judgments: nos. 56.599 of 4 December 1995, 57.646 of 19 January 1996, 80.505 of 28 May 1999 and 85.828 of 3 March 2000 ).", "C. Other sources", "30. In August 1999 there was a sharp increase in the number of asylum-seekers from Slovakia. While the average for the first seven months of 1999 had been 22 applications monthly, including 51 applications in July alone, no less than 359 applications were made between 1 and 24 August 1999. On that latter date, the Director-General of the Aliens Office wrote to the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons to inform them of his intention to deal with asylum applications from Slovakian nationals rapidly in order to send a clear signal to discourage other potential applicants.", "31. A “Note providing general guidance on overall policy in immigration matters” approved by the Cabinet on 1 October 1999, contained, inter alia, the following passage:", "“A plan for collective repatriation is currently under review, both to send a signal to the Slovakian authorities and to deport this large number of illegal immigrants whose presence can no longer be tolerated.”", "32. The report on Slovakia of 15 June 1998 of the European Commission against Racism and Intolerance contains the following passage:", "“In Slovakia as in several other countries of central and eastern Europe, Roma/Gypsies belong to the most disadvantaged sections of society. Apart from a few isolated cases, they live outside the public arena, cut off from decision-making centres and the main currents of political opinion. They are often the victims of skinheads' violence and are regularly subjected to ill-treatment and discrimination by the authorities.”", "33. A further report produced by the applicants and drawn up after a joint mission to Slovakia in February 1999 of the Aliens Office and the Commissioner-General's Office for Refugees and Stateless Persons appears to confirm the existence of serious discrimination against Roma, who are treated as a lower class.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "34. The applicants alleged that their arrest at Ghent police station on 1 October 1999 entailed a violation of Article 5 § 1 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "35. The Court observes that, in its decision on the admissibility of the application, it joined to the merits the Government's preliminary objection that the applicants had failed to exhaust domestic remedies, as they had not appealed to the committals division of the criminal court under section 71 of the Aliens Act.", "36. As regards the merits, the applicants denied that their arrest had been necessary to secure their departure from Belgium. They complained above all of the manner of their arrest, saying that they had been lured into a trap as they had been induced into believing that their attendance at the police station was necessary to complete their asylum applications when, from the outset, the sole intention of the authorities had been to deprive them of their liberty. They had therefore been deceived about the purpose of their attendance at the police station and, accordingly, there had been an abuse of power that amounted to a violation of Article 5 § 1.", "Consequently, no blame could attach to the applicants for their refusal to place any further trust in the authorities and their decision not to lodge an appeal with the Belgian courts. In the event, any such appeal would have been futile in the circumstances. The applicants had been trapped by the authorities, assembled as part of a collective-repatriation operation and placed in closed centres where they were told that no appeal was available to them; accordingly, they would not have been able to contact their lawyer, Mr van Overloop, directly.", "Mr van Overloop had not learnt of his clients' detention until Friday 1 October 1999, when he was informed by the President of the Roma Rights League. At no stage between the applicants' arrest and the execution of the deportation order had any direct contact between them and their lawyer been possible, in particular as they were not permitted to receive any telephone communications from outside. Admittedly, they could have telephoned out, but they were convinced that it was impossible to appeal against their detention.", "Consequently, Mr van Overloop would not have been able to lodge an application with the committals division in Ghent until Monday 4 October. Since the division sat on Mondays, Wednesdays and Fridays only, the case could not have been heard until Wednesday 6 October and the aircraft carrying the applicants left Belgium on Tuesday 5 October.", "37. The Government pointed out that the applicants had been served on 3 March and 18 June 1999 with orders to leave the territory, which expressly stated that they were liable to detention with a view to deportation if they failed to comply. The applicants would therefore have been well aware that they were overstaying. Furthermore, Mrs Čonková had been convicted of theft by the Ghent Criminal Court. In those circumstances, it was absurd to suggest that the applicants had been acting in good faith. On the contrary, the “clean hands” doctrine or the nemo auditur adage had to be applied in their case.", "In addition, the fact that the tenor of the notice was potentially ambiguous could not suffice to give rise to an inference that there had been an abuse of power. That was a serious accusation that could only be made out if the authority had acted solely for unlawful reasons, which was manifestly not the case. Besides, the Minister of the Interior had publicly expressed regret for the “unfortunate wording” of the notice. However, the fact that other aliens who had attended the police station after receiving the notice were released after their cases had been considered demonstrated that the notices had not been sent with the sole aim of carrying out arrests. Even if they had been, the method used was nonetheless preferable to going to aliens' homes or to their children's schools to arrest them. Therefore, any ruse there had been had been a “little ruse”.", "The Government saw no grounds on which the applicants could have been exempted from the requirement to lodge an appeal with the committals division of the criminal court. In their view, if the applicants were capable of applying to the European Court of Human Rights, they must have been equally capable in the same circumstances of appealing to the committals division.", "38. The Court notes that it is common ground that the applicants were arrested so that they could be deported from Belgium. Article 5 § 1 (f) of the Convention is thus applicable in the instant case. Admittedly, the applicants contest the necessity of their arrest for that purpose; however, Article 5 § 1 (f) does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing. In this respect, Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that “action is being taken with a view to deportation” (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1862, § 112).", "39. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among other authorities, Bozano v. France, judgment of 18 December 1986, Series A no. 111, p. 23, § 54, and Chahal, cited above, p. 1864, § 118).", "40. In the present case, the applicants received a written notice at the end of September 1999 inviting them to attend Ghent police station on 1 October to “enable the file concerning their application for asylum to be completed”. On their arrival at the police station they were served with an order to leave the territory dated 29 September 1999 and a decision for their removal to Slovakia and for their arrest for that purpose. A few hours later they were taken to a closed transit centre at Steenokkerzeel.", "41. The Court notes that, according to the Government, while the wording of the notice was admittedly unfortunate, as had indeed been publicly recognised by the Minister of the Interior (see paragraph 23 above), that did not suffice to vitiate the entire arrest procedure, or to warrant its being qualified as an abuse of power.", "While the Court has reservations about the compatibility of such practices with Belgian law, particularly as the practice in the instant case was not reviewed by a competent national court, the Convention requires that any measure depriving an individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see paragraph 39 above). Although the Court by no means excludes its being legitimate for the police to use stratagems in order, for instance, to counter criminal activities more effectively, acts whereby the authorities seek to gain the trust of asylum-seekers with a view to arresting and subsequently deporting them may be found to contravene the general principles stated or implicit in the Convention.", "In that regard, there is every reason to consider that while the wording of the notice was “unfortunate”, it was not the result of inadvertence; on the contrary, it was chosen deliberately in order to secure the compliance of the largest possible number of recipients. At the hearing, counsel for the Government referred in that connection to a “little ruse”, which the authorities had knowingly used to ensure that the “collective repatriation” (see paragraph 23 above) they had decided to arrange was successful.", "42. The Court reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision (see, mutatis mutandis, K.-F. v. Germany, judgment of 27 November 1997, Reports 1997-VII, p. 2975, § 70). In the Court's view, that requirement must also be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients are lawfully present in the country or not. It follows that, even as regards overstayers, a conscious decision by the authorities to facilitate or improve the effectiveness of a planned operation for the expulsion of aliens by misleading them about the purpose of a notice so as to make it easier to deprive them of their liberty is not compatible with Article 5.", "43. That factor has a bearing on the issue to which the Court must now turn, namely the Government's preliminary objection, which it has decided to join to the merits. In that connection, the Court reiterates that by virtue of Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).", "44. In the instant case, the Court identifies a number of factors which undoubtedly affected the accessibility of the remedy which the Government claim was not exercised. These include the fact that the information on the available remedies handed to the applicants on their arrival at the police station was printed in tiny characters and in a language they did not understand; only one interpreter was available to assist the large number of Roma families who attended the police station in understanding the verbal and written communications addressed to them and, although he was present at the police station, he did not stay with them at the closed centre. In those circumstances, the applicants undoubtedly had little prospect of being able to contact a lawyer from the police station with the help of the interpreter and, although they could have contacted a lawyer by telephone from the closed transit centre, they would no longer have been able to call upon the interpreter's services; despite those difficulties, the authorities did not offer any form of legal assistance at either the police station or the centre.", "45. Whatever the position – and this factor is decisive in the eyes of the Court – as the applicants' lawyer explained at the hearing without the Government contesting the point, he was only informed of the events in issue and of his clients' situation at 10.30 p.m. on Friday 1 October 1999, such that any appeal to the committals division would have been pointless because, had he lodged an appeal with the division on 4 October, the case could not have been heard until 6 October, a day after the applicants' expulsion on 5 October. Thus, although he still regarded himself as acting for the applicants (see paragraph 21 above), he was unable to lodge an appeal with the committals division.", "46. The Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, mutatis mutandis, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I). As regards the accessibility of a remedy within the meaning of Article 35 § 1 of the Convention, this implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy. That did not happen in the present case and the preliminary objection must therefore be dismissed.", "Consequently, there has been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION", "47. The applicants alleged a violation of Article 5 § 2 of the Convention, which provides:", "“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”", "They said that they had been given insufficient information about the reasons for their arrest, and had thus been prevented from exercising the remedy to which they were entitled by virtue of Article 5 § 4 of the Convention. No representative of the Ministry of the Interior, which had issued the orders of 29 September 1999 requiring them to leave the territory, had given any official information to the persons detained at Ghent police station. They had had to make do with the information contained in the documents handed to them. That information was, however, incomplete, as it did not give sufficient details to them about the legal and factual grounds for their arrest, the arrangements for their removal or the remedies available to them.", "48. The Government maintained that the requirements of Article 5 § 2 had been followed to the letter and explained that the detention order of 29 September 1999 contained reasons and had been served on the applicants two days later at the police station. When the papers were served, a Slovak-speaking interpreter had been in attendance to provide those concerned with any explanation they might need on the content of the document.", "49. In its decision on the admissibility of the complaint under Article 5 § 2, the Court joined the Government's preliminary objection to the merits. Since that objection is the same as the one raised under Article 5 § 1, and regard being had to the conclusion set out in paragraph 46 above, it too must be dismissed.", "50. As to the merits, the Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly” (in French: “ dans le plus court délai ”), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, mutatis mutandis, Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 31, § 72).", "51. In the instant case, on their arrival at the police station, the applicants were served with the decision ordering their arrest. The document handed to them for that purpose stated that their arrest had been ordered pursuant to section 7, first paragraph, point (2), of the Aliens Act, in view of the risk that they might seek to elude deportation. A note in the documents mentioned an appeal to the committals division of the criminal court as being an available remedy against the detention order.", "52. The Court has already noted that when the applicants were arrested at the police station a Slovak-speaking interpreter was present, notably for the purposes of informing the aliens of the content of the verbal and written communications which they received, in particular, the document ordering their arrest. Even though in the present case those measures by themselves were not in practice sufficient to allow the applicants to lodge an appeal with the committals division (see paragraph 46 above), the information thus furnished to them nonetheless satisfied the requirements of Article 5 § 2 of the Convention. Consequently, there has been no violation of that provision.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "53. The applicants also complained of a violation of Article 5 § 4 of the Convention, which reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "They submitted that the only remedy available to them to challenge their detention was an appeal to the committals division of the criminal court under section 71 of the Aliens Act. However, that remedy did not satisfy the requirements of Article 5 § 4, since the committals division only carried out a very limited review of detention orders made under section 7 of the Aliens Act. That review was confined to the procedural lawfulness of the detention and the committals division did not have regard to the proportionality of the detention, that is to say to the issue whether, in the light of the special facts of each case, detention was justified. Furthermore, the circumstances of the applicants' arrest in the instant case were such that no appeal to the committals division would have been possible (see paragraph 36 above).", "54. The Government, on the other hand, considered that the remedy satisfied all the requirements of Article 5 § 4.", "55. The Court considers, firstly, that the fact that the applicants were released on 5 October 1999 in Slovakia does not render the complaint devoid of purpose, since the deprivation of liberty in issue lasted five days (cf. Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 20, § 45). It notes, however, that the Government's submissions on this point are the same as those on which they relied in support of their preliminary objection to the complaints under Article 5 §§ 1, 2 and 4 of the Convention (see paragraphs 37 and 49 above). Accordingly, the Court refers to its conclusion that the applicants were prevented from making any meaningful appeal to the committals division (see paragraph 46 above). Consequently, it is unnecessary to decide whether the scope of the jurisdiction of the committals division satisfies the requirements of Article 5 § 4.", "In conclusion, there has been a violation of Article 5 § 4 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4", "56. The applicants complained of a violation of Article 4 of Protocol No. 4, which provides:", "“Collective expulsion of aliens is prohibited.”", "In their submission, the expression “collective expulsion” must be understood as meaning any “collective implementation of expulsion measures”. The provision would become meaningless if a distinction were drawn between the prior decision and the execution of the measure, since the legislation of every member State now required a specific formal decision before expulsion, such that a distinction of that kind would mean that it would no longer be possible to challenge a collective expulsion and Article 4 of Protocol No. 4 would be deprived of all practical effect.", "The applicants considered, in particular, that the orders for their expulsion reflected the authorities' determination to deal with the situation of a group of individuals, in this instance Roma from Slovakia, collectively. They submitted that there was evidence of that in certain official documents, including letters sent on 24 August 1999 by the Director-General of the Aliens Office to the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons, in which the Director-General had announced that requests for asylum by Slovakian nationals would be dealt with rapidly in order to send a clear signal to discourage other potential applicants. The applicants also referred to a “Note providing general guidance on overall policy in immigration matters”, which was approved on 1 October 1999 by the Cabinet and containing the following passage: “A plan for collective repatriation is currently under review, both to send a signal to the Slovakian authorities and to deport this large number of illegal immigrants whose presence can no longer be tolerated” (see paragraph 31 above). Likewise, on 23 December 1999, the Minister of the Interior had declared in response to a parliamentary question: “Owing to the large concentration of asylum-seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia” (see paragraph 23 above).", "In the applicants' submission, those elements revealed a general system intended to deal with groups of individuals collectively from the moment the decision to expel them was made until its execution. In that connection, it was significant that the process had been christened “Operation Golf” by the authorities. Accordingly, irrespective of the formal appearance of the decisions that had been produced, it could not be said that there had been “a reasonable and objective examination of the particular circumstances of each of the aliens forming the group” in the instant case.", "57. In response to that complaint, the Government objected that the applicants had failed to challenge the decisions which they alleged constituted a violation, namely those taken on 29 September 1999, in the Conseil d'Etat, notably by way of an application for a stay under the extremely urgent procedure.", "The Court notes that that remedy is the same as the remedy relied on by the Government in connection with the complaint under Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4. Consequently, the objection must be joined to the merits and examined with the complaint of a violation of those provisions.", "58. As to the merits of the complaint of a violation of Article 4 of Protocol No. 4 taken alone, the Government referred to the Court's decision in Andric v. Sweden ((dec.) no. 45917/99, 23 February 1999), in which the complaint was declared inadmissible, in support of their submission that there was no collective expulsion when an alien's immigration status was individually and objectively examined in a way that allowed him to put forward his case against expulsion. Although the orders made on 29 September 1999 to leave the territory had replaced the earlier orders, both the Aliens Office and the Commissioner-General's Office for Refugees and Stateless Persons, an independent, impartial and quasi-judicial body, had afforded the applicants an opportunity to set out their cases. The decision concerning Mrs Čonková comprised three pages of detailed reasoning typed in small characters and explaining why she was at no risk of treatment contrary to Article 3 of the Convention in her country of origin. As for Mr Čonka, he had not even taken the trouble to attend his appointment with the Commissioner-General, despite receiving due notification.", "Further consideration had been given to the aliens' cases at Ghent police station, since some asylum-seekers whose applications had been refused were nevertheless allowed to walk free from the police station, notably on humanitarian grounds or for administrative reasons. The examination of some individual cases, including the Čonkas ', had even continued until the applicants were about to board the aircraft, since a social-security payment had been made for October to each head of household, calculated to the nearest Belgian franc by reference to the number of people in each family. In short, the requirements of Article 4 of Protocol No. 4 had been amply satisfied.", "59. The Court reiterates its case-law whereby collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (see Andric, cited above). That does not mean, however, that where the latter condition is satisfied the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4.", "60. In the instant case, the applications for asylum made by the applicants were rejected in decisions of 3 March 1999 that were upheld on 18 June 1999. The decisions of 3 March 1999 contained reasons and were accompanied by an order made on the same day requiring the applicants to leave the territory. They were reached after an examination of each applicant's personal circumstances on the basis of their depositions. The decisions of 18 June 1999 were also based on reasons related to the personal circumstances of the applicants and referred to the order of 3 March 1999 to leave the territory, which had been stayed by the appeals under the urgent procedure.", "61. The Court notes, however, that the detention and deportation orders in issue were made to enforce an order to leave the territory dated 29 September 1999; that order was made solely on the basis of section 7, first paragraph, point (2), of the Aliens Act, and the only reference to the personal circumstances of the applicants was to the fact that their stay in Belgium had exceeded three months. In particular, the document made no reference to their application for asylum or to the decisions of 3 March and 18 June 1999. Admittedly, those decisions had also been accompanied by an order to leave the territory, but by itself, that order did not permit the applicants' arrest. The applicants' arrest was therefore ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to their requests for asylum, but nonetheless sufficient to entail the implementation of the impugned measures. In those circumstances and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed does not enable it to eliminate all doubt that the expulsion might have been collective.", "62. That doubt is reinforced by a series of factors: firstly, prior to the applicants' deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation (see paragraphs 30 and 31 above); secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.", "63. In short, at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account.", "In conclusion, there has been a violation of Article 4 of Protocol No 4.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "64. The applicants said that they had no remedy available to complain of the alleged violations of Article 3 of the Convention and Article 4 of Protocol No. 4 that satisfied the requirements of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "65. In the applicants' submission, the procedure before the Commissioner-General for Refugees and Stateless Persons did not offer the guarantees required by Article 13. Firstly, the alien concerned had no guarantee of being heard since, although that was the practice, it did not constitute a right. Secondly, he had no access to his case file, could not consult the record of notes taken at the hearing or demand that his observations be put on record. As regards the remedies available before the Conseil d'Etat, they were not effective for the purposes of Article 13, as they had no automatic suspensive effect. In expulsion cases, in which enforcement of the contested State measure produced irreversible consequences, the effectiveness of the remedy depended on its having suspensive effect, which was thus a requirement of Article 13 of the Convention.", "66. In particular, as regards remedies in the Conseil d'Etat under the extremely urgent procedure, the applicants accepted that in practice the judgment of the Conseil d'Etat was delivered before execution of the deportation order, but they argued that the law afforded no guarantee of that and the administrative authority was perfectly entitled to execute the deportation order without waiting for the judgment. Furthermore, the success rate of such applications was as low as 1.36%. It was also to be noted in passing that the Conseil d'Etat considered that aliens ceased to have an interest in pursuing the proceedings after leaving Belgian territory and it declined jurisdiction to quash or stay orders to leave the territory if they merely constituted a means of executing another decision, unless the challenge was based on new grounds, different from those relied on to contest the decision which the order to leave the territory sought to enforce.", "67. The Government said that the effectiveness of the available remedies had to be determined as a whole, having regard to the fact that two categories of remedy existed under Belgian law and could be exercised successively and cumulatively against deportation orders made by the Aliens Office. One appeal lay to the Commissioner-General for Refugees and Stateless Persons, the other to the Conseil d'Etat.", "68. The former was an independent, impartial and quasi-judicial body, as the Court of Cassation had again recently confirmed in a judgment of 14 March 2001 (see paragraph 26 above). Appeals to the Commissioner-General had automatic suspensive effect and the procedure afforded several procedural guarantees. Thus, due reasons setting out all the relevant circumstances of the case had to be given in the Commissioner's decisions. The adversarial principle was observed in the procedure so that every decision in asylum cases had to be based on evidence and information of which the applicant for refugee status was aware, which was common knowledge or which, failing that, had been the subject of adversarial argument.", "In the instant case, Mrs Čonková had been heard at length by representatives of the Commissioner-General's Office, in the presence of an interpreter. She had not requested the assistance of a lawyer, but had been entitled to do so. Mr Čonka had not even kept his appointment.", "69. An appeal lay against the decision of the Commissioner-General to the Conseil d'Etat by way of an application for judicial review and a stay of execution under the ordinary or extremely urgent procedure. The applicants had not used the extremely urgent procedure to apply for a stay of the decisions of 18 June 1999. Nor had they used it when challenging the deportation orders of 29 September 1999, which had replaced those of 18 June 1999.", "70. The Government accepted that appeals to the Conseil d'Etat had no automatic suspensive effect and that the authorities were entitled in law not to withhold executing a deportation order solely on the ground that an appeal to that court – even under the extremely urgent procedure – had been lodged. However, appeals to the Conseil d'Etat had in the past had automatic suspensive effect and that had very rapidly led to a glut of appeals being lodged as a delaying tactic, a state of affairs that had forced the legislature to cancel the automatic suspensive effect in 1991. However, in order to protect the effectiveness of the remedy before the Conseil d'Etat, the legislature had at the same time introduced the extremely urgent procedure, thus restoring a fair balance between two fundamental values of the Convention: the proper administration of justice and the conduct of proceedings within a reasonable time on the one hand, and effective judicial protection on the other.", "71. The procedure for applying for a stay of execution under the extremely urgent procedure was effective both in practice and in law and accordingly satisfied the requirements of Article 13.", "As a matter of law, the Court's case-law on the subject did not require available remedies to have suspensive effect automatically and as of right. On the contrary, Jabari v. Turkey (no. 40035/98, § 50, ECHR 2000-VIII), for instance, showed that a mere power to issue a stay could suffice for the purposes of Article 13. The Conseil d'Etat had just such a power to issue a stay of execution under the extremely urgent procedure.", "The procedure followed in such cases was very fast and applications had to be lodged before the period given to the alien to leave the territory had expired. In appropriate cases, the application could be dealt with in a single day. The president of the division could, by virtue of Article 16, second paragraph, of the Royal Decree of 5 December 1991 laying down the urgent procedure in the Conseil d'Etat, issue a summons at any time requiring the parties to attend, even on bank holidays, and on a few hours' notice; he frequently did so in deportation cases. Furthermore, aliens were entitled by Article 33 of the Royal Decree to request the president to order provisional measures, including an injunction preventing deportation pending the outcome of the proceedings, under the extremely urgent procedure. Those procedures were available twenty-four hours a day and therefore afforded an effective remedy to check any inclination which the authorities might have to deport the alien before the Conseil d'Etat had delivered its judgment under the urgent procedure. In that connection, the Government referred to the Conseil d'Etat 's practice direction on the procedure to be followed by duty officers at weekends; the direction made it clear that, if the authorities were not prepared to defer execution of the deportation order, the hearing was to be set down and the judgment delivered before the measure was executed.", "72. The numerous judgments cited by the Government in which the Conseil d'Etat had ordered stays of execution of orders for the deportation of aliens under the extremely urgent procedure showed how effective the remedy was in practice. Thus, during the two judicial years that had preceded the events at the origin of the dispute, that is to say 1997 to 1998 and 1998 to 1999, the administrative division had stayed the execution of decisions taken against foreign nationals in 25.22% of cases under the procedure. The percentage was 10.88% in the Dutch-speaking division.", "73. In addition, the case-law contained examples of cases in which the order to leave the territory had been stayed or quashed by itself. While it was true that in the past there had been cases in which the Conseil d'Etat had held that deportation orders were merely a means of executing orders to leave the territory that had been made earlier, that case-law had since evolved and deportation orders were now regarded as administrative decisions against which an appeal lay. Added to which, while it was true that aliens who had left the national territory ceased to have any interest in obtaining a stay of execution of the deportation order, they nonetheless retained an interest in having it quashed, unless their departure had been voluntary.", "74. Lastly, the Government submitted that the effectiveness of a remedy could not be determined without having regard to the political and legal context in Belgium and, consequently, the margin of appreciation that Belgium ought to be recognised as having in the instant case. The right to an effective remedy did not guarantee a right to abuse process or to be incompetent.", "The Conseil d'Etat was currently confronted with major abuses of process which undermined its effectiveness, the caseload generated by the application of the Aliens Act already accounting by itself for more than half of the litigation before it. The vast majority of the applications were dilatory. In those circumstances, the aim of the legislature had not been to restrict access to the administrative courts, but solely to abolish a rule – the automatic suspensive effect of appeals – that was bound to have an unanticipated and disastrous effect in the Belgian context, contrary to the principle of a proper administration of justice that underpinned Article 6 of the Convention.", "75. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).", "76. However, for Article 13 to be applicable, the complaint must also be arguable (see, mutatis mutandis, Chahal, cited above, p. 1870, § 147). In the instant case, the complaints of a violation of Article 3 which the Court declared manifestly ill-founded on 13 March 2001 were not arguable. Accordingly, there has been no violation of Article 13 of the Convention taken in conjunction with Article 3.", "77. But the complaint of a violation of Article 4 of Protocol No. 4 may, in the Court's view, be regarded as arguable.", "78. The Court observes in that connection that the expulsions in issue were carried out on the basis of orders to leave the territory dated 29 September 1999 which, according to the Government, replaced those made on 3 March and 18 June 1999 and in respect of which a remedy was available in the Conseil d'Etat, in particular an application for a stay of execution under the extremely urgent procedure.", "The applicants failed to use that remedy despite the fact that their counsel was informed of the events in issue and his clients' position at 10.30 p.m. on 1 October 1999 and considered that he was still acting for them. The applicants do not deny that the Conseil d'Etat may be regarded as a “national authority” within the meaning of Article 13, but argue that the remedy was not sufficiently effective to comply with that provision, as it did not produce any automatic suspensive effect. That issue must accordingly be examined.", "79. The Court considers that the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible (see, mutatis mutandis, Jabari, cited above, § 50). Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Chahal, cited above, p. 1870, § 145).", "80. In the instant case, the Conseil d'Etat was called upon to examine the merits of the applicants' complaints in their application for judicial review. Having regard to the time which the examination of the case would take and the fact that they were under threat of expulsion, the applicants had also made an application for a stay of execution under the ordinary procedure, although the Government say that that procedure was ill-suited to the circumstances of the case. They consider that the applicants should have used the extremely urgent procedure.", "The Court is bound to observe, however, that an application for a stay of execution under the ordinary procedure is one of the remedies which, according to the document setting out the Commissioner-General's decision of 18 June 1999, was available to the applicants to challenge that decision. As, according to that decision, the applicants had only five days in which to leave the national territory, applications for a stay under the ordinary procedure do not of themselves have suspensive effect and the Conseil d'Etat has forty-five days in which to decide such applications (section 17(4) of the consolidated Acts on the Conseil d'Etat ), the mere fact that that application was mentioned as an available remedy was, to say the least, liable to confuse the applicants.", "81. An application for a stay of execution under the extremely urgent procedure is not suspensive either. The Government stressed, however, that the president of the division may at any time – even on bank holidays and on a few hours' notice, as frequently occurred in deportation cases – summon the parties to attend so that the application can be considered and, if appropriate, an order made for a stay of the deportation order before its execution. It will be noted that the authorities are not legally bound to await the Conseil d'Etat 's decision before executing a deportation order. It is for that reason that the Conseil d'Etat has, for example, issued a practice direction directing that on an application for a stay under the extremely urgent procedure the registrar shall, at the request of the judge, contact the Aliens Office to establish the date scheduled for the repatriation and to make arrangements regarding the procedure to be followed as a consequence. Two remarks need to be made about that system.", "82. Firstly, it is not possible to exclude the risk that in a system where stays of execution must be applied for and are discretionary they may be refused wrongly, in particular if it was subsequently to transpire that the court ruling on the merits has nonetheless to quash a deportation order for failure to comply with the Convention, for instance, if the applicant would be subjected to ill-treatment in the country of destination or be part of a collective expulsion. In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13.", "83. Secondly, even if the risk of error is in practice negligible – a point which the Court is unable to verify, in the absence of any reliable evidence – it should be noted that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. That is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).", "However, it appears that the authorities are not required to defer execution of the deportation order while an application under the extremely urgent procedure is pending, not even for a minimum reasonable period to enable the Conseil d'Etat to decide the application. Furthermore, the onus is in practice on the Conseil d'Etat to ascertain the authorities' intentions regarding the proposed expulsions and to act accordingly, but there does not appear to be any obligation on it to do so. Lastly, it is merely on the basis of internal directions that the registrar of the Conseil d'Etat, acting on the instructions of a judge, contacts the authorities for that purpose, and there is no indication of what the consequences might be should he omit to do so. Ultimately, the alien has no guarantee that the Conseil d'Etat and the authorities will comply in every case with that practice, that the Conseil d'Etat will deliver its decision, or even hear the case, before his expulsion, or that the authorities will allow a minimum reasonable period of grace.", "Each of those factors makes the implementation of the remedy too uncertain to enable the requirements of Article 13 to be satisfied.", "84. As to the overloading of the Conseil d'Etat 's list and the risks of abuse of process, the Court considers that, as with Article 6 of the Convention, Article 13 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet its requirements (see, mutatis mutandis, Süßmann v. Germany, judgment of 16 September 1996, Reports 1996-IV, p. 1174, § 55). In that connection, the importance of Article 13 for preserving the subsidiary nature of the Convention system must be stressed (see, mutatis mutandis, Kudła, cited above, § 152).", "85. In conclusion, the applicants did not have a remedy available that satisfied the requirements of Article 13 to air their complaint under Article 4 of Protocol No. 4. Accordingly, there has been a violation of Article 13 of the Convention and the objection to the complaint of a violation of Article 4 of Protocol No. 4 (see paragraph 57 above) must be dismissed.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "86. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "87. The applicants said that the assessment of the non-pecuniary damage which they had sustained as a result of the violations of the Convention depended on the measures that the Belgian State undertook to adopt in the future to ensure that the Court's judgment was fully enforced. Consequently, they wished to start discussions with the Belgian State regarding the consequences of the judgment.", "88. The Government expressed no opinion on that point.", "89. The Court points out that, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see Scozzari and Giunta v. Italy [GC], no. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). Consequently, the Court does not consider it appropriate to reserve the question. Ruling on an equitable basis, it assesses the non-pecuniary damage sustained by the applicants at 10,000 euros (EUR).", "B. Costs and expenses", "90. The applicants sought EUR 19,850 for costs and expenses. They have provided details of the amount, which covers their representation before the Court by their three lawyers.", "91. The Government submitted that the applicants' lawyers could not claim payment of their fees directly under Article 41 and that it was for the applicants themselves to seek reimbursement of those fees (unless they could be regarded as having insufficient means, in which case they should have made an application for legal aid, which they had not done). Subject to that reservation, the Government agreed to pay a sum that was proportionate to the seriousness of the complaints that were held to be well-founded.", "92. Having regard to the circumstances, and in particular to the fact that the applicants were deported from Belgium, the Court considers the claims made on behalf of the applicants admissible. Ruling on an equitable basis, it nonetheless finds that the amount is excessive and reduces it to EUR 9,000.", "C. Default interest", "93. According to the information available to the Court, the statutory rate of interest applicable in Belgium at the date of adoption of the present judgment is 7% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Interception and push-back of the applicants to Libya", "9. The applicants, eleven Somali nationals and thirteen Eritrean nationals, were part of a group of about two hundred individuals who left Libya aboard three vessels with the aim of reaching the Italian coast.", "10. On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa (Agrigento), that is, within the Maltese Search and Rescue Region of responsibility, they were intercepted by three ships from the Italian Revenue Police ( Guardia di finanza ) and the Coastguard.", "11. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them.", "All their personal effects, including documents confirming their identity, were confiscated by the military personnel.", "12. On arrival in the port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants’ version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships.", "13. At a press conference held on 7 May 2009, the Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded with Libya, and represented an important turning point in the fight against clandestine immigration. In a speech to the Senate on 25 May 2009, the Minister stated that between 6 and 10 May 2009 more than 471 irregular migrants had been intercepted on the high seas and transferred to Libya in accordance with those bilateral agreements. After explaining that the operations had been carried out in application of the principle of cooperation between States, the Minister stated that the push-back policy was very effective in combating illegal immigration. According to the Minister of the Interior, that policy discouraged criminal gangs involved in people smuggling and trafficking, helped save lives at sea and substantially reduced landings of irregular migrants along the Italian coast, which had decreased fivefold in May 2009 as compared with May 2008.", "14. During the course of 2009, Italy conducted nine operations on the high seas to intercept irregular migrants, in conformity with the bilateral agreements concluded with Libya.", "B. The applicants’ fate and their contacts with their representatives", "15. According to the information submitted to the Court by the applicants’ representatives, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 respectively on the list appended to this judgment), died in unknown circumstances after the events in question.", "16. After the application was lodged, the lawyers were able to maintain contact with the other applicants, who could be contacted by telephone and e-mail.", "Fourteen of the applicants (appearing on the list) were granted refugee status by the office in Tripoli of the Office of the United Nations High Commissioner for Refugees (UNHCR) between June and October 2009.", "17. Following the revolution which broke out in Libya in February 2011, forcing a large number of people to flee the country, the quality of contact between the applicants and their representatives deteriorated. The lawyers are currently in contact with six of the applicants:", "(i) Mr Ermias Berhane (no. 20 on the list) managed to land, unlawfully, on the Italian coast. On 25 May 2011 the Crotone Refugee Status Board granted him refugee status;", "(ii) Mr Habtom Tsegay (no. 19 on the list) is currently at Chucha detention camp in Tunisia. He plans to return to Italy;", "(iii) Mr Kiflom Tesfazion Kidan (no. 24 on the list) is resident in Malta;", "(iv) Mr Hayelom Mogos Kidane and Mr Waldu Habtemchael (nos. 23 and 13 on the list respectively) are resident in Switzerland, where they are awaiting a response to their request for international protection;", "(v) Mr Roberl Abzighi Yohannes (no. 21 on the list) is resident in Benin.", "IV. INTERNATIONAL MATERIAL CONCERNING INTERCEPTIONS ON THE HIGH SEAS CARRIED OUT BY ITALY AND THE SITUATION IN LIBYA", "A. Press Release of the United Nations High Commissioner for Refugees", "33. On 7 May 2009 UNHCR published the following press release:", "“UNHCR expressed deep concern Thursday over the fate of some 230 people who were rescued Wednesday by Italian patrol boats in the Maltese Search and Rescue Region (SAR) of responsibility and sent back to Libya without proper assessment of their possible protection needs. The rescue took place about 35 nautical miles south-east of the Italian island of Lampedusa, but within the Maltese SAR zone.", "The diversion to Libya followed a day of heated discussions between Maltese and Italian authorities about who was responsible for the rescue and disembarkation of the people on the three boats, which were in distress. Although closer to Lampedusa, the vessels were in the Maltese search and rescue area of responsibility.", "While no information is available on the nationalities of those aboard the vessels, it is likely that among them are people in need of international protection. In 2008, an estimated 75 percent of sea arrivals in Italy applied for asylum and 50 percent of them were granted some form of protection.", "‘I appeal to the Italian and Maltese authorities to continue to ensure that people rescued at sea and in need of international protection receive full access to territory and asylum procedures,’ UN High Commissioner for Refugees António Guterres said.", "The incident marks a significant shift in policies by the Italian government and is a source of very serious concern. UNHCR deeply regrets the lack of transparency which surrounded the event.", "‘We have been working closely with the Italian authorities in Lampedusa and elsewhere to ensure that people fleeing war and persecution are protected in line with the 1951 Geneva Convention,’ said Laurens Jolles, UNHCR’s Rome-based representative. ‘It is of fundamental importance that the international principle of non-refoulement continues to be fully respected.’", "In addition, Libya has not signed the 1951 UN Refugee Convention, and does not have a functioning national asylum system. UNHCR urges Italian authorities to reconsider their decision and to avoid repeating such measures.”", "B. Letter of 15 July 2009 from Mr Jacques Barrot, Vice-President of the European Commission", "34. On 15 July 2009 Mr Jacques Barrot wrote to the President of the European Parliament Committee on Civil Liberties, Justice and Home Affairs in response to a request for a legal opinion on the “return to Libya by sea of various groups of migrants by the Italian authorities”. In that letter, the Vice-President of the European Commission expressed himself as follows:", "“According to information available to the Commission, the migrants concerned were intercepted on the high seas.", "Two sets of Community rules must be examined concerning the situation of nationals of third countries or stateless persons attempting to enter, unlawfully, the territory of member States, some of whom might be in need of international protection.", "Firstly, the Community acquis in the field of asylum is intended to safeguard the right of asylum, as set forth in Article 18 of the Charter of Fundamental Rights of the European Union, and in accordance with the 1951 Geneva Convention relating to the Status of Refugees and with other relevant treaties. However, that acquis, including the 2005 Asylum Procedures Directive, applies only to asylum applications made on the territory of Member States, which includes the borders, transit areas and, in the context of maritime borders, territorial waters of Member States. Consequently, it is clear from a legal standpoint that the Community acquis in the field of asylum does not apply to situations on the high seas.", "Secondly, the Schengen Borders Code (SBC) requires that Member States conduct border surveillance to prevent, inter alia, unauthorised border crossings (Article 12 of EC Regulation No. 562/2006 (SBC)). However, that Community obligation must be fulfilled in compliance with the principle of non-refoulement and without prejudice to the rights of refugees and other people requesting international protection.", "The Commission is of the opinion that border surveillance activities conducted at sea, whether in territorial waters, the contiguous zone, the exclusive economic zone or on the high seas, fall within the scope of application of the SBC. In that connection, our preliminary legal analysis would suggest that the activities of the Italian border guards correspond to the notion of ‘border surveillance’ as set forth in Article 12 of the SBC, because they prevented the unauthorised crossing of an external sea border by the persons concerned and resulted in them being returned to the third country of departure. According to the case-law of the European Court of Justice, Community obligations must be applied in strict compliance with the fundamental rights forming part of the general principles of Community law. The Court has also clarified that the scope of application of those rights in the Community legal system must be determined taking account of the case-law of the European Court of Human Rights (ECHR).", "The principle of non-refoulement, as interpreted by the ECHR, essentially means that States must refrain from returning a person (directly or indirectly) to a place where he or she could face a real risk of being subjected to torture or to inhuman or degrading treatment. Furthermore, States may not send refugees back to territories where their life or freedom would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion. That obligation must be fulfilled when carrying out any border control in accordance with the SBC, including border surveillance activities on the high seas. The case-law of the ECHR provides that acts carried out on the high seas by a State vessel constitute cases of extraterritorial jurisdiction and may engage the responsibility of the State concerned.", "Having regard to the foregoing concerning the scope of Community jurisdiction, the Commission has invited the Italian authorities to provide it with additional information concerning the actual circumstances of the return of the persons concerned to Libya and the provisions put in place to ensure compliance with the principle of non-refoulement when implementing the bilateral agreement between the two countries.”", "C. Report of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading treatment or Punishment (CPT)", "35. From 27 to 31 July 2009 a delegation from the CPT visited Italy. During that visit the delegation looked into various issues arising from the new governmental policy of intercepting at sea, and returning to Libya, migrants approaching Italy’s southern maritime border. In particular, the delegation focused on the system of safeguards in place to ensure that no one was sent to a country where there were substantial grounds for believing that he or she would run a real risk of being subjected to torture or ill-treatment.", "36. In its report, made public on 28 April 2010, the CPT expressed the opinion that Italy’s policy of intercepting migrants at sea and obliging them to return to Libya or other non-European countries violated the principle of non-refoulement. The Committee emphasised that Italy was bound by the principle of non-refoulement wherever it exercised its jurisdiction, which included via its personnel and vessels engaged in border protection or rescue at sea, even when operating outside its territory. Moreover, all persons coming within Italy’s jurisdiction should be afforded an appropriate opportunity and facilities to seek international protection. The information available to the CPT indicated that no such opportunity or facilities were afforded to the migrants intercepted at sea by the Italian authorities during the period examined. On the contrary, the persons who were pushed back to Libya in the operations carried out from May to July 2009 were denied the right to obtain an individual assessment of their case and effective access to the refugee-protection system. In that connection, the CPT observed that persons surviving a sea voyage were particularly vulnerable and often not in a condition in which they should be expected to declare immediately their wish to apply for asylum.", "According to the CPT report, Libya could not be considered a safe country in terms of human rights and refugee law; the situation of persons arrested and detained in Libya, including that of migrants – who were also exposed to being deported to other countries – indicated that the persons pushed back to Libya were at risk of ill-treatment.", "D. The report by Human Rights Watch", "37. In a lengthy report published on 21 September 2009 and entitled “ Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers ”, Human Rights Watch condemned the Italian practice of intercepting boats full of migrants on the high seas and pushing them back to Libya without the required screening. That report was also based on the results of research published in a 2006 report entitled “ Libya: Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees ”.", "38. According to Human Rights Watch, Italian patrol boats towed migrant boats from international waters without determining whether some might contain refugees, sick or injured persons, pregnant women, unaccompanied children, or victims of trafficking or other forms of violence. The Italian authorities forced the boat migrants onto Libyan vessels or took the migrants directly back to Libya, where the authorities immediately detained them. Some of the operations were coordinated by Frontex.", "The report was based on interviews with ninety-one migrants, asylum-seekers, and refugees in Italy and Malta, conducted mostly in May 2009, and one telephone interview with a migrant detainee in Libya. Representatives of Human Rights Watch visited Libya in April and met with government officials, but the Libyan authorities would not permit the organisation to interview migrants privately. Moreover, the authorities did not allow Human Rights Watch to visit any of the many migrant detention centres in Libya, despite repeated requests.", "UNHCR now has access to Misrata Prison, at which clandestine migrants are generally held, and Libyan organisations provide humanitarian services there. However, there is no formal agreement, and thus no guaranteed access. Furthermore, Libya has no asylum law. The authorities make no distinction between refugees, asylum-seekers and other clandestine migrants.", "39. Human Rights Watch urged the Libyan government to improve the deplorable conditions of detention in Libya and to establish asylum procedures that conformed to international refugee standards. It also called on the Italian government, the European Union and Frontex to ensure access to asylum, including for those intercepted on the high seas, and to refrain from returning non-Libyans to Libya until the latter’s treatment of migrants, asylum-seekers and refugees fully met international standards.", "E. Amnesty International’s visit", "40. A team from Amnesty International carried out a fact-finding visit to Libya from 15 to 23 May 2009, the first such visit to the country by the organisation that the Libyan authorities had permitted since 2004.", "During that visit, Amnesty International visited Misrata Detention Centre, some 200 km from Tripoli, in which several hundred irregular migrants from other African countries were held in severely overcrowded conditions, and briefly interviewed several of those held there. Many had been detained since they were intercepted while seeking to make their way to Italy or other countries in southern Europe which look to Libya and other north African countries to staunch the flow of irregular migrants from sub-Saharan Africa to Europe.", "41. Amnesty International considered it possible that detainees at Misrata might include refugees fleeing persecution and stressed that, as Libya had no asylum procedure and was not a party to the Refugee Convention or its 1967 Protocol, foreigners, including those in need of international protection, might find themselves outside the protection of the law. There was also virtually no opportunity for detainees to lodge complaints of torture and other ill-treatment with the competent judicial authorities.", "In its meetings with Libyan government officials, Amnesty International expressed concern about the detention and alleged ill-treatment of hundreds, possibly thousands, of foreign nationals whom the authorities assumed to be irregular migrants and urged them to put in place proper procedures to identify asylum-seekers and refugees and afford them appropriate protection. Amnesty International also urged the Libyan authorities to cease forcible returns of foreign nationals to countries in which they were at risk of serious human rights violations and to find a better alternative to detention for those foreigners whom they were not able to return to their countries of origin for this reason. Some of the Eritrean nationals who comprised a sizeable proportion of the foreign nationals detained at Misrata told Amnesty International that they had been held there for two years.", "V. OTHER INTERNATIONAL MATERIAL DESCRIBING THE SITUATION IN LIBYA", "42. In addition to those cited above, numerous reports have been published by national and international organisations and by non-governmental organisations, condemning the conditions of detention and the living conditions of irregular migrants in Libya.", "The principal reports are:", "(i) Human Rights Watch, “Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees”, 13 September 2006;", "(ii) United Nations Human Rights Committee, “Concluding Observations. Libyan Arab Jamahiriya”, 15 November 2007;", "(iii) Amnesty International, “Libya – Amnesty International Report 2008”, 28 May 2008;", "(iv) Human Rights Watch, “Libya: Rights at Risk”, 2 September 2008;", "(v) US Department of State, “2010 Human Rights Report: Libya”, 8 April 2010.", "VI. INTERNATIONAL MATERIAL DESCRIBING THE SITUATION IN SOMALIA AND ERITREA", "43. The main international documents concerning the situation in Somalia were submitted in Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, §§ 80-195, 28 June 2011).", "44. Various reports condemn human rights violations perpetrated in Eritrea. They detail serious human rights violations by the Eritrean government, namely arbitrary arrests, torture, inhuman conditions of detention, forced labour and serious restrictions on the freedom of movement, expression and religion. Those documents also analyse the difficult situation of Eritreans who manage to escape to other countries such as Libya, Sudan, Egypt and Italy and are subsequently forcibly repatriated.", "The principal reports are:", "(i) UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea”, April 2009;", "(ii) Amnesty International, “Eritrea – Amnesty International Report 2009”, 28 May 2009;", "(iii) Human Rights Watch, “Service for Life – State Repression and Indefinite Conscription in Eritrea”, April 2009;", "(iv) Human Rights Watch, “Libya: Don’t Send Eritreans Back to Risk of Torture”, 15 January 2010;", "(v) Human Rights Watch, “World Report 2010: Eritrea”, January 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Italian Navigation Code", "18. Article 4 of the Navigation Code of 30 March 1942, as amended in 2002, provides as follows:", "“Italian vessels on the high seas and aircraft in airspace not subject to the sovereignty of a State are considered to be Italian territory.”", "B. Bilateral agreements between Italy and Libya", "19. On 29 December 2007 Italy and Libya signed a bilateral cooperation agreement in Tripoli to combat clandestine immigration. On the same date the two countries signed an Additional Protocol setting out the operational and technical arrangements for implementing the said Agreement. Under Article 2 of the Agreement:", "“Italy and the ‘Great Socialist People’s Libyan Arab Jamahiriya’ undertake to organise maritime patrols using six ships made available on a temporary basis by Italy. Mixed crews shall be present on ships, made up of Libyan personnel and Italian police officers, who shall provide training, guidance and technical assistance on the use and handling of the ships. Surveillance, search and rescue operations shall be conducted in the departure and transit areas of vessels used to transport clandestine immigrants, both in Libyan territorial waters and in international waters, in compliance with the international conventions in force and in accordance with the operational arrangements to be decided by the two countries.” (non-official translation)", "Furthermore, Italy undertook to cede to Libya, for a period of three years, three unmarked ships (Article 3 of the Agreement) and to encourage the bodies of the European Union to conclude a framework agreement between the European Union and Libya (Article 4 of the Agreement).", "Finally, under Article 7, Libya undertook to “coordinate its actions with those of the countries of origin in order to reduce clandestine immigration and ensure the repatriation of immigrants”.", "On 4 February 2009 Italy and Libya signed an Additional Protocol in Tripoli, intended to strengthen bilateral cooperation in the fight against clandestine immigration. That Protocol partially amended the Agreement of 29 December 2007, in particular through the inclusion of a new Article, which stated:", "“The two countries undertake to organise maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.", "Ownership of the ships offered by Italy, within the meaning of Article 3 of the Agreement of 29 December 2007, shall be definitively ceded to Libya.", "The two countries undertake to repatriate clandestine immigrants and to conclude agreements with the countries of origin in order to limit clandestine immigration.” (non-official translation)", "20. On 30 August 2008 in Benghazi, Italy and Libya signed the Treaty on Friendship, Partnership and Cooperation, Article 19 of which makes provision for efforts to prevent clandestine immigration in the countries of origin of migratory flows. Under Article 6 of that Treaty, Italy and Libya undertook to act in accordance with the principles of the United Nations Charter and the Universal Declaration of Human Rights.", "21. According to a statement by the Italian Minister of Defence, the agreements between Italy and Libya were suspended following the events of 2011.", "III. RELEVANT ASPECTS OF INTERNATIONAL AND EUROPEAN LAW", "A. 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”)", "22. Italy has ratified the Geneva Convention, which defines the situations in which a State must grant refugee status to persons who apply for it, and the rights and responsibilities of those persons. Articles 1 and 33 § 1 of the Geneva Convention provide:", "Article 1", "“... For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”", "Article 33 § 1", "“No Contracting State shall expel or return (‘ refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”", "23. In its Note on International Protection of 13 September 2001 (A/AC.96/951, § 16), UNHCR, which has the task of monitoring the manner in which the States Parties apply the Geneva Convention, indicated that the principle of non-refoulement laid down in Article 33, was:", "“... a cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”", "B. 1982 United Nations Convention on the Law of the Sea (“the Montego Bay Convention”)", "24. The relevant Articles of the Montego Bay Convention provide:", "Article 92 Status of ships", "“1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in ... this Convention, shall be subject to its exclusive jurisdiction on the high seas ...”", "Article 94 Duties of the flag State", "“1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”", "Article 98 Duty to render assistance", "“1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:", "(a) to render assistance to any person found at sea in danger of being lost;", "(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;", "...”", "C. 1979 International Convention on Maritime Search and Rescue (“the SAR Convention”) (amended in 2004)", "25. Sub-paragraph 3.1.9 of the Annex to the SAR Convention provides:", "“Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ [ sic ] intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization [International Maritime Organization]. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.”", "D. Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime (“the Palermo Protocol”) (2000)", "26. Article 19 § 1 of the Palermo Protocol provides:", "“Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.”", "E. Resolution 1821 (2011) of the Parliamentary Assembly of the Council of Europe", "27. On 21 June 2011 the Parliamentary Assembly of the Council of Europe adopted the Resolution on the interception and rescue at sea of asylum-seekers, refugees and irregular migrants, which provides as follows:", "“1. The surveillance of Europe’s southern borders has become a regional priority. The European continent is having to cope with the relatively large-scale arrival of migratory flows by sea from Africa, reaching Europe mainly through Italy, Malta, Spain, Greece and Cyprus.", "2. Migrants, refugees, asylum-seekers and others risk their lives to reach Europe’s southern borders, mostly in unseaworthy vessels. These journeys, always undertaken illicitly, mostly on board flagless vessels, putting them at risk of falling into the hands of migrant smuggling and trafficking rings, reflect the desperation of the passengers, who have no legal means and, above all, no safer means of reaching Europe.", "3. Although the number of arrivals by sea has fallen drastically in recent years, resulting in a shift of migratory routes (particularly towards the land border between Turkey and Greece), the Parliamentary Assembly, recalling, inter alia, its Resolution 1637 (2008) on Europe’s boat people: mixed migration flows by sea into southern Europe, once again expresses its deep concern over the measures taken to deal with the arrival by sea of these mixed migratory flows. Many people in distress at sea have been rescued and many attempting to reach Europe have been pushed back, but the list of fatal incidents – as predictable as they are tragic – is a long one and it is currently getting longer on an almost daily basis.", "4. Furthermore, recent arrivals in Italy and Malta following the turmoil in North Africa confirm that Europe must always be ready to face the possible large-scale arrival of irregular migrants, asylum-seekers and refugees on its southern shores.", "5. The Assembly notes that measures to manage these maritime arrivals raise numerous problems, of which five are particularly worrying:", "5.1. despite several relevant international instruments which are applicable in this area and which satisfactorily set out the rights and obligations of States and individuals applicable in this area, interpretations of their content appear to differ. Some States do not agree on the nature and extent of their responsibilities in specific situations and some States also call into question the application of the principle of non-refoulement on the high seas;", "5.2. while the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a ‘place of safety’, the notion of ‘place of safety’ does not appear to be interpreted in the same way by all member States. Yet it is clear that the notion of ‘place of safety’ should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights;", "5.3. divergences of this kind directly endanger the lives of the people to be rescued, in particular by delaying or preventing rescue measures, and they are likely to dissuade seafarers from rescuing people in distress at sea. Furthermore, they could result in a violation of the principle of non-refoulement in respect of a number of persons, including some in need of international protection;", "5.4. although the European Agency for the Management of Operational Cooperation at the External Borders of the member States of the European Union (Frontex) plays an ever increasing role in interception at sea, there are inadequate guarantees of respect for human rights and obligations arising under international and European Union law, in the context of the joint operations it coordinates;", "5.5. finally, these sea arrivals place a disproportionate burden on the States located on the southern borders of the European Union. The goal of responsibilities being shared more fairly and greater solidarity in the migration sphere between European States is far from being attained.", "6. The situation is rendered more complex by the fact that these migratory flows are of a mixed nature and therefore call for specialised and tailored protection-sensitive responses in keeping with the status of those rescued. To respond to sea arrivals adequately and in line with the relevant international standards, the States must take account of this aspect in their migration management policies and activities.", "7. The Assembly reminds member States of their obligations under international law, including the European Convention on Human Rights (ETS No. 5), the United Nations Convention on the Law of the Sea of 1982 and the 1951 Geneva Convention relating to the Status of Refugees, and particularly reminds them of the principle of non-refoulement and the right to seek asylum. The Assembly also reiterates the obligations of the States Parties to the 1974 International Convention for the Safety of Life at Sea and the 1979 International Convention on Maritime Search and Rescue.", "8. Finally and above all, the Assembly reminds member States that they have both a moral and legal obligation to save persons in distress at sea without the slightest delay, and unequivocally reiterates the interpretation given by the Office of the United Nations High Commissioner for Refugees (UNHCR), which states that the principle of non-refoulement is equally applicable on the high seas. The high seas are not an area where States are exempt from their legal obligations, including those emerging from international human rights law and international refugee law.", "9. Accordingly, the Assembly calls on member States, when conducting maritime border surveillance operations, whether in the context of preventing smuggling and trafficking in human beings or in connection with border management, be it in the exercise of de jure or de facto jurisdiction, to:", "9.1. fulfil without exception and without delay their obligation to save people in distress at sea;", "9.2. ensure that their border management policies and activities, including interception measures, recognise the mixed make-up of flows of individuals attempting to cross maritime borders;", "9.3. guarantee for all intercepted persons humane treatment and systematic respect for their human rights, including the principle of non-refoulement, regardless of whether interception measures are implemented within their own territorial waters, those of another State on the basis of an ad hoc bilateral agreement, or on the high seas;", "9.4. refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgments of the European Court of Human Rights;", "9.5. carry out as a priority action the swift disembarkation of rescued persons to a ‘place of safety’ and interpret a ‘place of safety’ as meaning a place which can meet the immediate needs of those disembarked and in no way jeopardises their fundamental rights, since the notion of ‘safety’ extends beyond mere protection from physical danger and must also take into account the fundamental rights dimension of the proposed place of disembarkation;", "9.6. guarantee access to a fair and effective asylum procedure for those intercepted who are in need of international protection;", "9.7. guarantee access to protection and assistance, including to asylum procedures, for those intercepted who are victims of human trafficking or at risk of being trafficked;", "9.8. ensure that the placement in a detention facility of those intercepted – always excluding minors and vulnerable categories – regardless of their status, is authorised by the judicial authorities and occurs only where necessary and on grounds prescribed by law, that there is no other suitable alternative and that such placement conforms to the minimum standards and principles set forth in Assembly Resolution 1707 (2010) on the detention of asylum-seekers and irregular migrants in Europe;", "9.9. suspend any bilateral agreements they may have concluded with third States if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement, and conclude new bilateral agreements specifically containing such human rights guarantees and measures for their regular and effective monitoring;", "9.10. sign and ratify, if they have not already done so, the aforementioned relevant international instruments and take account of the International Maritime Organization (IMO) Guidelines on the Treatment of Persons Rescued at Sea;", "9.11. sign and ratify, if they have not already done so, the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the so-called ‘Palermo Protocols’ to the United Nations Convention against Transnational Organised Crime (2000);", "9.12. ensure that maritime border surveillance operations and border control measures do not affect the specific protection afforded under international law to vulnerable categories such as refugees, stateless persons, women and unaccompanied children, migrants, victims of trafficking or at risk of being trafficked, or victims of torture and trauma.", "10. The Assembly is concerned about the lack of clarity regarding the respective responsibilities of European Union States and Frontex and the absence of adequate guarantees for the respect of fundamental rights and international standards in the framework of joint operations coordinated by that agency. While the Assembly welcomes the proposals presented by the European Commission to amend the rules governing that agency, with a view to strengthening guarantees of full respect for fundamental rights, it considers them inadequate and would like the European Parliament to be entrusted with the democratic supervision of the agency’s activities, particularly where respect for fundamental rights is concerned.", "11. The Assembly also considers it essential that efforts be made to remedy the prime causes prompting desperate individuals to risk their lives by boarding boats bound for Europe. The Assembly calls on all member States to step up their efforts to promote peace, the rule of law and prosperity in the countries of origin of potential immigrants and asylum-seekers.", "12. Finally, in view of the serious challenges posed to coastal States by the irregular arrival by sea of mixed flows of individuals, the Assembly calls on the international community, particularly the IMO, the UNHCR, the International Organization for Migration (IOM), the Council of Europe and the European Union (including Frontex and the European Asylum Support Office) to:", "12.1. provide any assistance required to those States in a spirit of solidarity and sharing of responsibilities;", "12.2. under the auspices of the IMO, make concerted efforts to ensure a consistent and harmonised approach to international maritime law through, inter alia, agreement on the definition and content of the key terms and norms;", "12.3. establish an inter-agency group with the aim of studying and resolving the main problems in the area of maritime interception, including the five problems identified in the present resolution, setting clear policy priorities, providing guidance to States and other relevant actors, and monitoring and evaluating the use of maritime interception measures. The group should be made up of members of the IMO, the UNHCR, the IOM, the Council of Europe, Frontex and the European Asylum Support Office.”", "F. European Union law", "1. Charter of Fundamental Rights of the European Union (2000)", "28. Article 19 of the Charter provides:", "Protection in the event of removal, expulsion or extradition", "“1. Collective expulsions are prohibited.", "2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”", "2. 1985 Schengen Agreement", "29. Article 17 of the Agreement provides:", "“In regard to the movement of persons, the Parties shall endeavour to abolish the controls at the common frontiers and transfer them to their external frontiers. To that end, they shall endeavour to harmonise in advance, where necessary, the laws and administrative provisions concerning the prohibitions and restrictions which form the basis for the controls and to take complementary measures to safeguard security and combat illegal immigration by nationals of States that are not members of the European Communities.”", "3. Council Regulation (EC) no. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)", "30. Regulation (EC) No. 2007/2004 contains the following provisions:", "“(1) Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the European Union and a fundamental component of an area of freedom, security and justice. To this end, the establishment of common rules on standards and procedures for the control of external borders is foreseen.", "(2) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member States.", "(3) Taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management should therefore be established in the shape of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as the Agency).", "(4) The responsibility for the control and surveillance of external borders lies with the Member States. The Agency should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member States’ actions in the implementation of those measures.", "(5) Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position. Accordingly, there is a need for promoting solidarity between Member States in the field of external border management. The establishment of the Agency, assisting Member States with implementing the operational aspects of external border management, including return of third-country nationals illegally present in the Member States, constitutes an important step in this direction.”", "4. Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)", "31. Article 3 of Regulation (EC) No. 562/2006 provides:", "“This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:", "(a) the rights of persons enjoying the Community right of free movement;", "(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement .”", "5. Council Decision of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (2010/252/EU)", "32. The Annex to the Council Decision of 26 April 2010 states:", "“Rules for sea border operations coordinated by the Agency [Frontex]", "1. General principles", "1.1. Measures taken for the purpose of the surveillance operation shall be conducted in accordance with fundamental rights and in a way that does not put at risk the safety of the persons intercepted or rescued as well as of the participating units.", "1.2. No person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. Without prejudice to paragraph 1.1, the persons intercepted or rescued shall be informed in an appropriate way so that they can express any reasons for believing that disembarkation in the proposed place would be in breach of the principle of non-refoulement.", "1.3. The special needs of children, victims of trafficking, persons in need of urgent medical assistance, persons in need of international protection and other persons in a particularly vulnerable situation shall be considered throughout all the operation.", "1.4. Member States shall ensure that border guards participating in the surveillance operation are trained with regard to relevant provisions of human rights and refugee law, and are familiar with the international regime on search and rescue.”", "THE LAW", "I. PRELIMINARY ISSUES RAISED BY THE GOVERNMENT", "A. Validity of the powers of attorney and further consideration of the application", "1. Issues raised by the Government", "45. The Government challenged the validity in various respects of the powers of attorney provided by the applicants’ representatives. Firstly, they alleged that the majority of the powers of attorney contained formal defects, namely:", "(i) no particulars regarding date and place and, in some cases, the fact that the date and the place appeared to have been written by the same person;", "(ii) no reference to the application number;", "(iii) the fact that the applicants’ identities were indicated solely by family name, first name, nationality, an illegible signature and a fingerprint, which was often partial or difficult to make out;", "(iv) no details of the applicants’ dates of birth.", "46. The Government then submitted that the application contained no information as to the circumstances in which the powers of attorney had been drafted, thus casting doubt on their validity, nor any information concerning steps taken by the applicants’ representatives to establish the identity of their clients. The Government also challenged the quality of existing contact between the applicants and their representatives. They alleged, in particular, that electronic messages sent by the applicants after their transfer to Libya did not bear signatures that could be compared against those appearing on the powers of attorney. In the Government’s view, the problems encountered by the lawyers in establishing and maintaining contact with the applicants precluded an adversarial examination of the case.", "47. That being the case, because it was impossible to identify the applicants and because the applicants were not “participating in the case in person”, the Court should cease its examination of the case. Referring to the case of Hussun and Others v. Italy ((striking out), nos. 10171/05, 10601/05, 11593/05 and 17165/05, 19 January 2010), the Government requested that the Court strike the case out of the list.", "2. The applicants’ submissions", "48. The applicants’ representatives argued that the powers of attorney were valid. They asserted, firstly, that the formal defects alleged by the Government were not such as to render null and void the authority granted to them by their clients.", "49. As regards the circumstances in which the powers of attorney had been drafted, they argued that the authorities had been drawn up by the applicants upon their arrival in Libya, with the assistance of members of humanitarian organisations operating in the various detention centres. The latter subsequently took care of contacting the applicants’ representatives and forwarding the powers of attorney to them for them to sign and accept the authority granted.", "50. They argued that the problems relating to identification of the parties concerned were the direct result of the subject matter of the application, namely a collective push-back operation in which no steps had been taken beforehand to identify the clandestine migrants. Whatever the circumstances, the lawyers drew the Court’s attention to the fact that a significant number of the applicants had been identified by the UNHCR office in Tripoli following their arrival in Libya.", "51. Lastly, the lawyers stated that they had remained in contact with some of the applicants, who could be contacted by telephone and by e-mail. They pointed out the serious difficulties they faced in maintaining contact with the applicants, in particular because of the violence which had been rife in Libya since February 2011.", "3. The Court’s assessment", "52. The Court reiterates at the outset that the representative of the applicant must produce “a power of attorney or written authority to act” (Rule 45 § 3 of the Rules of Court). Therefore, a simple written authority would be valid for the purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant’s understanding and consent (see Velikova v. Bulgaria, no. 41488/98, § 50, ECHR 2000-VI).", "53. Furthermore, neither the Convention nor the Rules of Court impose any specific requirements on the manner in which the authority form must be drafted or require any form of certification of that document by any national authority. What is important for the Court is that the form of authority should clearly indicate that the applicant has entrusted his or her representation before the Court to a representative and that the representative has accepted that commission (see Ryabov v. Russia, no. 3896/04, §§ 40 and 43, 31 January 2008).", "54. In the instant case, the Court observes that all the powers of attorney included in the case file are signed and bear fingerprints. Moreover, the applicants’ lawyers have provided detailed information throughout the proceedings concerning the facts and the fate of the applicants with whom they have been able to maintain contact. There is nothing in the case file that could call into question the lawyers’ account or the exchange of information with the Court (see, conversely, Hussun and Others, cited above, §§ 43 ‑ 50).", "55. In the circumstances, the Court has no reason to doubt the validity of the powers of attorney. Consequently, it rejects the Government’s objection.", "56. Furthermore, the Court notes that, according to the information provided by the lawyers, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 on the list respectively), died shortly after the application was lodged (see paragraph 15 above).", "57. It points out that the practice of the Court is to strike applications out of the list when an applicant dies during the course of the proceedings and no heir or close relative wishes to pursue the case (see, among other authorities, Scherer v. Switzerland, 25 March 1994, §§ 31-32, Series A no. 287; Öhlinger v. Austria, no. 21444/93, Commission’s report of 14 January 1997, § 15, unreported; Thévenon v. France (dec.), no. 2476/02, ECHR 2006-III; and Léger v. France (striking out) [GC], no. 19324/02, § 44, 30 March 2009).", "58. In the light of the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application as regards the deceased (Article 31 § 1 (c) of the Convention). Furthermore, it points out that the complaints initially lodged by Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman are identical to those submitted by the other applicants, on which it will express its opinion below. In those circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols which, in accordance with Article 37 § 1 in fine, would require continuation of the examination of the deceased applicants’ application.", "59. In conclusion, the Court decides to strike the case out of the list in so far as it concerns Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman, and to pursue the examination of the remainder of the application.", "B. Exhaustion of domestic remedies", "60. At the hearing before the Grand Chamber, the Government submitted that the application was inadmissible because domestic remedies had not been exhausted. They claimed that the applicants had failed to apply to the Italian courts to seek acknowledgment of and compensation for the alleged violations of the Convention.", "61. In the Government’s view, the applicants, now free to move around and in a position to contact their lawyers in the context of the proceedings before the Court, should have lodged proceedings with the Italian criminal courts to complain of violations of domestic and international law by the military personnel involved in their removal. Criminal proceedings were currently under way in similar cases and that type of remedy was “effective”.", "62. The Court notes that the applicants also complained that they were not afforded a remedy satisfying the requirements of Article 13 of the Convention. It considers that there is a close connection between the Government’s argument on this point and the merits of the complaints made by the applicants under Article 13 of the Convention. It therefore takes the view that it is necessary to join this objection to the merits of the complaints lodged under Article 13 of the Convention and to examine the application in this context (see paragraph 207 below).", "II. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION", "63. Article 1 of the Convention provides:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "A. The parties’ submissions", "1. The Government", "64. The Government acknowledged that the events in question had taken place on board Italian military ships. However, they denied that the Italian authorities had exercised “absolute and exclusive control” over the applicants.", "65. They submitted that the vessels carrying the applicants had been intercepted in the context of the rescue on the high seas of persons in distress – which is an obligation imposed by international law, namely, the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) – and could in no circumstances be described as a maritime police operation.", "The Italian ships had confined themselves to intervening to assist the three vessels in distress and ensuring the safety of the persons on board. They had then accompanied the intercepted migrants to Libya in accordance with the bilateral agreements of 2007 and 2009. The Government argued that the obligation to save human lives on the high seas, as required under the Montego Bay Convention, did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.", "66. As regards the applicants’ “rescue”, which in total had lasted no more than ten hours, the authorities had provided the parties concerned with the necessary humanitarian and medical assistance and had in no circumstances used violence; they had not boarded the boats and had not used weapons. The Government concluded that the instant application differed from the case of Medvedyev and Others v. France ([GC], no. 3394/03, ECHR 2010), in which the Court had affirmed that the applicants fell under French jurisdiction having regard to the full and exclusive nature of the control exercised by France over a vessel on the high seas and over its crew.", "2. The applicants", "67. The applicants submitted that there was no question, in the instant case, but that Italy had jurisdiction. As soon as they had boarded the Italian ships, they had been under the exclusive control of Italy, which had therefore been bound to fulfil all the obligations arising out of the Convention and the Protocols thereto.", "They pointed out that Article 4 of the Italian Navigation Code expressly provided that vessels flying the Italian flag fell within Italian jurisdiction, even when sailing outside territorial waters.", "3. Third-party interveners", "68. The third-party interveners considered that, in accordance with the principles of customary international law and the Court’s case-law, the obligation on States not to return asylum-seekers, even “potential” asylum-seekers, and to ensure that they had access to a fair hearing were extraterritorial in their scope.", "69. Under international law concerning the protection of refugees, the decisive test in establishing the responsibility of a State was not whether the person being returned was on the territory of a State but whether that person fell under the effective control and authority of that State.", "The third-party interveners referred to the Court’s case-law concerning Article 1 of the Convention and the extraterritorial scope of the notion of “jurisdiction”, and to the conclusions of other international authorities. They stressed the importance of avoiding double standards in the field of safeguarding human rights and ensuring that a State was not authorised to commit acts outside its territory which would never be accepted within that territory.", "B. The Court’s assessment", "1. General principles governing jurisdiction within the meaning of Article 1 of the Convention", "70. Under Article 1 of the Convention, the undertaking of the Contracting States is to “secure” (“ reconnaître ” in French) to everyone within their “jurisdiction” the rights and freedoms defined in Section I of the Convention (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.), [GC], no. 52207/99, § 66, ECHR 2001-XII). The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).", "71. The jurisdiction of a State, within the meaning of Article 1, is essentially territorial (see Banković and Others, cited above, §§ 61 and 67, and Ilaşcu and Others, cited above, § 312). It is presumed to be exercised normally throughout the State’s territory (loc. cit., and see Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II).", "72. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç and Others, cited above, § 67; and Ilaşcu and Others, cited above, § 314).", "73. In its first judgment in Loizidou v. Turkey, the Court ruled that bearing in mind the object and purpose of the Convention the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory ((preliminary objections), 23 March 1995, § 62, Series A no. 310), which is however ruled out when, as in Banković and Others, only an instantaneous extraterritorial act is in issue, since the wording of Article 1 does not accommodate such an approach to “jurisdiction” (cited above, § 75). In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, ECHR 2011, and Medvedyev and Others, cited above, § 67).", "74. Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be “divided and tailored” (see Al ‑ Skeini and Others, cited above, § 136-37; compare Banković and Others, cited above, § 75).", "75. There are other instances in the Court’s case-law of the extraterritorial exercise of jurisdiction by a State in cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, the Court, basing itself on customary international law and treaty provisions, has recognised the extraterritorial exercise of jurisdiction by the relevant State (see Banković and Others, cited above, § 73, and Medvedyev and Others, cited above, § 65).", "2. Application to the instant case", "76. It is not disputed before the Court that the events in issue occurred on the high seas, on board military ships flying the Italian flag. The Government acknowledge, furthermore, that the Revenue Police and Coastguard ships onto which the applicants were embarked were fully within Italian jurisdiction.", "77. The Court observes that, by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principle of international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State (see paragraph 75 above). Where there is control over another, this is de jure control exercised by the State in question over the individuals concerned.", "78. The Court observes, furthermore, that the above-mentioned principle is enshrined in domestic law in Article 4 of the Italian Navigation Code and is not disputed by the Government (see paragraph 18 above). It concludes that the instant case does indeed constitute a case of extraterritorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention.", "79. Moreover, Italy cannot circumvent its “jurisdiction” under the Convention by describing the events in issue as rescue operations on the high seas. In particular, the Court cannot subscribe to the Government’s argument that Italy was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned at the material time.", "80. In that connection, it is sufficient to observe that in Medvedyev and Others, cited above, the events in issue took place on board the Winner, a vessel flying the flag of a third State but whose crew had been placed under the control of French military personnel. In the particular circumstances of that case, the Court examined the nature and scope of the actions carried out by the French officials in order to ascertain whether there was at least de facto continued and uninterrupted control exercised by France over the Winner and its crew (ibid., §§ 66-67).", "81. The Court observes that in the instant case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.", "82. Accordingly, the events giving rise to the alleged violations fall within Italy’s “jurisdiction” within the meaning of Article 1 of the Convention.", "III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "83. The applicants complained that they had been exposed to the risk of torture or inhuman or degrading treatment in Libya and in their respective countries of origin, namely Eritrea and Somalia, as a result of having been returned. They relied on Article 3 of the Convention which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "84. The Court observes that two different aspects of Article 3 of the Convention are in issue and must be examined separately: firstly, the risk that the applicants would suffer inhuman and degrading treatment in Libya; and secondly, the danger of being returned to their respective countries of origin.", "A. Alleged violation of Article 3 of the Convention on account of the applicants having been exposed to the risk of inhuman and degrading treatment in Libya", "1. The parties’ submissions", "(a) The applicants", "85. The applicants alleged that they had been the victims of an arbitrary refoulement, in violation of the Convention. They stated that they had not been afforded the opportunity to challenge their return to Libya and to request international protection from the Italian authorities.", "86. Having been given no information concerning their true destination, the applicants had been convinced, throughout the voyage aboard the Italian ships, that they were being taken to Italy. They claimed to have been the victims of a real “deception” in that regard on the part of the Italian authorities.", "87. No procedure to identify the intercepted migrants and to gather information as to their personal circumstances had been possible aboard the ships. In those circumstances, no formal request for asylum could have been made. Nevertheless, upon approaching the Libyan coast, the applicants and a substantial number of other migrants had asked the Italian military personnel not to disembark them at the port of Tripoli, from where they had just fled, and to take them to Italy.", "The applicants affirmed that they had quite clearly expressed their wish not to be handed over to the Libyan authorities. They challenged the Government’s contention that such a request could not be considered to be a request for international protection.", "88. The applicants then argued that they had been returned to a country where there were sufficient reasons to believe that they would be subjected to treatment in breach of the Convention. Many international sources had reported the inhuman and degrading conditions in which irregular migrants, notably of Somali and Eritrean origin, were held in Libya and the precarious living conditions experienced by clandestine migrants in that country.", "In that connection, the applicants referred to the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) report of April 2010 and the texts and documents produced by the third parties concerning the situation in Libya.", "89. In their view, Italy could not have been unaware of that increasingly worsening situation when it signed the bilateral agreements with Libya and carried out the push-back operations in issue.", "90. Furthermore, the applicants’ fears and concerns had proved to be well-founded. They had all reported inhuman and degrading conditions of detention and, following their release, precarious living conditions associated with their status as illegal immigrants.", "91. The applicants argued that the decision to push back to Libya clandestine migrants intercepted on the high seas was a genuine political choice on the part of Italy, aimed at giving the police the main responsibility for controlling illegal immigration, in disregard of the protection of the fundamental rights of the people concerned.", "(b) The Government", "92. The Government argued, firstly, that the applicants had not adequately proved that they had been subjected to treatment allegedly in contravention of the Convention. They could not therefore be considered to be “victims” within the meaning of Article 34 of the Convention.", "93. They went on to argue that the applicants had been transferred to Libya in accordance with the bilateral agreements signed by Italy and Libya in 2007 and 2009. Those bilateral agreements were a response to increasing migratory flows between Africa and Europe and had been signed in a spirit of cooperation between two countries engaged in combating clandestine immigration.", "94. The bodies of the European Union had, on numerous occasions, encouraged cooperation between Mediterranean countries in controlling migration and combating crimes associated with clandestine immigration. The Government referred, in particular, to European Parliament Resolution No. 2006/2250 and to the European Pact on Immigration and Asylum adopted by the Council of the European Union on 24 September 2008, which affirmed the need for European Union States to cooperate and establish partnerships with countries of origin and transit in order to strengthen control of the European Union’s external borders and to combat illegal immigration.", "95. The Government submitted that the events of 6 May 2009, which gave rise to this application, had been conducted in the context of a rescue operation on the high seas in accordance with international law. They stated that Italian military ships had intervened in a manner consistent with the Montego Bay Convention and the International Convention on Maritime Search and Rescue (“the SAR Convention”) in dealing with the situation of immediate danger that the vessels had been in and saving the lives of the applicants and the other migrants.", "In the Government’s view, the legal system prevailing on the high seas was characterised by the principle of freedom of navigation. In that context, it was not necessary to identify the parties concerned. The Italian authorities had merely provided the necessary humanitarian assistance. Identity checks of the applicants had been kept to a minimum because no maritime police operation on board the ships had been envisaged.", "96. At no time during their transfer to Libya had the applicants expressed their intention to apply for political asylum or any other form of international protection. The Government argued that a request made by the applicants not to be handed over to the Libyan authorities could not be interpreted as a request for asylum.", "In that regard they stated that, had the parties concerned asked for asylum, they would have been taken to Italian territory, as had been the case in other high-seas operations conducted in 2009.", "97. The Government also argued that Libya was a safe host country. In support of that statement, they referred to the fact that Libya had ratified the United Nations International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. They also referred to Libya’s membership of the International Organization for Migration (IOM).", "Though not a party to the United Nations Convention relating to the Status of Refugees, Libya had nevertheless authorised UNHCR and the IOM to open offices in Tripoli, thus allowing numerous applicants to be granted refugee status and guaranteed international protection.", "98. The Government drew the Court’s attention to the fact that, when Libya ratified the 2008 Treaty on Friendship, Partnership and Cooperation, it expressly undertook to comply with the principles of the United Nations Charter and the Universal Declaration of Human Rights. Italy had had no reason to believe that Libya would evade its commitments.", "That circumstance, and the fact that the UNHCR and IOM offices were present and active in Tripoli, fully justified Italy’s conviction that Libya was a safe host country for migrants intercepted on the high seas. Moreover, the Government were of the view that recognition of the refugee status granted by UNHCR to numerous applicants, including some of the applicants in this case, was unequivocal proof that the situation in Libya at the material time was in compliance with international human rights standards.", "99. The Government acknowledged that the situation in Libya had deteriorated after April 2010, when the authorities closed the UNHCR office in Tripoli, and had definitively broken down following the events at the beginning of 2011, but they asserted that Italy had immediately ceased pushing back migrants to Libya and had changed the arrangements for the rescue of migrants on the high seas by henceforth authorising entry onto Italian territory.", "100. The Government disputed the existence of a “Government practice” which consisted, according to the applicants, of effecting arbitrary transfers to Libya. In that connection, they described the application as a “political and ideological diatribe” against the action of the Italian authorities. The Government requested the Court to examine only the events of 6 May 2009 and not call into question Italy’s powers as regards immigration control, an area which they considered to be extremely sensitive and complex.", "(c) Third-party interveners", "101. Relying on the statements of numerous direct witnesses, Human Rights Watch and UNHCR condemned Italy’s forced return of irregular migrants to Libya. During 2009 Italy had carried out nine operations on the high seas, returning 834 Somali, Eritrean and Nigerian nationals to Libya.", "102. Human Rights Watch had denounced the situation in Libya on several occasions, notably in its reports of 2006 and 2009. The organisation stated that, because there was no national asylum system in Libya, irregular migrants were systematically arrested and often subjected to torture and physical violence, including rape. In breach of United Nations guidelines on detention, migrants were often detained indefinitely and with no judicial supervision. Furthermore, conditions of detention were inhuman. Migrants were tortured and no medical assistance was provided in the various camps throughout the country. They might at any time be returned to their countries of origin or abandoned in the desert, where certain death awaited them.", "103. The AIRE Centre, Amnesty International and the International Federation for Human Rights (FIDH) observed that reports from reliable sources over several years had continued to demonstrate that the human rights situation in Libya was disastrous, notably for refugees, asylum-seekers and migrants, and especially for those from particular regions of Africa, such as Eritrea and Somalia.", "The three intervening parties were of the view that there was a “duty to investigate” where there was credible information from reliable sources that detention or living conditions in the receiving State were incompatible with Article 3 of the Convention.", "In accordance with the principle of pacta sunt servanda, a State could not evade its obligations under the Convention by relying on commitments arising out of bilateral or multilateral agreements concerning the fight against clandestine immigration.", "104. UNHCR stated that while the Italian authorities had not provided detailed information concerning the push-back operations, several witnesses interviewed by the Office of the High Commissioner had given an account similar to that of the applicants. In particular, they had reported that, in order to encourage people to board the Italian ships, Italian military personnel had led them to believe that they were being taken to Italy. Various witnesses stated that they had been handcuffed and had been subjected to violence during their transfer to Libyan territory and on arrival at the detention centre at which they were to be held. Furthermore, the Italian authorities had confiscated the migrants’ personal effects, including the UNHCR certificates attesting to their status as refugees. Various witnesses had also confirmed that they had asked for protection and that they had specifically informed the Italian authorities of that fact during the operations.", "105. UNHCR affirmed that at least five of the migrants returned to Libya who had subsequently managed to return to Italy, including Mr Ermias Berhane, had been granted refugee status in Italy. Moreover, in 2009 the UNHCR office in Tripoli had granted refugee status to seventy-three people returned by Italy, including fourteen of the applicants. That proved that the operations conducted by Italy on the high seas involved a genuine risk of the arbitrary return of persons in need of international protection.", "106. UNHCR then submitted that none of Italy’s arguments justifying the returns was acceptable. Neither the principle of cooperation between States to combat illegal trafficking in migrants, nor the provisions of international law of the sea concerning the safety of human life at sea, exempted States from their obligation to comply with the principles of international law.", "107. Libya, a transit and receiving State for migratory flows from Asia and Africa, provided asylum-seekers with no form of protection. Though signatory to certain international human rights instruments, it barely complied with its obligations. In the absence of any national asylum law system, activities in that area had been conducted exclusively by UNHCR and its partners. Nevertheless, the activities of the Office of the High Commissioner had never been officially recognised by the Libyan government, which in April 2010 had ordered UNHCR to close its Tripoli office and cease those activities.", "Given the circumstances, the Libyan government had never granted any formal status to persons registered by UNHCR as refugees and they were guaranteed no form of protection.", "108. Until the events of 2011, anyone considered to be an illegal immigrant had been held in a “detention centre”, the majority of which had been visited by UNHCR. The living conditions in those centres had been mediocre and characterised by overcrowding and inadequate sanitary facilities. That situation had been aggravated by the push-back operations, which had exacerbated overcrowding and led to further deterioration in the sanitary conditions. That had led to a significantly greater need for basic assistance just to keep those individuals alive.", "109. According to the Columbia Law School Human Rights Clinic, while clandestine immigration by sea was not a new phenomenon, the international community had increasingly recognised the need to restrict immigration-control practices, including interception at sea, which could hinder migrants’ access to protection and thus expose them to the risk of torture.", "2. The Court’s assessment", "(a) Admissibility", "110. The Government submitted that the applicants could not claim to be “victims”, within the meaning of Article 34 of the Convention, of the events of which they complained. They disputed the existence of a genuine risk that the applicants would be subjected to inhuman and degrading treatment as a result of their return to Libya. That danger had to be assessed on the basis of substantial grounds relating to the circumstances of each applicant. The information provided by the parties concerned was vague and insufficient.", "111. The Court notes that the issue raised by this preliminary objection is closely bound up with those it will have to consider when examining the complaints under Article 3 of the Convention. That provision requires that the Court establish whether or not there are substantial grounds for believing that the parties concerned ran a real risk of being subjected to torture or inhuman or degrading treatment after having been pushed back. This issue should therefore be joined to examination on the merits.", "112. The Court considers that this part of the application raises complex issues of law and fact which cannot be determined without an examination on the merits. It follows that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "(i) General principles", "(α) Responsibility of Contracting States in cases of expulsion", "113. According to the Court’s established case-law, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Court also notes that the right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI).", "114. However, expulsion, extradition or any other measure to remove an alien may give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Soering, cited above, §§ 90-91; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007).", "115. In this type of case, the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Saadi v. Italy [GC], no. 37201/06, § 126, ECHR 2008).", "(β) Factors used to assess the risk of being subjected to treatment in breach of Article 3 of the Convention", "116. In determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu (see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present one, the Court’s examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one (see Chahal v. the United Kingdom, 15 November 1996, § 96, Reports 1996-V).", "117. In order to ascertain whether or not there was a risk of ill-treatment, the Court must examine the foreseeable consequences of the removal of an applicant to the receiving country in the light of the general situation there as well as his or her personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine ).", "118. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human rights protection associations such as Amnesty International, or governmental sources (see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005-VI; Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65 ‑ 66, 20 February 2007; and Saadi, cited above, § 131).", "119. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are substantial grounds for believing in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-49).", "120. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (see H.L.R. v. France, cited above, § 40).", "121. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of removal.", "(ii) Application to the instant case", "122. The Court has already had occasion to note that the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers. It does not underestimate the burden and pressure this situation places on the States concerned, which are all the greater in the present context of economic crisis (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011). It is particularly aware of the difficulties related to the phenomenon of migration by sea, involving for States additional complications in controlling the borders in southern Europe.", "However, having regard to the absolute character of the rights secured by Article 3, that cannot absolve a State of its obligations under that provision.", "123. The Court reiterates that protection against the treatment prohibited by Article 3 imposes on States the obligation not to remove any person who, in the receiving country, would run the real risk of being subjected to such treatment.", "It notes that the numerous reports by international bodies and non-governmental organisations paint a disturbing picture of the treatment meted out to clandestine immigrants in Libya at the material time. The conclusions of those documents are moreover corroborated by the CPT report of 28 April 2010 (see paragraph 36 above).", "124. The Court observes in passing that the situation in Libya worsened after the closure of the UNHCR office in Tripoli in April 2010 and the subsequent popular revolution which broke out in the country in February 2011. However, for the purposes of examining this case, the Court will refer to the situation prevailing in Libya at the material time.", "125. According to the various reports mentioned above, during the period in question no rule governing the protection of refugees was complied with by Libya. Any person entering the country by illegal means was deemed to be clandestine and no distinction was made between irregular migrants and asylum-seekers. Consequently, those persons were systematically arrested and detained in conditions that outside visitors, such as delegations from UNHCR, Human Rights Watch and Amnesty International, could only describe as inhuman. Many cases of torture, poor hygiene conditions and lack of appropriate medical care were denounced by all the observers. Clandestine migrants were at risk of being returned to their countries of origin at any time and, if they managed to regain their freedom, were subjected to particularly precarious living conditions as a result of their irregular situation. Irregular immigrants, such as the applicants, were destined to occupy a marginal and isolated position in Libyan society, rendering them extremely vulnerable to xenophobic and racist acts (see paragraphs 35-41 above).", "126. Those same reports clearly show that clandestine migrants disembarked in Libya following their interception by Italy on the high seas, such as the applicants, were exposed to those risks.", "127. Confronted with the disturbing picture painted by the various international organisations, the Government argued that Libya was, at the material time, a “safe” destination for migrants intercepted on the high seas.", "They based that belief on the presumption that Libya had complied with its international commitments as regards asylum and the protection of refugees, including the principle of non-refoulement. They claimed that the Italian-Libyan Friendship Treaty of 2008, in accordance with which clandestine migrants were returned to Libya, made specific reference to compliance with the provisions of international human rights law and other international conventions to which Libya was party.", "128. In that regard, the Court observes that Libya’s failure to comply with its international obligations was one of the facts denounced in the international reports on that country. In any event, the Court is bound to observe that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill ‑ treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see M.S.S. v. Belgium and Greece, cited above, § 353, and, mutatis mutandis, Saadi, cited above, § 147).", "129. Furthermore, the Court observes that Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya. Even if it were to be assumed that those agreements made express provision for the return to Libya of migrants intercepted on the high seas, the Contracting States’ responsibility continues even after their having entered into treaty commitments subsequent to the entry into force of the Convention or its Protocols in respect of these States (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII, and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010).", "130. With regard to the Government’s argument based on the presence of a UNHCR office in Tripoli, it must be noted that the activity of the Office of the High Commissioner, even before it was finally closed in April 2010, was never recognised in any way by the Libyan government. The documents examined by the Court show that the refugee status granted by UNHCR did not guarantee the persons concerned any kind of protection in Libya.", "131. The Court notes again that that situation was well known and easy to verify on the basis of multiple sources. It therefore considers that when the applicants were removed, the Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country.", "132. The Government submitted that the applicants had failed to describe sufficiently the risks in Libya because they had not applied to the Italian authorities for asylum. The mere fact that the applicants had opposed their disembarkation in Libya could not, according to the Government, be considered to be a request for protection, imposing on Italy an obligation under Article 3 of the Convention.", "133. The Court observes, firstly, that that fact was disputed by the applicants, who stated that they had informed the Italian military personnel of their intention to request international protection. Furthermore, the applicants’ version is corroborated by the numerous witness statements gathered by UNHCR and Human Rights Watch. In any event, the Court considers that it was for the national authorities, faced with a situation in which human rights were being systematically violated, as described above, to find out about the treatment to which the applicants would be exposed after their return (see, mutatis mutandis, Chahal, cited above, §§ 104-05; Jabari, cited above, §§ 40-41; and M.S.S. v. Belgium and Greece, cited above, § 359). Having regard to the circumstances of the case, the fact that the parties concerned had failed expressly to request asylum did not exempt Italy from fulfilling its obligations under Article 3.", "134. In that connection, the Court notes that none of the provisions of international law cited by the Government justified the applicants being pushed back to Libya, in so far as the rules for the rescue of persons at sea and those governing the fight against people trafficking impose on States the obligation to fulfil the obligations arising out of international refugee law, including the non-refoulement principle (see paragraph 23 above).", "135. That non-refoulement principle is also enshrined in Article 19 of the Charter of Fundamental Rights of the European Union. In that connection, the Court attaches particular weight to the content of a letter written on 15 July 2009 by Mr Jacques Barrot, Vice-President of the European Commission, in which he stressed the importance of compliance with the principle of non-refoulement in the context of operations carried out on the high seas by member States of the European Union (see paragraph 34 above).", "136. Having regard to the foregoing, the Court considers that in the present case substantial grounds have been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. The fact that a large number of irregular immigrants in Libya found themselves in the same situation as the applicants does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above, § 132).", "137. Relying on these conclusions and the obligations on States under Article 3, the Court considers that, by transferring the applicants to Libya, the Italian authorities, in full knowledge of the facts, exposed them to treatment proscribed by the Convention.", "138. Accordingly, the Government’s objection concerning the applicants’ lack of victim status must be rejected and it must be concluded that there has been a violation of Article 3 of the Convention.", "B. Alleged violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of arbitrary repatriation to Eritrea and Somalia", "1. The parties’ submissions", "(a) The applicants", "139. The applicants alleged that their transfer to Libya, where refugees and asylum-seekers were granted no form of protection, exposed them to the risk of being returned to their respective countries of origin: Somalia and Eritrea. They claimed that various reports by international sources attested to the existence of conditions in both those countries which breached human rights.", "140. The applicants, who had fled their respective countries, argued that they had not been afforded any opportunity to secure international protection. The fact that most of them had obtained refugee status after their arrival in Libya confirmed that their fears of being subjected to ill-treatment were well-founded. They submitted that, although the Libyan authorities did not recognise the refugee status granted by the UNHCR office in Tripoli, the granting of that status demonstrated that the group of migrants to which they belonged was in need of international protection.", "(b) The Government", "141. The Government pointed out that Libya was a signatory to various international instruments concerning the protection of human rights and observed that, by ratifying the 2008 Friendship Treaty, it had expressly undertaken to comply with the principles contained in the United Nations Charter and in the Universal Declaration of Human Rights.", "142. They reaffirmed that the presence of UNHCR in Libya constituted an assurance that no one entitled to asylum or any other form of international protection would be arbitrarily expelled. They claimed that a significant number of applicants had been granted refugee status in Libya, which would rule out their repatriation.", "(c) Third-party interveners", "143. UNHCR stated that Libya frequently conducted collective expulsions of refugees and asylum-seekers to their countries of origin, where they could be subjected to torture and other ill-treatment. It denounced the absence of a system for international protection in Libya, which led to a very high risk of “chain refoulements ” of persons in need of protection.", "The Office of the United Nations High Commissioner, Human Rights Watch and Amnesty International noted the risk, for individuals forcibly repatriated to Eritrea and Somalia, of being subjected to torture and inhuman or degrading treatment and of being exposed to extremely precarious living conditions.", "144. The AIRE Centre, Amnesty International and the FIDH submitted that, having regard to the particular vulnerability of asylum-seekers and persons intercepted on the high seas and the lack of adequate guarantees or procedures on board vessels allowing for push-backs to be challenged, it was even more vital for the Contracting Parties involved in the return operations to ascertain the actual situation in the receiving States, including as regards the risk of any subsequent return.", "2. The Court’s assessment", "(a) Admissibility", "145. The Court considers that this complaint raises issues of law and fact which cannot be determined without an examination on the merits. It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "146. The Court reiterates the principle according to which indirect refoulement of an alien leaves the responsibility of the Contracting State intact, and that State is required, in accordance with the well-established case-law, to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation (see, mutatis mutandis, T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III, and M.S.S. v. Belgium and Greece, cited above, § 342).", "147. It is a matter for the State carrying out the return to ensure that the intermediary country offers sufficient guarantees to prevent the person concerned being removed to his country of origin without an assessment of the risks faced. The Court observes that that obligation is all the more important when, as in the instant case, the intermediary country is not a State Party to the Convention.", "148. In the instant case, the Court’s task is not to rule on the violation of the Convention in the event of repatriation of the applicants, but to ascertain whether there were sufficient guarantees that the parties concerned would not be arbitrarily returned to their countries of origin, where they had an arguable claim that their repatriation would breach Article 3 of the Convention.", "149. The Court has a certain amount of information on the general situation in Eritrea and Somalia, the applicants’ countries of origin, submitted by the parties concerned and by the third-party interveners (see paragraphs 43 and 44 above).", "150. It observes that, according to UNHCR and Human Rights Watch, individuals forcibly repatriated to Eritrea face being tortured and detained in inhuman conditions merely for having left the country irregularly. As regards Somalia, in the recent case of Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011) the Court noted the serious levels of violence in Mogadishu and the increased risk to persons returned to that country of being forced either to transit through areas affected by the armed conflict or to seek refuge in camps for displaced persons or refugees, where living conditions were appalling.", "151. The Court considers that all the information in its possession shows prima facie that the situation in Somalia and Eritrea posed and continues to pose widespread serious problems of insecurity. That finding, moreover, has not been disputed before the Court.", "152. Consequently, the applicants could arguably claim that their repatriation would breach Article 3 of the Convention. The Court must now ascertain whether the Italian authorities could reasonably expect Libya to offer sufficient guarantees against arbitrary repatriation.", "153. The Court observes, firstly, that Libya has not ratified the Geneva Convention on Refugee Status. Furthermore, international observers note the absence of any form of asylum and protection procedure for refugees in Libya. In that connection, the Court has already had occasion to note that the presence of UNHCR in Tripoli hardly constituted a guarantee of protection for asylum-seekers on account of the negative attitude of the Libyan authorities, which did not recognise any value in the status of refugee (see paragraph 130 above).", "154. In those circumstances, the Court cannot subscribe to the Government’s argument that the activities of UNHCR represented a guarantee against arbitrary repatriation. Moreover, Human Rights Watch and UNHCR had denounced several earlier forced returns of irregular migrants, including asylum-seekers and refugees, to high-risk countries.", "155. Therefore, the fact that some of the applicants have obtained refugee status does not reassure the Court as regards the risk of arbitrary return. On the contrary, the Court shares the applicants’ view that that constitutes additional evidence of the vulnerability of the parties concerned.", "156. In view of the foregoing, the Court considers that, when the applicants were transferred to Libya, the Italian authorities knew or should have known that there were insufficient guarantees protecting the parties concerned from the risk of being arbitrarily returned to their countries of origin, having regard in particular to the lack of any asylum procedure and the impossibility of making the Libyan authorities recognise the refugee status granted by UNHCR.", "157. Furthermore, the Court reaffirms that Italy is not exempt from complying with its obligations under Article 3 of the Convention because the applicants failed to ask for asylum or to describe the risks faced as a result of the lack of an asylum system in Libya. It reiterates that the Italian authorities should have ascertained how the Libyan authorities fulfilled their international obligations in relation to the protection of refugees.", "158. It follows that the transfer of the applicants to Libya also violated Article 3 of the Convention because it exposed the applicants to the risk of arbitrary repatriation.", "IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "159. The applicants stated that they had been the subject of a collective expulsion having no basis in law. They relied on Article 4 of Protocol No. 4 to the Convention, which provides:", "“Collective expulsion of aliens is prohibited.”", "A. The parties’ submissions", "1. The Government", "160. The Government submitted that Article 4 of Protocol No. 4 was not applicable in the instant case. They argued that the guarantee provided by that provision came into play only in the event of the expulsion of persons on the territory of a State or who had crossed the national border illegally. In the instant case, the measure in issue was a refusal to authorise entry into national territory rather than “expulsion”.", "2. The applicants", "161. While acknowledging that the word “expulsion” might seemingly constitute an obstacle to the applicability of Article 4 of Protocol No. 4, the applicants submitted that an evolutive approach should lead the Court to recognise the applicability of Article 4 of Protocol No. 4 in the present case.", "162. In particular, the applicants sought a functional and teleological interpretation of that provision. In their view, the primary purpose of prohibiting collective expulsions was to prevent States from forcibly transferring groups of aliens to other States without examining their individual circumstances, even summarily. Such a prohibition should also apply to measures to push back migrants on the high seas, carried out without any preliminary formal decision, in so far as such measures could constitute “hidden expulsions”. A teleological and “extraterritorial” interpretation of that provision would render it practical and effective rather than theoretical and illusory.", "163. According to the applicants, even if the Court were to decide to make the prohibition established by Article 4 of Protocol No. 4 strictly territorial in scope, their return to Libya would in any case fall within the scope of application of that Article because it had occurred on a vessel flying the Italian flag, which, under Article 4 of the Italian Navigation Code, was considered to be “Italian territory”.", "Their return to Libya, carried out with no prior identification and no examination of the personal circumstances of each applicant, had constituted a removal measure that was, in substance, “collective”.", "3. Third-party interveners", "164. The United Nations High Commissioner for Human Rights (OHCHR), whose submissions were shared by UNHCR, argued that Article 4 of Protocol No. 4 was applicable in the instant case. They submitted that the issue was of key importance, having regard to the potentially significant effects of a broad interpretation of that provision in the field of international migration.", "Having pointed out that collective expulsions of aliens, including those in an irregular situation, were generally prohibited by international and Community law, the OHCHR argued that persons intercepted on the high seas should be able to benefit from protection against that kind of expulsion, even though they had not been able to reach a State’s border.", "Collective expulsions on the high seas were prohibited having regard to the principle of good faith, in the light of which the Convention provisions must be interpreted. To allow States to push back migrants intercepted on the high seas without complying with the guarantee enshrined in Article 4 of Protocol No. 4 would amount to accepting that States were able to evade their obligations under the Convention by advancing their border-control operations.", "Moreover, recognition of the extraterritorial exercise of a Contracting State’s jurisdiction over actions taking place on the high seas would, according to the OHCHR, entail a presumption that all the rights guaranteed by the Convention and its Protocols would be applicable.", "165. The Columbia Law School Human Rights Clinic pointed out the importance of procedural guarantees in the area of protection of the human rights of refugees. States were bound to examine the situation of each individual on a case-by-case basis in order to guarantee effective protection of the fundamental rights of the parties concerned and to avoid removing them while there was a risk of harm.", "The Columbia Law School Human Rights Clinic submitted that clandestine immigration by sea was not a new phenomenon but that the international community had increasingly recognised the need to identify constraints on State immigration-control practices, including interception at sea. The principle of non-refoulement required States to refrain from removing individuals without having assessed their circumstances on a case-by-case basis.", "Various bodies of the United Nations, such as the Committee Against Torture, had clearly stated that such practices risked breaching international human rights standards and had emphasised the importance of individual identification and assessment to prevent people being returned to situations where they would be at risk. The Inter-American Commission for Human Rights had recognised the importance of these procedural guarantees in The Haitian Centre for Human Rights et al. v. United States (Case no. 10.675, report no. 51/96, § 163), in which it had expressed the opinion that the United States had impermissibly returned interdicted Haitian migrants without making an adequate determination of their status, and without granting them a hearing to ascertain whether they qualified as refugees. That decision was of particular significance as it contradicted the earlier position of the Supreme Court of the United States in Sale v. Haitian Centers Council (113 S. Ct., 2549, 1993).", "B. The Court’s assessment", "1. Admissibility", "166. The Court must first examine the question of the applicability of Article 4 of Protocol No. 4. In Becker v. Denmark (no. 7011/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 4, p. 236) concerning the repatriation of a group of approximately two hundred Vietnamese children by the Danish authorities, the Commission defined, for the first time, the “collective expulsion of aliens” as being “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group”.", "167. That definition was used subsequently by the Convention bodies in other cases concerning Article 4 of Protocol No. 4. The Court observes that the majority of such cases involved persons who were on the territory in issue (see K.G. v. the Federal Republic of Germany, no. 7704/76, Commission decision of 11 March 1977, unreported; O. and Others v. Luxembourg, no. 7757/77, Commission decision of 3 March 1978, unreported; A. and Others v. the Netherlands, no. 14209/88, Commission decision of 16 December 1988, DR 59, p. 274; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Čonka v. Belgium, no. 51564/99, ECHR 2002 ‑ I; Davydov v. Estonia (dec.), no. 16387/03, 31 May 2005; Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia” (dec.), no. 18670/03, ECHR 2005-VIII; Sultani v. France, no. 45223/05, ECHR 2007-IV; Ghulami v. France (dec.), no. 45302/05, 7 April 2009; and Dritsas and Others v. Italy (dec.), no. 2344/02, 1 February 2011).", "168. The case of Xhavara and Others v. Italy and Albania ((dec.), no. 39473/98, 11 January 2001), however, concerned Albanian nationals who had attempted to enter Italy illegally on board an Albanian vessel and who had been intercepted by an Italian warship approximately 35 nautical miles off the Italian coast. The Italian ship had attempted to prevent the parties concerned from disembarking on national territory, leading to the death of fifty-eight people, including the applicants’ parents, as a result of a collision. In that case, the applicants complained in particular of Legislative Decree no. 60 of 1997, which provided for the immediate expulsion of irregular aliens, a measure subject only to appeal without suspensive effect. They considered that that constituted a breach of the guarantee afforded by Article 4 of Protocol No. 4. The Court rejected the complaint on the ground of incompatibility ratione personae, as the provision in question had not been applied to their case, and did not rule on the applicability of Article 4 of Protocol No. 4 to the case in issue.", "169. Therefore, in the instant case, the Court must, for the first time, examine whether Article 4 of Protocol No. 4 applies to a case involving the removal of aliens to a third State carried out outside national territory. It must ascertain whether the transfer of the applicants to Libya constituted a “collective expulsion of aliens” within the meaning of the provision in issue.", "170. In interpreting the provisions of the Convention, the Court draws on Articles 31 to 33 of the Vienna Convention on the Law of Treaties (see, for example, Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Demir and Baykara v. Turkey [GC], no. 34503/97, § 65, ECHR 2008; and Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008).", "171. Pursuant to the Vienna Convention on the Law of Treaties, the Court must establish the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of the provision from which they are taken. It must take account of the fact that the provision in issue forms part of a treaty for the effective protection of human rights and that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). The Court must also take account of any relevant rules and principles of international law applicable in the relations between the Contracting Parties (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005-VI; see also Article 31 § 3 (c) of the Vienna Convention). The Court may also have recourse to supplementary means of interpretation, notably the travaux préparatoires of the Convention, either to confirm the meaning determined in accordance with the methods referred to above or to clarify the meaning when it would otherwise be ambiguous, obscure or manifestly absurd and unreasonable (see Article 32 of the Vienna Convention).", "172. The Government submitted that there was a logical obstacle to the applicability of Article 4 of Protocol No. 4 in the instant case, namely the fact that the applicants were not on Italian territory at the time of their transfer to Libya so that measure, in the Government’s view, could not be considered to be an “expulsion” within the ordinary meaning of the term.", "173. The Court does not share the Government’s opinion on this point. It notes, firstly, that, while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol No. 4 does not in itself pose an obstacle to its extraterritorial application. It must be noted that Article 4 of Protocol No. 4 contains no reference to the notion of “territory”, whereas the wording of Article 3 of the same Protocol, on the contrary, specifically refers to the territorial scope of the prohibition on the expulsion of nationals. Likewise, Article 1 of Protocol No. 7 explicitly refers to the notion of territory regarding procedural safeguards relating to the expulsion of aliens lawfully resident in the territory of a State. In the Court’s view, that wording cannot be ignored.", "174. The travaux préparatoires are not explicit as regards the scope of application and ambit of Article 4 of Protocol No. 4. In any event, the Explanatory Report to Protocol No. 4, drawn up in 1963, reveals that as far as the Committee of Experts was concerned the purpose of Article 4 was to formally prohibit “collective expulsions of aliens of the kind which was a matter of recent history”. Thus, it was “agreed that the adoption of [Article 4] and paragraph 1 of Article 3 could in no way be interpreted as in any way justifying measures of collective expulsion which may have been taken in the past”. The commentary on the draft reveals that, according to the Committee of Experts, the aliens to whom the Article refers are not only those lawfully resident on the territory but “all those who have no actual right to nationality in a State, whether they are passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality” (Article 4 of the final Committee draft, p. 505, § 34). Lastly, according to the drafters of Protocol No. 4, the word “expulsion” should be interpreted “in the generic meaning, in current use (to drive away from a place)”. While that last definition is contained in the section relating to Article 3 of the Protocol, the Court considers that it can also be applied to Article 4 of the same Protocol. It follows that the travaux préparatoires do not preclude extraterritorial application of Article 4 of Protocol No. 4.", "175. It remains to be seen, however, whether such an application is justified. To reply to that question, account must be taken of the purpose and meaning of the provision in issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for example, Soering, cited above, § 102; Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; X, Y and Z v. the United Kingdom, 22 April 1997, Reports 1997-II; V. v. the United Kingdom [GC], no. 24888/94, § 72, ECHR 1999-IX; and Matthews v. the United Kingdom [GC], no. 24833/94, § 39, ECHR 1999-I). Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005-XI).", "176. A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control in so far as they constitute tools for States to combat irregular immigration.", "The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control.", "177. The Court has already found that, according to the established case ‑ law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas. Article 4 would thus be ineffective in practice with regard to such situations, which, however, are on the increase. The consequence of that would be that migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.", "178. It is therefore clear that, while the notion of “jurisdiction” is principally territorial and is presumed to be exercised on the national territory of States (see paragraph 71 above), the notion of expulsion is also principally territorial in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see Medvedyev and Others, cited above, § 81).", "179. The above considerations do not call into question the right of States to establish their own immigration policies. It must be pointed out, however, that problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention. The Court reiterates in that connection that the provisions of treaties must be interpreted in good faith in the light of the object and purpose of the treaty and in accordance with the principle of effectiveness (see Mamatkulov and Askarov, cited above, § 123).", "180. Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.", "181. In the instant case, the Court considers that the operation resulting in the transfer of the applicants to Libya was carried out by the Italian authorities with the intention of preventing the irregular migrants disembarking on Italian soil. In that connection, it attaches particular weight to the statements given after the events to the Italian press and the State Senate by the Minister of the Interior, in which he explained the importance of the push-back operations on the high seas in combating clandestine immigration and stressed the significant decrease in disembarkations as a result of the operations carried out in May 2009 (see paragraph 13 above).", "182. Accordingly, the Court rejects the Government’s objection and considers that Article 4 of Protocol No. 4 is applicable in the instant case.", "2. Merits", "183. The Court observes that, to date, the Čonka case (see judgment cited above) is the only one in which it has found a violation of Article 4 of Protocol No. 4. When examining that case, in order to assess whether or not there had been a collective expulsion, it examined the circumstances of the case and ascertained whether the deportation decisions had taken account of the particular circumstances of the individuals concerned. The Court then stated (§§ 61-63):", "“The Court notes, however, that the detention and deportation orders in issue were made to enforce an order to leave the territory dated 29 September 1999; that order was made solely on the basis of section 7, first paragraph, point (2), of the Aliens Act, and the only reference to the personal circumstances of the applicants was to the fact that their stay in Belgium had exceeded three months. In particular, the document made no reference to their application for asylum or to the decisions of 3 March and 18 June 1999. Admittedly, those decisions had also been accompanied by an order to leave the territory, but by itself, that order did not permit the applicants’ arrest. The applicants’ arrest was therefore ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to their requests for asylum, but nonetheless sufficient to entail the implementation of the impugned measures. In those circumstances and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed does not enable it to eliminate all doubt that the expulsion might have been collective.", "That doubt is reinforced by a series of factors: firstly, prior to the applicants’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation ...; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.", "In short, at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account.”", "184. In their case-law, the bodies of the Convention have furthermore indicated that the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see K.G. v. the Federal Republic of Germany, cited above; Andric, cited above; and Sultani, cited above, § 81). Lastly, the Court has ruled that there is no violation of Article 4 of Protocol No. 4 if the lack of an expulsion decision made on an individual basis is the consequence of the applicants’ own culpable conduct (see Berisha and Haljiti, cited above, and Dritsas and Others, cited above).", "185. In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.", "That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.", "186. Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4 to the Convention. Accordingly, there has been a violation of that Article.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 AND ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "187. The applicants complained that they were not afforded an effective remedy under Italian law by which to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "1. The applicants", "188. The applicants submitted that Italy’s interceptions of persons on the high seas were not in accordance with the law and were not subject to a review of their lawfulness by a national authority. For that reason, the applicants had been deprived of any opportunity of lodging an appeal against their return to Libya and alleging a violation of Article 3 of the Convention and Article 4 of Protocol No. 4.", "189. The applicants argued that none of the requirements of the effectiveness of remedies provided for in the Court’s case-law had been met by the Italian authorities, which had not even identified the intercepted migrants and had ignored their requests for protection. Furthermore, even if it were to be assumed that they had had the opportunity to voice their request for asylum to the military personnel, they could not have been afforded the procedural guarantees provided by Italian law, such as access to a court, for the simple reason that they were on board ships.", "190. The applicants considered that the exercise of territorial sovereignty in connection with immigration policy should in no circumstances give rise to failure to comply with the obligations imposed on States by the Convention, including the obligation to guarantee the right to an effective remedy before a national court to any person falling within their jurisdiction.", "2. The Government", "191. The Government submitted that because the events in the instant case had taken place on board ships, it had been impossible to guarantee the applicants the right of access to a national court.", "192. At the hearing before the Grand Chamber, they argued that the applicants should have applied to the national courts to obtain recognition and, as the case may be, compensation for the alleged violations of the Convention. According to the Government, the Italian judicial system would have enabled any responsibility on the part of the military personnel who had rescued the applicants to be established both under national and international law.", "The Government contended that the applicants to whom UNHCR had granted refugee status were able to enter Italian territory at any time and to exercise their Convention rights, including the right to apply to the judicial authorities.", "3. Third-party interveners", "193. UNHCR stated that the principle of non-refoulement involved procedural obligations for States. Furthermore, the right of access to an effective asylum procedure conducted by a competent authority was all the more vital when it involved “mixed” migratory flows, in the framework of which potential asylum-seekers must be singled out and distinguished from the other migrants.", "194. The AIRE Centre, Amnesty International and the International Federation for Human Rights (FIDH) considered that the individuals pushed back as a result of the interception on the high seas did not have access to any remedy in the Contracting State responsible for the operations, much less a remedy capable of meeting the requirements of Article 13. The applicants had neither an adequate opportunity nor the necessary support, notably the assistance of an interpreter, to enable them to set out the reasons militating against their return, not to mention an examination, the rigour of which met the requirements of the Convention. The interveners argued that when the Contracting Parties to the Convention were involved in interceptions at sea resulting in a push-back, it was their responsibility to ensure that each of the persons concerned had an effective opportunity to challenge his or her return in the light of the rights guaranteed by the Convention and to obtain an examination of his or her application before the return was effected.", "The interveners considered that the lack of a remedy allowing for identification of the applicants and an individual assessment of their requests for protection and their needs constituted a serious omission, as did the lack of any follow-up investigation to ascertain the fate of the persons returned.", "195. The Columbia Law School Human Rights Clinic asserted that international human rights and refugee law required, firstly, that a State advise migrants of their right to access protection. Such advice was critical to effecting the State’s duty to identify those in need of international protection among interdicted persons. That requirement was heightened for those interdicted at sea because they were particularly unlikely to be familiar with local law and often lacked access to an interpreter or legal advice. Then, each person should be interviewed by the national authorities to obtain an individual decision on his or her application.", "B. The Court’s assessment", "1. Admissibility", "196. The Court reiterates that it joined the Government’s objection of failure to exhaust domestic remedies raised at the hearing before the Grand Chamber (see paragraph 62 above) to the examination on the merits of the complaints under Article 13. Furthermore, the Court considers that this part of the application raises complex issues of law and fact which cannot be determined without an examination of the merits. It follows that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) General principles", "197. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI).", "198. It results from the Court’s case-law that an applicant’s complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention “must imperatively be subject to close scrutiny by a ‘national authority’” (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005-III; see also Jabari, cited above, § 39). That principle has led the Court to rule that the notion of “effective remedy” within the meaning of Article 13 taken in conjunction with Article 3 requires, firstly, “independent and rigorous scrutiny” of any complaint made by a person in such a situation, where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3” and, secondly, “the possibility of suspending the implementation of the measure impugned” (see the above-cited judgments, § 460 and § 50 respectively).", "199. Moreover, in Čonka (cited above, §§ 79 et seq.) the Court stated, in relation to Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention, that a remedy did not meet the requirements of the former if it did not have suspensive effect. It pointed out in particular (§ 79):", "“The Court considers that the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible ... Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision ...”", "200. In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the Court has ruled that the suspensive effect should also apply to cases in which a State Party decides to remove an alien to a country where there are substantial grounds for believing that he or she faces a risk of that nature (see Gebremedhin [Geberamadhien] v. France, no. 25389/05, § 66, ECHR 2007-II, and M.S.S. v. Belgium and Greece, cited above, § 293).", "(b) Application to the instant case", "201. The Court has already concluded that the return of the applicants to Libya amounted to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4. The complaints lodged by the applicants on these points are therefore “arguable” for the purposes of Article 13.", "202. The Court has found that the applicants had no access to a procedure to identify them and to assess their personal circumstances before they were returned to Libya (see paragraph 185 above). The Government acknowledged that no provision was made for such procedures aboard the military ships onto which the applicants were made to embark. There were neither interpreters nor legal advisers among the personnel on board.", "203. The Court observes that the applicants alleged that they were given no information by the Italian military personnel, who had led them to believe that they were being taken to Italy and who had not informed them as to the procedure to be followed to avoid being returned to Libya.", "In so far as that circumstance is disputed by the Government, the Court attaches more weight to the applicants’ version because it is corroborated by a very large number of witness statements gathered by UNHCR, the CPT and Human Rights Watch.", "204. The Court has previously found that the lack of access to information is a major obstacle in accessing asylum procedures (see M.S.S. v. Belgium and Greece, cited above, § 304). It reiterates here the importance of guaranteeing anyone subject to a removal measure, the consequences of which are potentially irreversible, the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to substantiate their complaints.", "205. Having regard to the circumstances of the instant case, the Court considers that the applicants were deprived of any remedy which would have enabled them to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.", "206. As regards the Government’s argument that the applicants should have availed themselves of the opportunity of applying to the Italian criminal courts upon their arrival in Libya, the Court can only note that, even if such a remedy were accessible in practice, the requirements of Article 13 of the Convention are clearly not met by criminal proceedings brought against military personnel on board the army’s ships, in so far as that does not satisfy the criterion of suspensive effect enshrined in the above-cited Čonka judgment. The Court reiterates that the requirement flowing from Article 13 that execution of the impugned measure be stayed cannot be considered as a subsidiary measure (see M.S.S. v. Belgium and Greece, cited above, § 388).", "207. The Court concludes that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4 to the Convention. It follows that the applicants cannot be criticised for not having properly exhausted domestic remedies and that the Government’s preliminary objection (see paragraph 62 above) must be dismissed.", "VI. ARTICLES 46 AND 41 OF THE CONVENTION", "A. Article 46 of the Convention", "208. Article 46 provides:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "209. Under Article 46 of the Convention, the High Contracting Parties undertake to abide by the final judgment of the Court in the cases to which they are parties, the Committee of Ministers being responsible for supervising the execution of the judgments. This means that when the Court finds a violation, the respondent State is legally bound not only to pay the interested parties the sums awarded in just satisfaction under Article 41, but also to adopt the necessary general and/or, where applicable, individual measures. As the Court’s judgments are essentially declaratory in nature, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 46 of the Convention, provided that those means are compatible with the conclusions contained in the Court’s judgment. In certain particular situations, however, the Court may find it useful to indicate to the respondent State the type of measures that might be taken in order to put an end to the – often systemic – situation that gave rise to the finding of a violation (see, for example, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). Sometimes the nature of the violation found may be such as to leave no real choice as to the measures required (see Assanidze, cited above, § 198; Aleksanyan v. Russia, no. 46468/06, § 239, 22 December 2008; and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 85 and 88, ECHR 2009).", "210. In the instant case, the Court considers it necessary to indicate the individual measures required for the execution of the present judgment, without prejudice to the general measures required to prevent other similar violations in the future (see M.S.S. v. Belgium and Greece, cited above, § 400).", "211. The Court has found, inter alia, that the transfer of the applicants exposed them to the risk of being subjected to ill-treatment in Libya and of being arbitrarily repatriated to Somalia and Eritrea. Having regard to the circumstances of the case, the Court considers that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated.", "B. Article 41 of the Convention", "212. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "213. The applicants each claimed 15,000 euros (EUR) for the non ‑ pecuniary damage allegedly suffered.", "214. The Government opposed that claim, pointing out that the applicants’ lives had been saved by virtue of the intervention of the Italian authorities.", "215. The Court considers that the applicants must have experienced certain distress for which the Court’s findings of violations alone cannot constitute just satisfaction. Having regard to the nature of the violations found in the instant case, the Court considers it equitable to uphold the applicants’ claim and awards each of them EUR 15,000 in respect of non-pecuniary damage, to be held by the representatives in trust for the applicants.", "C. Costs and expenses", "216. The applicants also claimed EUR 1,575.74 for costs and expenses incurred before the Court.", "217. The Government challenged that claim.", "218. According to the Court’s established case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the instant case, and having regard to the documents available to it and to its case-law, the Court considers the total amount claimed in respect of the proceedings before the Court to be reasonable and awards that amount to the applicants.", "D. Default interest", "219. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Interception and push-back of the applicants to Libya", "9. The applicants, eleven Somali nationals and thirteen Eritrean nationals, were part of a group of about two hundred individuals who left Libya aboard three vessels with the aim of reaching the Italian coast.", "10. On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa (Agrigento), that is, within the Maltese Search and Rescue Region of responsibility, they were intercepted by three ships from the Italian Revenue Police ( Guardia di finanza ) and the Coastguard.", "11. The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them.", "All their personal effects, including documents confirming their identity, were confiscated by the military personnel.", "12. On arrival in the port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants’ version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships.", "13. At a press conference held on 7 May 2009, the Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded with Libya, and represented an important turning point in the fight against clandestine immigration. In a speech to the Senate on 25 May 2009, the Minister stated that between 6 and 10 May 2009 more than 471 irregular migrants had been intercepted on the high seas and transferred to Libya in accordance with those bilateral agreements. After explaining that the operations had been carried out in application of the principle of cooperation between States, the Minister stated that the push-back policy was very effective in combating illegal immigration. According to the Minister of the Interior, that policy discouraged criminal gangs involved in people smuggling and trafficking, helped save lives at sea and substantially reduced landings of irregular migrants along the Italian coast, which had decreased fivefold in May 2009 as compared with May 2008.", "14. During the course of 2009, Italy conducted nine operations on the high seas to intercept irregular migrants, in conformity with the bilateral agreements concluded with Libya.", "B. The applicants’ fate and their contacts with their representatives", "15. According to the information submitted to the Court by the applicants’ representatives, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 respectively on the list appended to this judgment), died in unknown circumstances after the events in question.", "16. After the application was lodged, the lawyers were able to maintain contact with the other applicants, who could be contacted by telephone and e-mail.", "Fourteen of the applicants (appearing on the list) were granted refugee status by the office in Tripoli of the Office of the United Nations High Commissioner for Refugees (UNHCR) between June and October 2009.", "17. Following the revolution which broke out in Libya in February 2011, forcing a large number of people to flee the country, the quality of contact between the applicants and their representatives deteriorated. The lawyers are currently in contact with six of the applicants:", "(i) Mr Ermias Berhane (no. 20 on the list) managed to land, unlawfully, on the Italian coast. On 25 May 2011 the Crotone Refugee Status Board granted him refugee status;", "(ii) Mr Habtom Tsegay (no. 19 on the list) is currently at Chucha detention camp in Tunisia. He plans to return to Italy;", "(iii) Mr Kiflom Tesfazion Kidan (no. 24 on the list) is resident in Malta;", "(iv) Mr Hayelom Mogos Kidane and Mr Waldu Habtemchael (nos. 23 and 13 on the list respectively) are resident in Switzerland, where they are awaiting a response to their request for international protection;", "(v) Mr Roberl Abzighi Yohannes (no. 21 on the list) is resident in Benin.", "IV. INTERNATIONAL MATERIAL CONCERNING INTERCEPTIONS ON THE HIGH SEAS CARRIED OUT BY ITALY AND THE SITUATION IN LIBYA", "A. Press Release of the United Nations High Commissioner for Refugees", "33. On 7 May 2009 UNHCR published the following press release:", "“UNHCR expressed deep concern Thursday over the fate of some 230 people who were rescued Wednesday by Italian patrol boats in the Maltese Search and Rescue Region (SAR) of responsibility and sent back to Libya without proper assessment of their possible protection needs. The rescue took place about 35 nautical miles south-east of the Italian island of Lampedusa, but within the Maltese SAR zone.", "The diversion to Libya followed a day of heated discussions between Maltese and Italian authorities about who was responsible for the rescue and disembarkation of the people on the three boats, which were in distress. Although closer to Lampedusa, the vessels were in the Maltese search and rescue area of responsibility.", "While no information is available on the nationalities of those aboard the vessels, it is likely that among them are people in need of international protection. In 2008, an estimated 75 percent of sea arrivals in Italy applied for asylum and 50 percent of them were granted some form of protection.", "‘I appeal to the Italian and Maltese authorities to continue to ensure that people rescued at sea and in need of international protection receive full access to territory and asylum procedures,’ UN High Commissioner for Refugees António Guterres said.", "The incident marks a significant shift in policies by the Italian government and is a source of very serious concern. UNHCR deeply regrets the lack of transparency which surrounded the event.", "‘We have been working closely with the Italian authorities in Lampedusa and elsewhere to ensure that people fleeing war and persecution are protected in line with the 1951 Geneva Convention,’ said Laurens Jolles, UNHCR’s Rome-based representative. ‘It is of fundamental importance that the international principle of non-refoulement continues to be fully respected.’", "In addition, Libya has not signed the 1951 UN Refugee Convention, and does not have a functioning national asylum system. UNHCR urges Italian authorities to reconsider their decision and to avoid repeating such measures.”", "B. Letter of 15 July 2009 from Mr Jacques Barrot, Vice-President of the European Commission", "34. On 15 July 2009 Mr Jacques Barrot wrote to the President of the European Parliament Committee on Civil Liberties, Justice and Home Affairs in response to a request for a legal opinion on the “return to Libya by sea of various groups of migrants by the Italian authorities”. In that letter, the Vice-President of the European Commission expressed himself as follows:", "“According to information available to the Commission, the migrants concerned were intercepted on the high seas.", "Two sets of Community rules must be examined concerning the situation of nationals of third countries or stateless persons attempting to enter, unlawfully, the territory of member States, some of whom might be in need of international protection.", "Firstly, the Community acquis in the field of asylum is intended to safeguard the right of asylum, as set forth in Article 18 of the Charter of Fundamental Rights of the European Union, and in accordance with the 1951 Geneva Convention relating to the Status of Refugees and with other relevant treaties. However, that acquis, including the 2005 Asylum Procedures Directive, applies only to asylum applications made on the territory of Member States, which includes the borders, transit areas and, in the context of maritime borders, territorial waters of Member States. Consequently, it is clear from a legal standpoint that the Community acquis in the field of asylum does not apply to situations on the high seas.", "Secondly, the Schengen Borders Code (SBC) requires that Member States conduct border surveillance to prevent, inter alia, unauthorised border crossings (Article 12 of EC Regulation No. 562/2006 (SBC)). However, that Community obligation must be fulfilled in compliance with the principle of non-refoulement and without prejudice to the rights of refugees and other people requesting international protection.", "The Commission is of the opinion that border surveillance activities conducted at sea, whether in territorial waters, the contiguous zone, the exclusive economic zone or on the high seas, fall within the scope of application of the SBC. In that connection, our preliminary legal analysis would suggest that the activities of the Italian border guards correspond to the notion of ‘border surveillance’ as set forth in Article 12 of the SBC, because they prevented the unauthorised crossing of an external sea border by the persons concerned and resulted in them being returned to the third country of departure. According to the case-law of the European Court of Justice, Community obligations must be applied in strict compliance with the fundamental rights forming part of the general principles of Community law. The Court has also clarified that the scope of application of those rights in the Community legal system must be determined taking account of the case-law of the European Court of Human Rights (ECHR).", "The principle of non-refoulement, as interpreted by the ECHR, essentially means that States must refrain from returning a person (directly or indirectly) to a place where he or she could face a real risk of being subjected to torture or to inhuman or degrading treatment. Furthermore, States may not send refugees back to territories where their life or freedom would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion. That obligation must be fulfilled when carrying out any border control in accordance with the SBC, including border surveillance activities on the high seas. The case-law of the ECHR provides that acts carried out on the high seas by a State vessel constitute cases of extraterritorial jurisdiction and may engage the responsibility of the State concerned.", "Having regard to the foregoing concerning the scope of Community jurisdiction, the Commission has invited the Italian authorities to provide it with additional information concerning the actual circumstances of the return of the persons concerned to Libya and the provisions put in place to ensure compliance with the principle of non-refoulement when implementing the bilateral agreement between the two countries.”", "C. Report of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading treatment or Punishment (CPT)", "35. From 27 to 31 July 2009 a delegation from the CPT visited Italy. During that visit the delegation looked into various issues arising from the new governmental policy of intercepting at sea, and returning to Libya, migrants approaching Italy’s southern maritime border. In particular, the delegation focused on the system of safeguards in place to ensure that no one was sent to a country where there were substantial grounds for believing that he or she would run a real risk of being subjected to torture or ill-treatment.", "36. In its report, made public on 28 April 2010, the CPT expressed the opinion that Italy’s policy of intercepting migrants at sea and obliging them to return to Libya or other non-European countries violated the principle of non-refoulement. The Committee emphasised that Italy was bound by the principle of non-refoulement wherever it exercised its jurisdiction, which included via its personnel and vessels engaged in border protection or rescue at sea, even when operating outside its territory. Moreover, all persons coming within Italy’s jurisdiction should be afforded an appropriate opportunity and facilities to seek international protection. The information available to the CPT indicated that no such opportunity or facilities were afforded to the migrants intercepted at sea by the Italian authorities during the period examined. On the contrary, the persons who were pushed back to Libya in the operations carried out from May to July 2009 were denied the right to obtain an individual assessment of their case and effective access to the refugee-protection system. In that connection, the CPT observed that persons surviving a sea voyage were particularly vulnerable and often not in a condition in which they should be expected to declare immediately their wish to apply for asylum.", "According to the CPT report, Libya could not be considered a safe country in terms of human rights and refugee law; the situation of persons arrested and detained in Libya, including that of migrants – who were also exposed to being deported to other countries – indicated that the persons pushed back to Libya were at risk of ill-treatment.", "D. The report by Human Rights Watch", "37. In a lengthy report published on 21 September 2009 and entitled “ Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers ”, Human Rights Watch condemned the Italian practice of intercepting boats full of migrants on the high seas and pushing them back to Libya without the required screening. That report was also based on the results of research published in a 2006 report entitled “ Libya: Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees ”.", "38. According to Human Rights Watch, Italian patrol boats towed migrant boats from international waters without determining whether some might contain refugees, sick or injured persons, pregnant women, unaccompanied children, or victims of trafficking or other forms of violence. The Italian authorities forced the boat migrants onto Libyan vessels or took the migrants directly back to Libya, where the authorities immediately detained them. Some of the operations were coordinated by Frontex.", "The report was based on interviews with ninety-one migrants, asylum-seekers, and refugees in Italy and Malta, conducted mostly in May 2009, and one telephone interview with a migrant detainee in Libya. Representatives of Human Rights Watch visited Libya in April and met with government officials, but the Libyan authorities would not permit the organisation to interview migrants privately. Moreover, the authorities did not allow Human Rights Watch to visit any of the many migrant detention centres in Libya, despite repeated requests.", "UNHCR now has access to Misrata Prison, at which clandestine migrants are generally held, and Libyan organisations provide humanitarian services there. However, there is no formal agreement, and thus no guaranteed access. Furthermore, Libya has no asylum law. The authorities make no distinction between refugees, asylum-seekers and other clandestine migrants.", "39. Human Rights Watch urged the Libyan government to improve the deplorable conditions of detention in Libya and to establish asylum procedures that conformed to international refugee standards. It also called on the Italian government, the European Union and Frontex to ensure access to asylum, including for those intercepted on the high seas, and to refrain from returning non-Libyans to Libya until the latter’s treatment of migrants, asylum-seekers and refugees fully met international standards.", "E. Amnesty International’s visit", "40. A team from Amnesty International carried out a fact-finding visit to Libya from 15 to 23 May 2009, the first such visit to the country by the organisation that the Libyan authorities had permitted since 2004.", "During that visit, Amnesty International visited Misrata Detention Centre, some 200 km from Tripoli, in which several hundred irregular migrants from other African countries were held in severely overcrowded conditions, and briefly interviewed several of those held there. Many had been detained since they were intercepted while seeking to make their way to Italy or other countries in southern Europe which look to Libya and other north African countries to staunch the flow of irregular migrants from sub-Saharan Africa to Europe.", "41. Amnesty International considered it possible that detainees at Misrata might include refugees fleeing persecution and stressed that, as Libya had no asylum procedure and was not a party to the Refugee Convention or its 1967 Protocol, foreigners, including those in need of international protection, might find themselves outside the protection of the law. There was also virtually no opportunity for detainees to lodge complaints of torture and other ill-treatment with the competent judicial authorities.", "In its meetings with Libyan government officials, Amnesty International expressed concern about the detention and alleged ill-treatment of hundreds, possibly thousands, of foreign nationals whom the authorities assumed to be irregular migrants and urged them to put in place proper procedures to identify asylum-seekers and refugees and afford them appropriate protection. Amnesty International also urged the Libyan authorities to cease forcible returns of foreign nationals to countries in which they were at risk of serious human rights violations and to find a better alternative to detention for those foreigners whom they were not able to return to their countries of origin for this reason. Some of the Eritrean nationals who comprised a sizeable proportion of the foreign nationals detained at Misrata told Amnesty International that they had been held there for two years.", "V. OTHER INTERNATIONAL MATERIAL DESCRIBING THE SITUATION IN LIBYA", "42. In addition to those cited above, numerous reports have been published by national and international organisations and by non-governmental organisations, condemning the conditions of detention and the living conditions of irregular migrants in Libya.", "The principal reports are:", "(i) Human Rights Watch, “Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees”, 13 September 2006;", "(ii) United Nations Human Rights Committee, “Concluding Observations. Libyan Arab Jamahiriya”, 15 November 2007;", "(iii) Amnesty International, “Libya – Amnesty International Report 2008”, 28 May 2008;", "(iv) Human Rights Watch, “Libya: Rights at Risk”, 2 September 2008;", "(v) US Department of State, “2010 Human Rights Report: Libya”, 8 April 2010.", "VI. INTERNATIONAL MATERIAL DESCRIBING THE SITUATION IN SOMALIA AND ERITREA", "43. The main international documents concerning the situation in Somalia were submitted in Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, §§ 80-195, 28 June 2011).", "44. Various reports condemn human rights violations perpetrated in Eritrea. They detail serious human rights violations by the Eritrean government, namely arbitrary arrests, torture, inhuman conditions of detention, forced labour and serious restrictions on the freedom of movement, expression and religion. Those documents also analyse the difficult situation of Eritreans who manage to escape to other countries such as Libya, Sudan, Egypt and Italy and are subsequently forcibly repatriated.", "The principal reports are:", "(i) UNHCR, “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea”, April 2009;", "(ii) Amnesty International, “Eritrea – Amnesty International Report 2009”, 28 May 2009;", "(iii) Human Rights Watch, “Service for Life – State Repression and Indefinite Conscription in Eritrea”, April 2009;", "(iv) Human Rights Watch, “Libya: Don’t Send Eritreans Back to Risk of Torture”, 15 January 2010;", "(v) Human Rights Watch, “World Report 2010: Eritrea”, January 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Italian Navigation Code", "18. Article 4 of the Navigation Code of 30 March 1942, as amended in 2002, provides as follows:", "“Italian vessels on the high seas and aircraft in airspace not subject to the sovereignty of a State are considered to be Italian territory.”", "B. Bilateral agreements between Italy and Libya", "19. On 29 December 2007 Italy and Libya signed a bilateral cooperation agreement in Tripoli to combat clandestine immigration. On the same date the two countries signed an Additional Protocol setting out the operational and technical arrangements for implementing the said Agreement. Under Article 2 of the Agreement:", "“Italy and the ‘Great Socialist People’s Libyan Arab Jamahiriya’ undertake to organise maritime patrols using six ships made available on a temporary basis by Italy. Mixed crews shall be present on ships, made up of Libyan personnel and Italian police officers, who shall provide training, guidance and technical assistance on the use and handling of the ships. Surveillance, search and rescue operations shall be conducted in the departure and transit areas of vessels used to transport clandestine immigrants, both in Libyan territorial waters and in international waters, in compliance with the international conventions in force and in accordance with the operational arrangements to be decided by the two countries.” (non-official translation)", "Furthermore, Italy undertook to cede to Libya, for a period of three years, three unmarked ships (Article 3 of the Agreement) and to encourage the bodies of the European Union to conclude a framework agreement between the European Union and Libya (Article 4 of the Agreement).", "Finally, under Article 7, Libya undertook to “coordinate its actions with those of the countries of origin in order to reduce clandestine immigration and ensure the repatriation of immigrants”.", "On 4 February 2009 Italy and Libya signed an Additional Protocol in Tripoli, intended to strengthen bilateral cooperation in the fight against clandestine immigration. That Protocol partially amended the Agreement of 29 December 2007, in particular through the inclusion of a new Article, which stated:", "“The two countries undertake to organise maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.", "Ownership of the ships offered by Italy, within the meaning of Article 3 of the Agreement of 29 December 2007, shall be definitively ceded to Libya.", "The two countries undertake to repatriate clandestine immigrants and to conclude agreements with the countries of origin in order to limit clandestine immigration.” (non-official translation)", "20. On 30 August 2008 in Benghazi, Italy and Libya signed the Treaty on Friendship, Partnership and Cooperation, Article 19 of which makes provision for efforts to prevent clandestine immigration in the countries of origin of migratory flows. Under Article 6 of that Treaty, Italy and Libya undertook to act in accordance with the principles of the United Nations Charter and the Universal Declaration of Human Rights.", "21. According to a statement by the Italian Minister of Defence, the agreements between Italy and Libya were suspended following the events of 2011.", "III. RELEVANT ASPECTS OF INTERNATIONAL AND EUROPEAN LAW", "A. 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”)", "22. Italy has ratified the Geneva Convention, which defines the situations in which a State must grant refugee status to persons who apply for it, and the rights and responsibilities of those persons. Articles 1 and 33 § 1 of the Geneva Convention provide:", "Article 1", "“... For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”", "Article 33 § 1", "“No Contracting State shall expel or return (‘ refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”", "23. In its Note on International Protection of 13 September 2001 (A/AC.96/951, § 16), UNHCR, which has the task of monitoring the manner in which the States Parties apply the Geneva Convention, indicated that the principle of non-refoulement laid down in Article 33, was:", "“... a cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”", "B. 1982 United Nations Convention on the Law of the Sea (“the Montego Bay Convention”)", "24. The relevant Articles of the Montego Bay Convention provide:", "Article 92 Status of ships", "“1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in ... this Convention, shall be subject to its exclusive jurisdiction on the high seas ...”", "Article 94 Duties of the flag State", "“1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”", "Article 98 Duty to render assistance", "“1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:", "(a) to render assistance to any person found at sea in danger of being lost;", "(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;", "...”", "C. 1979 International Convention on Maritime Search and Rescue (“the SAR Convention”) (amended in 2004)", "25. Sub-paragraph 3.1.9 of the Annex to the SAR Convention provides:", "“Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ [ sic ] intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization [International Maritime Organization]. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.”", "D. Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime (“the Palermo Protocol”) (2000)", "26. Article 19 § 1 of the Palermo Protocol provides:", "“Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.”", "E. Resolution 1821 (2011) of the Parliamentary Assembly of the Council of Europe", "27. On 21 June 2011 the Parliamentary Assembly of the Council of Europe adopted the Resolution on the interception and rescue at sea of asylum-seekers, refugees and irregular migrants, which provides as follows:", "“1. The surveillance of Europe’s southern borders has become a regional priority. The European continent is having to cope with the relatively large-scale arrival of migratory flows by sea from Africa, reaching Europe mainly through Italy, Malta, Spain, Greece and Cyprus.", "2. Migrants, refugees, asylum-seekers and others risk their lives to reach Europe’s southern borders, mostly in unseaworthy vessels. These journeys, always undertaken illicitly, mostly on board flagless vessels, putting them at risk of falling into the hands of migrant smuggling and trafficking rings, reflect the desperation of the passengers, who have no legal means and, above all, no safer means of reaching Europe.", "3. Although the number of arrivals by sea has fallen drastically in recent years, resulting in a shift of migratory routes (particularly towards the land border between Turkey and Greece), the Parliamentary Assembly, recalling, inter alia, its Resolution 1637 (2008) on Europe’s boat people: mixed migration flows by sea into southern Europe, once again expresses its deep concern over the measures taken to deal with the arrival by sea of these mixed migratory flows. Many people in distress at sea have been rescued and many attempting to reach Europe have been pushed back, but the list of fatal incidents – as predictable as they are tragic – is a long one and it is currently getting longer on an almost daily basis.", "4. Furthermore, recent arrivals in Italy and Malta following the turmoil in North Africa confirm that Europe must always be ready to face the possible large-scale arrival of irregular migrants, asylum-seekers and refugees on its southern shores.", "5. The Assembly notes that measures to manage these maritime arrivals raise numerous problems, of which five are particularly worrying:", "5.1. despite several relevant international instruments which are applicable in this area and which satisfactorily set out the rights and obligations of States and individuals applicable in this area, interpretations of their content appear to differ. Some States do not agree on the nature and extent of their responsibilities in specific situations and some States also call into question the application of the principle of non-refoulement on the high seas;", "5.2. while the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a ‘place of safety’, the notion of ‘place of safety’ does not appear to be interpreted in the same way by all member States. Yet it is clear that the notion of ‘place of safety’ should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights;", "5.3. divergences of this kind directly endanger the lives of the people to be rescued, in particular by delaying or preventing rescue measures, and they are likely to dissuade seafarers from rescuing people in distress at sea. Furthermore, they could result in a violation of the principle of non-refoulement in respect of a number of persons, including some in need of international protection;", "5.4. although the European Agency for the Management of Operational Cooperation at the External Borders of the member States of the European Union (Frontex) plays an ever increasing role in interception at sea, there are inadequate guarantees of respect for human rights and obligations arising under international and European Union law, in the context of the joint operations it coordinates;", "5.5. finally, these sea arrivals place a disproportionate burden on the States located on the southern borders of the European Union. The goal of responsibilities being shared more fairly and greater solidarity in the migration sphere between European States is far from being attained.", "6. The situation is rendered more complex by the fact that these migratory flows are of a mixed nature and therefore call for specialised and tailored protection-sensitive responses in keeping with the status of those rescued. To respond to sea arrivals adequately and in line with the relevant international standards, the States must take account of this aspect in their migration management policies and activities.", "7. The Assembly reminds member States of their obligations under international law, including the European Convention on Human Rights (ETS No. 5), the United Nations Convention on the Law of the Sea of 1982 and the 1951 Geneva Convention relating to the Status of Refugees, and particularly reminds them of the principle of non-refoulement and the right to seek asylum. The Assembly also reiterates the obligations of the States Parties to the 1974 International Convention for the Safety of Life at Sea and the 1979 International Convention on Maritime Search and Rescue.", "8. Finally and above all, the Assembly reminds member States that they have both a moral and legal obligation to save persons in distress at sea without the slightest delay, and unequivocally reiterates the interpretation given by the Office of the United Nations High Commissioner for Refugees (UNHCR), which states that the principle of non-refoulement is equally applicable on the high seas. The high seas are not an area where States are exempt from their legal obligations, including those emerging from international human rights law and international refugee law.", "9. Accordingly, the Assembly calls on member States, when conducting maritime border surveillance operations, whether in the context of preventing smuggling and trafficking in human beings or in connection with border management, be it in the exercise of de jure or de facto jurisdiction, to:", "9.1. fulfil without exception and without delay their obligation to save people in distress at sea;", "9.2. ensure that their border management policies and activities, including interception measures, recognise the mixed make-up of flows of individuals attempting to cross maritime borders;", "9.3. guarantee for all intercepted persons humane treatment and systematic respect for their human rights, including the principle of non-refoulement, regardless of whether interception measures are implemented within their own territorial waters, those of another State on the basis of an ad hoc bilateral agreement, or on the high seas;", "9.4. refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgments of the European Court of Human Rights;", "9.5. carry out as a priority action the swift disembarkation of rescued persons to a ‘place of safety’ and interpret a ‘place of safety’ as meaning a place which can meet the immediate needs of those disembarked and in no way jeopardises their fundamental rights, since the notion of ‘safety’ extends beyond mere protection from physical danger and must also take into account the fundamental rights dimension of the proposed place of disembarkation;", "9.6. guarantee access to a fair and effective asylum procedure for those intercepted who are in need of international protection;", "9.7. guarantee access to protection and assistance, including to asylum procedures, for those intercepted who are victims of human trafficking or at risk of being trafficked;", "9.8. ensure that the placement in a detention facility of those intercepted – always excluding minors and vulnerable categories – regardless of their status, is authorised by the judicial authorities and occurs only where necessary and on grounds prescribed by law, that there is no other suitable alternative and that such placement conforms to the minimum standards and principles set forth in Assembly Resolution 1707 (2010) on the detention of asylum-seekers and irregular migrants in Europe;", "9.9. suspend any bilateral agreements they may have concluded with third States if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement, and conclude new bilateral agreements specifically containing such human rights guarantees and measures for their regular and effective monitoring;", "9.10. sign and ratify, if they have not already done so, the aforementioned relevant international instruments and take account of the International Maritime Organization (IMO) Guidelines on the Treatment of Persons Rescued at Sea;", "9.11. sign and ratify, if they have not already done so, the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the so-called ‘Palermo Protocols’ to the United Nations Convention against Transnational Organised Crime (2000);", "9.12. ensure that maritime border surveillance operations and border control measures do not affect the specific protection afforded under international law to vulnerable categories such as refugees, stateless persons, women and unaccompanied children, migrants, victims of trafficking or at risk of being trafficked, or victims of torture and trauma.", "10. The Assembly is concerned about the lack of clarity regarding the respective responsibilities of European Union States and Frontex and the absence of adequate guarantees for the respect of fundamental rights and international standards in the framework of joint operations coordinated by that agency. While the Assembly welcomes the proposals presented by the European Commission to amend the rules governing that agency, with a view to strengthening guarantees of full respect for fundamental rights, it considers them inadequate and would like the European Parliament to be entrusted with the democratic supervision of the agency’s activities, particularly where respect for fundamental rights is concerned.", "11. The Assembly also considers it essential that efforts be made to remedy the prime causes prompting desperate individuals to risk their lives by boarding boats bound for Europe. The Assembly calls on all member States to step up their efforts to promote peace, the rule of law and prosperity in the countries of origin of potential immigrants and asylum-seekers.", "12. Finally, in view of the serious challenges posed to coastal States by the irregular arrival by sea of mixed flows of individuals, the Assembly calls on the international community, particularly the IMO, the UNHCR, the International Organization for Migration (IOM), the Council of Europe and the European Union (including Frontex and the European Asylum Support Office) to:", "12.1. provide any assistance required to those States in a spirit of solidarity and sharing of responsibilities;", "12.2. under the auspices of the IMO, make concerted efforts to ensure a consistent and harmonised approach to international maritime law through, inter alia, agreement on the definition and content of the key terms and norms;", "12.3. establish an inter-agency group with the aim of studying and resolving the main problems in the area of maritime interception, including the five problems identified in the present resolution, setting clear policy priorities, providing guidance to States and other relevant actors, and monitoring and evaluating the use of maritime interception measures. The group should be made up of members of the IMO, the UNHCR, the IOM, the Council of Europe, Frontex and the European Asylum Support Office.”", "F. European Union law", "1. Charter of Fundamental Rights of the European Union (2000)", "28. Article 19 of the Charter provides:", "Protection in the event of removal, expulsion or extradition", "“1. Collective expulsions are prohibited.", "2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”", "2. 1985 Schengen Agreement", "29. Article 17 of the Agreement provides:", "“In regard to the movement of persons, the Parties shall endeavour to abolish the controls at the common frontiers and transfer them to their external frontiers. To that end, they shall endeavour to harmonise in advance, where necessary, the laws and administrative provisions concerning the prohibitions and restrictions which form the basis for the controls and to take complementary measures to safeguard security and combat illegal immigration by nationals of States that are not members of the European Communities.”", "3. Council Regulation (EC) no. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)", "30. Regulation (EC) No. 2007/2004 contains the following provisions:", "“(1) Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the European Union and a fundamental component of an area of freedom, security and justice. To this end, the establishment of common rules on standards and procedures for the control of external borders is foreseen.", "(2) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member States.", "(3) Taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management should therefore be established in the shape of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as the Agency).", "(4) The responsibility for the control and surveillance of external borders lies with the Member States. The Agency should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member States’ actions in the implementation of those measures.", "(5) Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position. Accordingly, there is a need for promoting solidarity between Member States in the field of external border management. The establishment of the Agency, assisting Member States with implementing the operational aspects of external border management, including return of third-country nationals illegally present in the Member States, constitutes an important step in this direction.”", "4. Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)", "31. Article 3 of Regulation (EC) No. 562/2006 provides:", "“This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:", "(a) the rights of persons enjoying the Community right of free movement;", "(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement .”", "5. Council Decision of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (2010/252/EU)", "32. The Annex to the Council Decision of 26 April 2010 states:", "“Rules for sea border operations coordinated by the Agency [Frontex]", "1. General principles", "1.1. Measures taken for the purpose of the surveillance operation shall be conducted in accordance with fundamental rights and in a way that does not put at risk the safety of the persons intercepted or rescued as well as of the participating units.", "1.2. No person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. Without prejudice to paragraph 1.1, the persons intercepted or rescued shall be informed in an appropriate way so that they can express any reasons for believing that disembarkation in the proposed place would be in breach of the principle of non-refoulement.", "1.3. The special needs of children, victims of trafficking, persons in need of urgent medical assistance, persons in need of international protection and other persons in a particularly vulnerable situation shall be considered throughout all the operation.", "1.4. Member States shall ensure that border guards participating in the surveillance operation are trained with regard to relevant provisions of human rights and refugee law, and are familiar with the international regime on search and rescue.”", "THE LAW", "I. PRELIMINARY ISSUES RAISED BY THE GOVERNMENT", "A. Validity of the powers of attorney and further consideration of the application", "1. Issues raised by the Government", "45. The Government challenged the validity in various respects of the powers of attorney provided by the applicants’ representatives. Firstly, they alleged that the majority of the powers of attorney contained formal defects, namely:", "(i) no particulars regarding date and place and, in some cases, the fact that the date and the place appeared to have been written by the same person;", "(ii) no reference to the application number;", "(iii) the fact that the applicants’ identities were indicated solely by family name, first name, nationality, an illegible signature and a fingerprint, which was often partial or difficult to make out;", "(iv) no details of the applicants’ dates of birth.", "46. The Government then submitted that the application contained no information as to the circumstances in which the powers of attorney had been drafted, thus casting doubt on their validity, nor any information concerning steps taken by the applicants’ representatives to establish the identity of their clients. The Government also challenged the quality of existing contact between the applicants and their representatives. They alleged, in particular, that electronic messages sent by the applicants after their transfer to Libya did not bear signatures that could be compared against those appearing on the powers of attorney. In the Government’s view, the problems encountered by the lawyers in establishing and maintaining contact with the applicants precluded an adversarial examination of the case.", "47. That being the case, because it was impossible to identify the applicants and because the applicants were not “participating in the case in person”, the Court should cease its examination of the case. Referring to the case of Hussun and Others v. Italy ((striking out), nos. 10171/05, 10601/05, 11593/05 and 17165/05, 19 January 2010), the Government requested that the Court strike the case out of the list.", "2. The applicants’ submissions", "48. The applicants’ representatives argued that the powers of attorney were valid. They asserted, firstly, that the formal defects alleged by the Government were not such as to render null and void the authority granted to them by their clients.", "49. As regards the circumstances in which the powers of attorney had been drafted, they argued that the authorities had been drawn up by the applicants upon their arrival in Libya, with the assistance of members of humanitarian organisations operating in the various detention centres. The latter subsequently took care of contacting the applicants’ representatives and forwarding the powers of attorney to them for them to sign and accept the authority granted.", "50. They argued that the problems relating to identification of the parties concerned were the direct result of the subject matter of the application, namely a collective push-back operation in which no steps had been taken beforehand to identify the clandestine migrants. Whatever the circumstances, the lawyers drew the Court’s attention to the fact that a significant number of the applicants had been identified by the UNHCR office in Tripoli following their arrival in Libya.", "51. Lastly, the lawyers stated that they had remained in contact with some of the applicants, who could be contacted by telephone and by e-mail. They pointed out the serious difficulties they faced in maintaining contact with the applicants, in particular because of the violence which had been rife in Libya since February 2011.", "3. The Court’s assessment", "52. The Court reiterates at the outset that the representative of the applicant must produce “a power of attorney or written authority to act” (Rule 45 § 3 of the Rules of Court). Therefore, a simple written authority would be valid for the purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant’s understanding and consent (see Velikova v. Bulgaria, no. 41488/98, § 50, ECHR 2000-VI).", "53. Furthermore, neither the Convention nor the Rules of Court impose any specific requirements on the manner in which the authority form must be drafted or require any form of certification of that document by any national authority. What is important for the Court is that the form of authority should clearly indicate that the applicant has entrusted his or her representation before the Court to a representative and that the representative has accepted that commission (see Ryabov v. Russia, no. 3896/04, §§ 40 and 43, 31 January 2008).", "54. In the instant case, the Court observes that all the powers of attorney included in the case file are signed and bear fingerprints. Moreover, the applicants’ lawyers have provided detailed information throughout the proceedings concerning the facts and the fate of the applicants with whom they have been able to maintain contact. There is nothing in the case file that could call into question the lawyers’ account or the exchange of information with the Court (see, conversely, Hussun and Others, cited above, §§ 43 ‑ 50).", "55. In the circumstances, the Court has no reason to doubt the validity of the powers of attorney. Consequently, it rejects the Government’s objection.", "56. Furthermore, the Court notes that, according to the information provided by the lawyers, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 on the list respectively), died shortly after the application was lodged (see paragraph 15 above).", "57. It points out that the practice of the Court is to strike applications out of the list when an applicant dies during the course of the proceedings and no heir or close relative wishes to pursue the case (see, among other authorities, Scherer v. Switzerland, 25 March 1994, §§ 31-32, Series A no. 287; Öhlinger v. Austria, no. 21444/93, Commission’s report of 14 January 1997, § 15, unreported; Thévenon v. France (dec.), no. 2476/02, ECHR 2006-III; and Léger v. France (striking out) [GC], no. 19324/02, § 44, 30 March 2009).", "58. In the light of the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application as regards the deceased (Article 31 § 1 (c) of the Convention). Furthermore, it points out that the complaints initially lodged by Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman are identical to those submitted by the other applicants, on which it will express its opinion below. In those circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols which, in accordance with Article 37 § 1 in fine, would require continuation of the examination of the deceased applicants’ application.", "59. In conclusion, the Court decides to strike the case out of the list in so far as it concerns Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman, and to pursue the examination of the remainder of the application.", "B. Exhaustion of domestic remedies", "60. At the hearing before the Grand Chamber, the Government submitted that the application was inadmissible because domestic remedies had not been exhausted. They claimed that the applicants had failed to apply to the Italian courts to seek acknowledgment of and compensation for the alleged violations of the Convention.", "61. In the Government’s view, the applicants, now free to move around and in a position to contact their lawyers in the context of the proceedings before the Court, should have lodged proceedings with the Italian criminal courts to complain of violations of domestic and international law by the military personnel involved in their removal. Criminal proceedings were currently under way in similar cases and that type of remedy was “effective”.", "62. The Court notes that the applicants also complained that they were not afforded a remedy satisfying the requirements of Article 13 of the Convention. It considers that there is a close connection between the Government’s argument on this point and the merits of the complaints made by the applicants under Article 13 of the Convention. It therefore takes the view that it is necessary to join this objection to the merits of the complaints lodged under Article 13 of the Convention and to examine the application in this context (see paragraph 207 below).", "II. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION", "63. Article 1 of the Convention provides:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "A. The parties’ submissions", "1. The Government", "64. The Government acknowledged that the events in question had taken place on board Italian military ships. However, they denied that the Italian authorities had exercised “absolute and exclusive control” over the applicants.", "65. They submitted that the vessels carrying the applicants had been intercepted in the context of the rescue on the high seas of persons in distress – which is an obligation imposed by international law, namely, the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) – and could in no circumstances be described as a maritime police operation.", "The Italian ships had confined themselves to intervening to assist the three vessels in distress and ensuring the safety of the persons on board. They had then accompanied the intercepted migrants to Libya in accordance with the bilateral agreements of 2007 and 2009. The Government argued that the obligation to save human lives on the high seas, as required under the Montego Bay Convention, did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.", "66. As regards the applicants’ “rescue”, which in total had lasted no more than ten hours, the authorities had provided the parties concerned with the necessary humanitarian and medical assistance and had in no circumstances used violence; they had not boarded the boats and had not used weapons. The Government concluded that the instant application differed from the case of Medvedyev and Others v. France ([GC], no. 3394/03, ECHR 2010), in which the Court had affirmed that the applicants fell under French jurisdiction having regard to the full and exclusive nature of the control exercised by France over a vessel on the high seas and over its crew.", "2. The applicants", "67. The applicants submitted that there was no question, in the instant case, but that Italy had jurisdiction. As soon as they had boarded the Italian ships, they had been under the exclusive control of Italy, which had therefore been bound to fulfil all the obligations arising out of the Convention and the Protocols thereto.", "They pointed out that Article 4 of the Italian Navigation Code expressly provided that vessels flying the Italian flag fell within Italian jurisdiction, even when sailing outside territorial waters.", "3. Third-party interveners", "68. The third-party interveners considered that, in accordance with the principles of customary international law and the Court’s case-law, the obligation on States not to return asylum-seekers, even “potential” asylum-seekers, and to ensure that they had access to a fair hearing were extraterritorial in their scope.", "69. Under international law concerning the protection of refugees, the decisive test in establishing the responsibility of a State was not whether the person being returned was on the territory of a State but whether that person fell under the effective control and authority of that State.", "The third-party interveners referred to the Court’s case-law concerning Article 1 of the Convention and the extraterritorial scope of the notion of “jurisdiction”, and to the conclusions of other international authorities. They stressed the importance of avoiding double standards in the field of safeguarding human rights and ensuring that a State was not authorised to commit acts outside its territory which would never be accepted within that territory.", "B. The Court’s assessment", "1. General principles governing jurisdiction within the meaning of Article 1 of the Convention", "70. Under Article 1 of the Convention, the undertaking of the Contracting States is to “secure” (“ reconnaître ” in French) to everyone within their “jurisdiction” the rights and freedoms defined in Section I of the Convention (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.), [GC], no. 52207/99, § 66, ECHR 2001-XII). The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).", "71. The jurisdiction of a State, within the meaning of Article 1, is essentially territorial (see Banković and Others, cited above, §§ 61 and 67, and Ilaşcu and Others, cited above, § 312). It is presumed to be exercised normally throughout the State’s territory (loc. cit., and see Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II).", "72. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç and Others, cited above, § 67; and Ilaşcu and Others, cited above, § 314).", "73. In its first judgment in Loizidou v. Turkey, the Court ruled that bearing in mind the object and purpose of the Convention the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory ((preliminary objections), 23 March 1995, § 62, Series A no. 310), which is however ruled out when, as in Banković and Others, only an instantaneous extraterritorial act is in issue, since the wording of Article 1 does not accommodate such an approach to “jurisdiction” (cited above, § 75). In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, ECHR 2011, and Medvedyev and Others, cited above, § 67).", "74. Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be “divided and tailored” (see Al ‑ Skeini and Others, cited above, § 136-37; compare Banković and Others, cited above, § 75).", "75. There are other instances in the Court’s case-law of the extraterritorial exercise of jurisdiction by a State in cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, the Court, basing itself on customary international law and treaty provisions, has recognised the extraterritorial exercise of jurisdiction by the relevant State (see Banković and Others, cited above, § 73, and Medvedyev and Others, cited above, § 65).", "2. Application to the instant case", "76. It is not disputed before the Court that the events in issue occurred on the high seas, on board military ships flying the Italian flag. The Government acknowledge, furthermore, that the Revenue Police and Coastguard ships onto which the applicants were embarked were fully within Italian jurisdiction.", "77. The Court observes that, by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principle of international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State (see paragraph 75 above). Where there is control over another, this is de jure control exercised by the State in question over the individuals concerned.", "78. The Court observes, furthermore, that the above-mentioned principle is enshrined in domestic law in Article 4 of the Italian Navigation Code and is not disputed by the Government (see paragraph 18 above). It concludes that the instant case does indeed constitute a case of extraterritorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention.", "79. Moreover, Italy cannot circumvent its “jurisdiction” under the Convention by describing the events in issue as rescue operations on the high seas. In particular, the Court cannot subscribe to the Government’s argument that Italy was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned at the material time.", "80. In that connection, it is sufficient to observe that in Medvedyev and Others, cited above, the events in issue took place on board the Winner, a vessel flying the flag of a third State but whose crew had been placed under the control of French military personnel. In the particular circumstances of that case, the Court examined the nature and scope of the actions carried out by the French officials in order to ascertain whether there was at least de facto continued and uninterrupted control exercised by France over the Winner and its crew (ibid., §§ 66-67).", "81. The Court observes that in the instant case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.", "82. Accordingly, the events giving rise to the alleged violations fall within Italy’s “jurisdiction” within the meaning of Article 1 of the Convention.", "III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "83. The applicants complained that they had been exposed to the risk of torture or inhuman or degrading treatment in Libya and in their respective countries of origin, namely Eritrea and Somalia, as a result of having been returned. They relied on Article 3 of the Convention which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "84. The Court observes that two different aspects of Article 3 of the Convention are in issue and must be examined separately: firstly, the risk that the applicants would suffer inhuman and degrading treatment in Libya; and secondly, the danger of being returned to their respective countries of origin.", "A. Alleged violation of Article 3 of the Convention on account of the applicants having been exposed to the risk of inhuman and degrading treatment in Libya", "1. The parties’ submissions", "(a) The applicants", "85. The applicants alleged that they had been the victims of an arbitrary refoulement, in violation of the Convention. They stated that they had not been afforded the opportunity to challenge their return to Libya and to request international protection from the Italian authorities.", "86. Having been given no information concerning their true destination, the applicants had been convinced, throughout the voyage aboard the Italian ships, that they were being taken to Italy. They claimed to have been the victims of a real “deception” in that regard on the part of the Italian authorities.", "87. No procedure to identify the intercepted migrants and to gather information as to their personal circumstances had been possible aboard the ships. In those circumstances, no formal request for asylum could have been made. Nevertheless, upon approaching the Libyan coast, the applicants and a substantial number of other migrants had asked the Italian military personnel not to disembark them at the port of Tripoli, from where they had just fled, and to take them to Italy.", "The applicants affirmed that they had quite clearly expressed their wish not to be handed over to the Libyan authorities. They challenged the Government’s contention that such a request could not be considered to be a request for international protection.", "88. The applicants then argued that they had been returned to a country where there were sufficient reasons to believe that they would be subjected to treatment in breach of the Convention. Many international sources had reported the inhuman and degrading conditions in which irregular migrants, notably of Somali and Eritrean origin, were held in Libya and the precarious living conditions experienced by clandestine migrants in that country.", "In that connection, the applicants referred to the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) report of April 2010 and the texts and documents produced by the third parties concerning the situation in Libya.", "89. In their view, Italy could not have been unaware of that increasingly worsening situation when it signed the bilateral agreements with Libya and carried out the push-back operations in issue.", "90. Furthermore, the applicants’ fears and concerns had proved to be well-founded. They had all reported inhuman and degrading conditions of detention and, following their release, precarious living conditions associated with their status as illegal immigrants.", "91. The applicants argued that the decision to push back to Libya clandestine migrants intercepted on the high seas was a genuine political choice on the part of Italy, aimed at giving the police the main responsibility for controlling illegal immigration, in disregard of the protection of the fundamental rights of the people concerned.", "(b) The Government", "92. The Government argued, firstly, that the applicants had not adequately proved that they had been subjected to treatment allegedly in contravention of the Convention. They could not therefore be considered to be “victims” within the meaning of Article 34 of the Convention.", "93. They went on to argue that the applicants had been transferred to Libya in accordance with the bilateral agreements signed by Italy and Libya in 2007 and 2009. Those bilateral agreements were a response to increasing migratory flows between Africa and Europe and had been signed in a spirit of cooperation between two countries engaged in combating clandestine immigration.", "94. The bodies of the European Union had, on numerous occasions, encouraged cooperation between Mediterranean countries in controlling migration and combating crimes associated with clandestine immigration. The Government referred, in particular, to European Parliament Resolution No. 2006/2250 and to the European Pact on Immigration and Asylum adopted by the Council of the European Union on 24 September 2008, which affirmed the need for European Union States to cooperate and establish partnerships with countries of origin and transit in order to strengthen control of the European Union’s external borders and to combat illegal immigration.", "95. The Government submitted that the events of 6 May 2009, which gave rise to this application, had been conducted in the context of a rescue operation on the high seas in accordance with international law. They stated that Italian military ships had intervened in a manner consistent with the Montego Bay Convention and the International Convention on Maritime Search and Rescue (“the SAR Convention”) in dealing with the situation of immediate danger that the vessels had been in and saving the lives of the applicants and the other migrants.", "In the Government’s view, the legal system prevailing on the high seas was characterised by the principle of freedom of navigation. In that context, it was not necessary to identify the parties concerned. The Italian authorities had merely provided the necessary humanitarian assistance. Identity checks of the applicants had been kept to a minimum because no maritime police operation on board the ships had been envisaged.", "96. At no time during their transfer to Libya had the applicants expressed their intention to apply for political asylum or any other form of international protection. The Government argued that a request made by the applicants not to be handed over to the Libyan authorities could not be interpreted as a request for asylum.", "In that regard they stated that, had the parties concerned asked for asylum, they would have been taken to Italian territory, as had been the case in other high-seas operations conducted in 2009.", "97. The Government also argued that Libya was a safe host country. In support of that statement, they referred to the fact that Libya had ratified the United Nations International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. They also referred to Libya’s membership of the International Organization for Migration (IOM).", "Though not a party to the United Nations Convention relating to the Status of Refugees, Libya had nevertheless authorised UNHCR and the IOM to open offices in Tripoli, thus allowing numerous applicants to be granted refugee status and guaranteed international protection.", "98. The Government drew the Court’s attention to the fact that, when Libya ratified the 2008 Treaty on Friendship, Partnership and Cooperation, it expressly undertook to comply with the principles of the United Nations Charter and the Universal Declaration of Human Rights. Italy had had no reason to believe that Libya would evade its commitments.", "That circumstance, and the fact that the UNHCR and IOM offices were present and active in Tripoli, fully justified Italy’s conviction that Libya was a safe host country for migrants intercepted on the high seas. Moreover, the Government were of the view that recognition of the refugee status granted by UNHCR to numerous applicants, including some of the applicants in this case, was unequivocal proof that the situation in Libya at the material time was in compliance with international human rights standards.", "99. The Government acknowledged that the situation in Libya had deteriorated after April 2010, when the authorities closed the UNHCR office in Tripoli, and had definitively broken down following the events at the beginning of 2011, but they asserted that Italy had immediately ceased pushing back migrants to Libya and had changed the arrangements for the rescue of migrants on the high seas by henceforth authorising entry onto Italian territory.", "100. The Government disputed the existence of a “Government practice” which consisted, according to the applicants, of effecting arbitrary transfers to Libya. In that connection, they described the application as a “political and ideological diatribe” against the action of the Italian authorities. The Government requested the Court to examine only the events of 6 May 2009 and not call into question Italy’s powers as regards immigration control, an area which they considered to be extremely sensitive and complex.", "(c) Third-party interveners", "101. Relying on the statements of numerous direct witnesses, Human Rights Watch and UNHCR condemned Italy’s forced return of irregular migrants to Libya. During 2009 Italy had carried out nine operations on the high seas, returning 834 Somali, Eritrean and Nigerian nationals to Libya.", "102. Human Rights Watch had denounced the situation in Libya on several occasions, notably in its reports of 2006 and 2009. The organisation stated that, because there was no national asylum system in Libya, irregular migrants were systematically arrested and often subjected to torture and physical violence, including rape. In breach of United Nations guidelines on detention, migrants were often detained indefinitely and with no judicial supervision. Furthermore, conditions of detention were inhuman. Migrants were tortured and no medical assistance was provided in the various camps throughout the country. They might at any time be returned to their countries of origin or abandoned in the desert, where certain death awaited them.", "103. The AIRE Centre, Amnesty International and the International Federation for Human Rights (FIDH) observed that reports from reliable sources over several years had continued to demonstrate that the human rights situation in Libya was disastrous, notably for refugees, asylum-seekers and migrants, and especially for those from particular regions of Africa, such as Eritrea and Somalia.", "The three intervening parties were of the view that there was a “duty to investigate” where there was credible information from reliable sources that detention or living conditions in the receiving State were incompatible with Article 3 of the Convention.", "In accordance with the principle of pacta sunt servanda, a State could not evade its obligations under the Convention by relying on commitments arising out of bilateral or multilateral agreements concerning the fight against clandestine immigration.", "104. UNHCR stated that while the Italian authorities had not provided detailed information concerning the push-back operations, several witnesses interviewed by the Office of the High Commissioner had given an account similar to that of the applicants. In particular, they had reported that, in order to encourage people to board the Italian ships, Italian military personnel had led them to believe that they were being taken to Italy. Various witnesses stated that they had been handcuffed and had been subjected to violence during their transfer to Libyan territory and on arrival at the detention centre at which they were to be held. Furthermore, the Italian authorities had confiscated the migrants’ personal effects, including the UNHCR certificates attesting to their status as refugees. Various witnesses had also confirmed that they had asked for protection and that they had specifically informed the Italian authorities of that fact during the operations.", "105. UNHCR affirmed that at least five of the migrants returned to Libya who had subsequently managed to return to Italy, including Mr Ermias Berhane, had been granted refugee status in Italy. Moreover, in 2009 the UNHCR office in Tripoli had granted refugee status to seventy-three people returned by Italy, including fourteen of the applicants. That proved that the operations conducted by Italy on the high seas involved a genuine risk of the arbitrary return of persons in need of international protection.", "106. UNHCR then submitted that none of Italy’s arguments justifying the returns was acceptable. Neither the principle of cooperation between States to combat illegal trafficking in migrants, nor the provisions of international law of the sea concerning the safety of human life at sea, exempted States from their obligation to comply with the principles of international law.", "107. Libya, a transit and receiving State for migratory flows from Asia and Africa, provided asylum-seekers with no form of protection. Though signatory to certain international human rights instruments, it barely complied with its obligations. In the absence of any national asylum law system, activities in that area had been conducted exclusively by UNHCR and its partners. Nevertheless, the activities of the Office of the High Commissioner had never been officially recognised by the Libyan government, which in April 2010 had ordered UNHCR to close its Tripoli office and cease those activities.", "Given the circumstances, the Libyan government had never granted any formal status to persons registered by UNHCR as refugees and they were guaranteed no form of protection.", "108. Until the events of 2011, anyone considered to be an illegal immigrant had been held in a “detention centre”, the majority of which had been visited by UNHCR. The living conditions in those centres had been mediocre and characterised by overcrowding and inadequate sanitary facilities. That situation had been aggravated by the push-back operations, which had exacerbated overcrowding and led to further deterioration in the sanitary conditions. That had led to a significantly greater need for basic assistance just to keep those individuals alive.", "109. According to the Columbia Law School Human Rights Clinic, while clandestine immigration by sea was not a new phenomenon, the international community had increasingly recognised the need to restrict immigration-control practices, including interception at sea, which could hinder migrants’ access to protection and thus expose them to the risk of torture.", "2. The Court’s assessment", "(a) Admissibility", "110. The Government submitted that the applicants could not claim to be “victims”, within the meaning of Article 34 of the Convention, of the events of which they complained. They disputed the existence of a genuine risk that the applicants would be subjected to inhuman and degrading treatment as a result of their return to Libya. That danger had to be assessed on the basis of substantial grounds relating to the circumstances of each applicant. The information provided by the parties concerned was vague and insufficient.", "111. The Court notes that the issue raised by this preliminary objection is closely bound up with those it will have to consider when examining the complaints under Article 3 of the Convention. That provision requires that the Court establish whether or not there are substantial grounds for believing that the parties concerned ran a real risk of being subjected to torture or inhuman or degrading treatment after having been pushed back. This issue should therefore be joined to examination on the merits.", "112. The Court considers that this part of the application raises complex issues of law and fact which cannot be determined without an examination on the merits. It follows that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "(i) General principles", "(α) Responsibility of Contracting States in cases of expulsion", "113. According to the Court’s established case-law, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Court also notes that the right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI).", "114. However, expulsion, extradition or any other measure to remove an alien may give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Soering, cited above, §§ 90-91; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007).", "115. In this type of case, the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Saadi v. Italy [GC], no. 37201/06, § 126, ECHR 2008).", "(β) Factors used to assess the risk of being subjected to treatment in breach of Article 3 of the Convention", "116. In determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu (see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present one, the Court’s examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one (see Chahal v. the United Kingdom, 15 November 1996, § 96, Reports 1996-V).", "117. In order to ascertain whether or not there was a risk of ill-treatment, the Court must examine the foreseeable consequences of the removal of an applicant to the receiving country in the light of the general situation there as well as his or her personal circumstances (see Vilvarajah and Others, cited above, § 108 in fine ).", "118. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human rights protection associations such as Amnesty International, or governmental sources (see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005-VI; Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65 ‑ 66, 20 February 2007; and Saadi, cited above, § 131).", "119. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are substantial grounds for believing in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-49).", "120. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (see H.L.R. v. France, cited above, § 40).", "121. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of removal.", "(ii) Application to the instant case", "122. The Court has already had occasion to note that the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers. It does not underestimate the burden and pressure this situation places on the States concerned, which are all the greater in the present context of economic crisis (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011). It is particularly aware of the difficulties related to the phenomenon of migration by sea, involving for States additional complications in controlling the borders in southern Europe.", "However, having regard to the absolute character of the rights secured by Article 3, that cannot absolve a State of its obligations under that provision.", "123. The Court reiterates that protection against the treatment prohibited by Article 3 imposes on States the obligation not to remove any person who, in the receiving country, would run the real risk of being subjected to such treatment.", "It notes that the numerous reports by international bodies and non-governmental organisations paint a disturbing picture of the treatment meted out to clandestine immigrants in Libya at the material time. The conclusions of those documents are moreover corroborated by the CPT report of 28 April 2010 (see paragraph 36 above).", "124. The Court observes in passing that the situation in Libya worsened after the closure of the UNHCR office in Tripoli in April 2010 and the subsequent popular revolution which broke out in the country in February 2011. However, for the purposes of examining this case, the Court will refer to the situation prevailing in Libya at the material time.", "125. According to the various reports mentioned above, during the period in question no rule governing the protection of refugees was complied with by Libya. Any person entering the country by illegal means was deemed to be clandestine and no distinction was made between irregular migrants and asylum-seekers. Consequently, those persons were systematically arrested and detained in conditions that outside visitors, such as delegations from UNHCR, Human Rights Watch and Amnesty International, could only describe as inhuman. Many cases of torture, poor hygiene conditions and lack of appropriate medical care were denounced by all the observers. Clandestine migrants were at risk of being returned to their countries of origin at any time and, if they managed to regain their freedom, were subjected to particularly precarious living conditions as a result of their irregular situation. Irregular immigrants, such as the applicants, were destined to occupy a marginal and isolated position in Libyan society, rendering them extremely vulnerable to xenophobic and racist acts (see paragraphs 35-41 above).", "126. Those same reports clearly show that clandestine migrants disembarked in Libya following their interception by Italy on the high seas, such as the applicants, were exposed to those risks.", "127. Confronted with the disturbing picture painted by the various international organisations, the Government argued that Libya was, at the material time, a “safe” destination for migrants intercepted on the high seas.", "They based that belief on the presumption that Libya had complied with its international commitments as regards asylum and the protection of refugees, including the principle of non-refoulement. They claimed that the Italian-Libyan Friendship Treaty of 2008, in accordance with which clandestine migrants were returned to Libya, made specific reference to compliance with the provisions of international human rights law and other international conventions to which Libya was party.", "128. In that regard, the Court observes that Libya’s failure to comply with its international obligations was one of the facts denounced in the international reports on that country. In any event, the Court is bound to observe that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill ‑ treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see M.S.S. v. Belgium and Greece, cited above, § 353, and, mutatis mutandis, Saadi, cited above, § 147).", "129. Furthermore, the Court observes that Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya. Even if it were to be assumed that those agreements made express provision for the return to Libya of migrants intercepted on the high seas, the Contracting States’ responsibility continues even after their having entered into treaty commitments subsequent to the entry into force of the Convention or its Protocols in respect of these States (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII, and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010).", "130. With regard to the Government’s argument based on the presence of a UNHCR office in Tripoli, it must be noted that the activity of the Office of the High Commissioner, even before it was finally closed in April 2010, was never recognised in any way by the Libyan government. The documents examined by the Court show that the refugee status granted by UNHCR did not guarantee the persons concerned any kind of protection in Libya.", "131. The Court notes again that that situation was well known and easy to verify on the basis of multiple sources. It therefore considers that when the applicants were removed, the Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country.", "132. The Government submitted that the applicants had failed to describe sufficiently the risks in Libya because they had not applied to the Italian authorities for asylum. The mere fact that the applicants had opposed their disembarkation in Libya could not, according to the Government, be considered to be a request for protection, imposing on Italy an obligation under Article 3 of the Convention.", "133. The Court observes, firstly, that that fact was disputed by the applicants, who stated that they had informed the Italian military personnel of their intention to request international protection. Furthermore, the applicants’ version is corroborated by the numerous witness statements gathered by UNHCR and Human Rights Watch. In any event, the Court considers that it was for the national authorities, faced with a situation in which human rights were being systematically violated, as described above, to find out about the treatment to which the applicants would be exposed after their return (see, mutatis mutandis, Chahal, cited above, §§ 104-05; Jabari, cited above, §§ 40-41; and M.S.S. v. Belgium and Greece, cited above, § 359). Having regard to the circumstances of the case, the fact that the parties concerned had failed expressly to request asylum did not exempt Italy from fulfilling its obligations under Article 3.", "134. In that connection, the Court notes that none of the provisions of international law cited by the Government justified the applicants being pushed back to Libya, in so far as the rules for the rescue of persons at sea and those governing the fight against people trafficking impose on States the obligation to fulfil the obligations arising out of international refugee law, including the non-refoulement principle (see paragraph 23 above).", "135. That non-refoulement principle is also enshrined in Article 19 of the Charter of Fundamental Rights of the European Union. In that connection, the Court attaches particular weight to the content of a letter written on 15 July 2009 by Mr Jacques Barrot, Vice-President of the European Commission, in which he stressed the importance of compliance with the principle of non-refoulement in the context of operations carried out on the high seas by member States of the European Union (see paragraph 34 above).", "136. Having regard to the foregoing, the Court considers that in the present case substantial grounds have been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. The fact that a large number of irregular immigrants in Libya found themselves in the same situation as the applicants does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above, § 132).", "137. Relying on these conclusions and the obligations on States under Article 3, the Court considers that, by transferring the applicants to Libya, the Italian authorities, in full knowledge of the facts, exposed them to treatment proscribed by the Convention.", "138. Accordingly, the Government’s objection concerning the applicants’ lack of victim status must be rejected and it must be concluded that there has been a violation of Article 3 of the Convention.", "B. Alleged violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of arbitrary repatriation to Eritrea and Somalia", "1. The parties’ submissions", "(a) The applicants", "139. The applicants alleged that their transfer to Libya, where refugees and asylum-seekers were granted no form of protection, exposed them to the risk of being returned to their respective countries of origin: Somalia and Eritrea. They claimed that various reports by international sources attested to the existence of conditions in both those countries which breached human rights.", "140. The applicants, who had fled their respective countries, argued that they had not been afforded any opportunity to secure international protection. The fact that most of them had obtained refugee status after their arrival in Libya confirmed that their fears of being subjected to ill-treatment were well-founded. They submitted that, although the Libyan authorities did not recognise the refugee status granted by the UNHCR office in Tripoli, the granting of that status demonstrated that the group of migrants to which they belonged was in need of international protection.", "(b) The Government", "141. The Government pointed out that Libya was a signatory to various international instruments concerning the protection of human rights and observed that, by ratifying the 2008 Friendship Treaty, it had expressly undertaken to comply with the principles contained in the United Nations Charter and in the Universal Declaration of Human Rights.", "142. They reaffirmed that the presence of UNHCR in Libya constituted an assurance that no one entitled to asylum or any other form of international protection would be arbitrarily expelled. They claimed that a significant number of applicants had been granted refugee status in Libya, which would rule out their repatriation.", "(c) Third-party interveners", "143. UNHCR stated that Libya frequently conducted collective expulsions of refugees and asylum-seekers to their countries of origin, where they could be subjected to torture and other ill-treatment. It denounced the absence of a system for international protection in Libya, which led to a very high risk of “chain refoulements ” of persons in need of protection.", "The Office of the United Nations High Commissioner, Human Rights Watch and Amnesty International noted the risk, for individuals forcibly repatriated to Eritrea and Somalia, of being subjected to torture and inhuman or degrading treatment and of being exposed to extremely precarious living conditions.", "144. The AIRE Centre, Amnesty International and the FIDH submitted that, having regard to the particular vulnerability of asylum-seekers and persons intercepted on the high seas and the lack of adequate guarantees or procedures on board vessels allowing for push-backs to be challenged, it was even more vital for the Contracting Parties involved in the return operations to ascertain the actual situation in the receiving States, including as regards the risk of any subsequent return.", "2. The Court’s assessment", "(a) Admissibility", "145. The Court considers that this complaint raises issues of law and fact which cannot be determined without an examination on the merits. It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "146. The Court reiterates the principle according to which indirect refoulement of an alien leaves the responsibility of the Contracting State intact, and that State is required, in accordance with the well-established case-law, to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation (see, mutatis mutandis, T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III, and M.S.S. v. Belgium and Greece, cited above, § 342).", "147. It is a matter for the State carrying out the return to ensure that the intermediary country offers sufficient guarantees to prevent the person concerned being removed to his country of origin without an assessment of the risks faced. The Court observes that that obligation is all the more important when, as in the instant case, the intermediary country is not a State Party to the Convention.", "148. In the instant case, the Court’s task is not to rule on the violation of the Convention in the event of repatriation of the applicants, but to ascertain whether there were sufficient guarantees that the parties concerned would not be arbitrarily returned to their countries of origin, where they had an arguable claim that their repatriation would breach Article 3 of the Convention.", "149. The Court has a certain amount of information on the general situation in Eritrea and Somalia, the applicants’ countries of origin, submitted by the parties concerned and by the third-party interveners (see paragraphs 43 and 44 above).", "150. It observes that, according to UNHCR and Human Rights Watch, individuals forcibly repatriated to Eritrea face being tortured and detained in inhuman conditions merely for having left the country irregularly. As regards Somalia, in the recent case of Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011) the Court noted the serious levels of violence in Mogadishu and the increased risk to persons returned to that country of being forced either to transit through areas affected by the armed conflict or to seek refuge in camps for displaced persons or refugees, where living conditions were appalling.", "151. The Court considers that all the information in its possession shows prima facie that the situation in Somalia and Eritrea posed and continues to pose widespread serious problems of insecurity. That finding, moreover, has not been disputed before the Court.", "152. Consequently, the applicants could arguably claim that their repatriation would breach Article 3 of the Convention. The Court must now ascertain whether the Italian authorities could reasonably expect Libya to offer sufficient guarantees against arbitrary repatriation.", "153. The Court observes, firstly, that Libya has not ratified the Geneva Convention on Refugee Status. Furthermore, international observers note the absence of any form of asylum and protection procedure for refugees in Libya. In that connection, the Court has already had occasion to note that the presence of UNHCR in Tripoli hardly constituted a guarantee of protection for asylum-seekers on account of the negative attitude of the Libyan authorities, which did not recognise any value in the status of refugee (see paragraph 130 above).", "154. In those circumstances, the Court cannot subscribe to the Government’s argument that the activities of UNHCR represented a guarantee against arbitrary repatriation. Moreover, Human Rights Watch and UNHCR had denounced several earlier forced returns of irregular migrants, including asylum-seekers and refugees, to high-risk countries.", "155. Therefore, the fact that some of the applicants have obtained refugee status does not reassure the Court as regards the risk of arbitrary return. On the contrary, the Court shares the applicants’ view that that constitutes additional evidence of the vulnerability of the parties concerned.", "156. In view of the foregoing, the Court considers that, when the applicants were transferred to Libya, the Italian authorities knew or should have known that there were insufficient guarantees protecting the parties concerned from the risk of being arbitrarily returned to their countries of origin, having regard in particular to the lack of any asylum procedure and the impossibility of making the Libyan authorities recognise the refugee status granted by UNHCR.", "157. Furthermore, the Court reaffirms that Italy is not exempt from complying with its obligations under Article 3 of the Convention because the applicants failed to ask for asylum or to describe the risks faced as a result of the lack of an asylum system in Libya. It reiterates that the Italian authorities should have ascertained how the Libyan authorities fulfilled their international obligations in relation to the protection of refugees.", "158. It follows that the transfer of the applicants to Libya also violated Article 3 of the Convention because it exposed the applicants to the risk of arbitrary repatriation.", "IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "159. The applicants stated that they had been the subject of a collective expulsion having no basis in law. They relied on Article 4 of Protocol No. 4 to the Convention, which provides:", "“Collective expulsion of aliens is prohibited.”", "A. The parties’ submissions", "1. The Government", "160. The Government submitted that Article 4 of Protocol No. 4 was not applicable in the instant case. They argued that the guarantee provided by that provision came into play only in the event of the expulsion of persons on the territory of a State or who had crossed the national border illegally. In the instant case, the measure in issue was a refusal to authorise entry into national territory rather than “expulsion”.", "2. The applicants", "161. While acknowledging that the word “expulsion” might seemingly constitute an obstacle to the applicability of Article 4 of Protocol No. 4, the applicants submitted that an evolutive approach should lead the Court to recognise the applicability of Article 4 of Protocol No. 4 in the present case.", "162. In particular, the applicants sought a functional and teleological interpretation of that provision. In their view, the primary purpose of prohibiting collective expulsions was to prevent States from forcibly transferring groups of aliens to other States without examining their individual circumstances, even summarily. Such a prohibition should also apply to measures to push back migrants on the high seas, carried out without any preliminary formal decision, in so far as such measures could constitute “hidden expulsions”. A teleological and “extraterritorial” interpretation of that provision would render it practical and effective rather than theoretical and illusory.", "163. According to the applicants, even if the Court were to decide to make the prohibition established by Article 4 of Protocol No. 4 strictly territorial in scope, their return to Libya would in any case fall within the scope of application of that Article because it had occurred on a vessel flying the Italian flag, which, under Article 4 of the Italian Navigation Code, was considered to be “Italian territory”.", "Their return to Libya, carried out with no prior identification and no examination of the personal circumstances of each applicant, had constituted a removal measure that was, in substance, “collective”.", "3. Third-party interveners", "164. The United Nations High Commissioner for Human Rights (OHCHR), whose submissions were shared by UNHCR, argued that Article 4 of Protocol No. 4 was applicable in the instant case. They submitted that the issue was of key importance, having regard to the potentially significant effects of a broad interpretation of that provision in the field of international migration.", "Having pointed out that collective expulsions of aliens, including those in an irregular situation, were generally prohibited by international and Community law, the OHCHR argued that persons intercepted on the high seas should be able to benefit from protection against that kind of expulsion, even though they had not been able to reach a State’s border.", "Collective expulsions on the high seas were prohibited having regard to the principle of good faith, in the light of which the Convention provisions must be interpreted. To allow States to push back migrants intercepted on the high seas without complying with the guarantee enshrined in Article 4 of Protocol No. 4 would amount to accepting that States were able to evade their obligations under the Convention by advancing their border-control operations.", "Moreover, recognition of the extraterritorial exercise of a Contracting State’s jurisdiction over actions taking place on the high seas would, according to the OHCHR, entail a presumption that all the rights guaranteed by the Convention and its Protocols would be applicable.", "165. The Columbia Law School Human Rights Clinic pointed out the importance of procedural guarantees in the area of protection of the human rights of refugees. States were bound to examine the situation of each individual on a case-by-case basis in order to guarantee effective protection of the fundamental rights of the parties concerned and to avoid removing them while there was a risk of harm.", "The Columbia Law School Human Rights Clinic submitted that clandestine immigration by sea was not a new phenomenon but that the international community had increasingly recognised the need to identify constraints on State immigration-control practices, including interception at sea. The principle of non-refoulement required States to refrain from removing individuals without having assessed their circumstances on a case-by-case basis.", "Various bodies of the United Nations, such as the Committee Against Torture, had clearly stated that such practices risked breaching international human rights standards and had emphasised the importance of individual identification and assessment to prevent people being returned to situations where they would be at risk. The Inter-American Commission for Human Rights had recognised the importance of these procedural guarantees in The Haitian Centre for Human Rights et al. v. United States (Case no. 10.675, report no. 51/96, § 163), in which it had expressed the opinion that the United States had impermissibly returned interdicted Haitian migrants without making an adequate determination of their status, and without granting them a hearing to ascertain whether they qualified as refugees. That decision was of particular significance as it contradicted the earlier position of the Supreme Court of the United States in Sale v. Haitian Centers Council (113 S. Ct., 2549, 1993).", "B. The Court’s assessment", "1. Admissibility", "166. The Court must first examine the question of the applicability of Article 4 of Protocol No. 4. In Becker v. Denmark (no. 7011/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 4, p. 236) concerning the repatriation of a group of approximately two hundred Vietnamese children by the Danish authorities, the Commission defined, for the first time, the “collective expulsion of aliens” as being “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group”.", "167. That definition was used subsequently by the Convention bodies in other cases concerning Article 4 of Protocol No. 4. The Court observes that the majority of such cases involved persons who were on the territory in issue (see K.G. v. the Federal Republic of Germany, no. 7704/76, Commission decision of 11 March 1977, unreported; O. and Others v. Luxembourg, no. 7757/77, Commission decision of 3 March 1978, unreported; A. and Others v. the Netherlands, no. 14209/88, Commission decision of 16 December 1988, DR 59, p. 274; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Čonka v. Belgium, no. 51564/99, ECHR 2002 ‑ I; Davydov v. Estonia (dec.), no. 16387/03, 31 May 2005; Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia” (dec.), no. 18670/03, ECHR 2005-VIII; Sultani v. France, no. 45223/05, ECHR 2007-IV; Ghulami v. France (dec.), no. 45302/05, 7 April 2009; and Dritsas and Others v. Italy (dec.), no. 2344/02, 1 February 2011).", "168. The case of Xhavara and Others v. Italy and Albania ((dec.), no. 39473/98, 11 January 2001), however, concerned Albanian nationals who had attempted to enter Italy illegally on board an Albanian vessel and who had been intercepted by an Italian warship approximately 35 nautical miles off the Italian coast. The Italian ship had attempted to prevent the parties concerned from disembarking on national territory, leading to the death of fifty-eight people, including the applicants’ parents, as a result of a collision. In that case, the applicants complained in particular of Legislative Decree no. 60 of 1997, which provided for the immediate expulsion of irregular aliens, a measure subject only to appeal without suspensive effect. They considered that that constituted a breach of the guarantee afforded by Article 4 of Protocol No. 4. The Court rejected the complaint on the ground of incompatibility ratione personae, as the provision in question had not been applied to their case, and did not rule on the applicability of Article 4 of Protocol No. 4 to the case in issue.", "169. Therefore, in the instant case, the Court must, for the first time, examine whether Article 4 of Protocol No. 4 applies to a case involving the removal of aliens to a third State carried out outside national territory. It must ascertain whether the transfer of the applicants to Libya constituted a “collective expulsion of aliens” within the meaning of the provision in issue.", "170. In interpreting the provisions of the Convention, the Court draws on Articles 31 to 33 of the Vienna Convention on the Law of Treaties (see, for example, Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Demir and Baykara v. Turkey [GC], no. 34503/97, § 65, ECHR 2008; and Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008).", "171. Pursuant to the Vienna Convention on the Law of Treaties, the Court must establish the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of the provision from which they are taken. It must take account of the fact that the provision in issue forms part of a treaty for the effective protection of human rights and that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). The Court must also take account of any relevant rules and principles of international law applicable in the relations between the Contracting Parties (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005-VI; see also Article 31 § 3 (c) of the Vienna Convention). The Court may also have recourse to supplementary means of interpretation, notably the travaux préparatoires of the Convention, either to confirm the meaning determined in accordance with the methods referred to above or to clarify the meaning when it would otherwise be ambiguous, obscure or manifestly absurd and unreasonable (see Article 32 of the Vienna Convention).", "172. The Government submitted that there was a logical obstacle to the applicability of Article 4 of Protocol No. 4 in the instant case, namely the fact that the applicants were not on Italian territory at the time of their transfer to Libya so that measure, in the Government’s view, could not be considered to be an “expulsion” within the ordinary meaning of the term.", "173. The Court does not share the Government’s opinion on this point. It notes, firstly, that, while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol No. 4 does not in itself pose an obstacle to its extraterritorial application. It must be noted that Article 4 of Protocol No. 4 contains no reference to the notion of “territory”, whereas the wording of Article 3 of the same Protocol, on the contrary, specifically refers to the territorial scope of the prohibition on the expulsion of nationals. Likewise, Article 1 of Protocol No. 7 explicitly refers to the notion of territory regarding procedural safeguards relating to the expulsion of aliens lawfully resident in the territory of a State. In the Court’s view, that wording cannot be ignored.", "174. The travaux préparatoires are not explicit as regards the scope of application and ambit of Article 4 of Protocol No. 4. In any event, the Explanatory Report to Protocol No. 4, drawn up in 1963, reveals that as far as the Committee of Experts was concerned the purpose of Article 4 was to formally prohibit “collective expulsions of aliens of the kind which was a matter of recent history”. Thus, it was “agreed that the adoption of [Article 4] and paragraph 1 of Article 3 could in no way be interpreted as in any way justifying measures of collective expulsion which may have been taken in the past”. The commentary on the draft reveals that, according to the Committee of Experts, the aliens to whom the Article refers are not only those lawfully resident on the territory but “all those who have no actual right to nationality in a State, whether they are passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality” (Article 4 of the final Committee draft, p. 505, § 34). Lastly, according to the drafters of Protocol No. 4, the word “expulsion” should be interpreted “in the generic meaning, in current use (to drive away from a place)”. While that last definition is contained in the section relating to Article 3 of the Protocol, the Court considers that it can also be applied to Article 4 of the same Protocol. It follows that the travaux préparatoires do not preclude extraterritorial application of Article 4 of Protocol No. 4.", "175. It remains to be seen, however, whether such an application is justified. To reply to that question, account must be taken of the purpose and meaning of the provision in issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for example, Soering, cited above, § 102; Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; X, Y and Z v. the United Kingdom, 22 April 1997, Reports 1997-II; V. v. the United Kingdom [GC], no. 24888/94, § 72, ECHR 1999-IX; and Matthews v. the United Kingdom [GC], no. 24833/94, § 39, ECHR 1999-I). Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005-XI).", "176. A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control in so far as they constitute tools for States to combat irregular immigration.", "The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control.", "177. The Court has already found that, according to the established case ‑ law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas. Article 4 would thus be ineffective in practice with regard to such situations, which, however, are on the increase. The consequence of that would be that migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.", "178. It is therefore clear that, while the notion of “jurisdiction” is principally territorial and is presumed to be exercised on the national territory of States (see paragraph 71 above), the notion of expulsion is also principally territorial in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see Medvedyev and Others, cited above, § 81).", "179. The above considerations do not call into question the right of States to establish their own immigration policies. It must be pointed out, however, that problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention. The Court reiterates in that connection that the provisions of treaties must be interpreted in good faith in the light of the object and purpose of the treaty and in accordance with the principle of effectiveness (see Mamatkulov and Askarov, cited above, § 123).", "180. Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.", "181. In the instant case, the Court considers that the operation resulting in the transfer of the applicants to Libya was carried out by the Italian authorities with the intention of preventing the irregular migrants disembarking on Italian soil. In that connection, it attaches particular weight to the statements given after the events to the Italian press and the State Senate by the Minister of the Interior, in which he explained the importance of the push-back operations on the high seas in combating clandestine immigration and stressed the significant decrease in disembarkations as a result of the operations carried out in May 2009 (see paragraph 13 above).", "182. Accordingly, the Court rejects the Government’s objection and considers that Article 4 of Protocol No. 4 is applicable in the instant case.", "2. Merits", "183. The Court observes that, to date, the Čonka case (see judgment cited above) is the only one in which it has found a violation of Article 4 of Protocol No. 4. When examining that case, in order to assess whether or not there had been a collective expulsion, it examined the circumstances of the case and ascertained whether the deportation decisions had taken account of the particular circumstances of the individuals concerned. The Court then stated (§§ 61-63):", "“The Court notes, however, that the detention and deportation orders in issue were made to enforce an order to leave the territory dated 29 September 1999; that order was made solely on the basis of section 7, first paragraph, point (2), of the Aliens Act, and the only reference to the personal circumstances of the applicants was to the fact that their stay in Belgium had exceeded three months. In particular, the document made no reference to their application for asylum or to the decisions of 3 March and 18 June 1999. Admittedly, those decisions had also been accompanied by an order to leave the territory, but by itself, that order did not permit the applicants’ arrest. The applicants’ arrest was therefore ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to their requests for asylum, but nonetheless sufficient to entail the implementation of the impugned measures. In those circumstances and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed does not enable it to eliminate all doubt that the expulsion might have been collective.", "That doubt is reinforced by a series of factors: firstly, prior to the applicants’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation ...; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.", "In short, at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account.”", "184. In their case-law, the bodies of the Convention have furthermore indicated that the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see K.G. v. the Federal Republic of Germany, cited above; Andric, cited above; and Sultani, cited above, § 81). Lastly, the Court has ruled that there is no violation of Article 4 of Protocol No. 4 if the lack of an expulsion decision made on an individual basis is the consequence of the applicants’ own culpable conduct (see Berisha and Haljiti, cited above, and Dritsas and Others, cited above).", "185. In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.", "That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.", "186. Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4 to the Convention. Accordingly, there has been a violation of that Article.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 AND ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "187. The applicants complained that they were not afforded an effective remedy under Italian law by which to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "1. The applicants", "188. The applicants submitted that Italy’s interceptions of persons on the high seas were not in accordance with the law and were not subject to a review of their lawfulness by a national authority. For that reason, the applicants had been deprived of any opportunity of lodging an appeal against their return to Libya and alleging a violation of Article 3 of the Convention and Article 4 of Protocol No. 4.", "189. The applicants argued that none of the requirements of the effectiveness of remedies provided for in the Court’s case-law had been met by the Italian authorities, which had not even identified the intercepted migrants and had ignored their requests for protection. Furthermore, even if it were to be assumed that they had had the opportunity to voice their request for asylum to the military personnel, they could not have been afforded the procedural guarantees provided by Italian law, such as access to a court, for the simple reason that they were on board ships.", "190. The applicants considered that the exercise of territorial sovereignty in connection with immigration policy should in no circumstances give rise to failure to comply with the obligations imposed on States by the Convention, including the obligation to guarantee the right to an effective remedy before a national court to any person falling within their jurisdiction.", "2. The Government", "191. The Government submitted that because the events in the instant case had taken place on board ships, it had been impossible to guarantee the applicants the right of access to a national court.", "192. At the hearing before the Grand Chamber, they argued that the applicants should have applied to the national courts to obtain recognition and, as the case may be, compensation for the alleged violations of the Convention. According to the Government, the Italian judicial system would have enabled any responsibility on the part of the military personnel who had rescued the applicants to be established both under national and international law.", "The Government contended that the applicants to whom UNHCR had granted refugee status were able to enter Italian territory at any time and to exercise their Convention rights, including the right to apply to the judicial authorities.", "3. Third-party interveners", "193. UNHCR stated that the principle of non-refoulement involved procedural obligations for States. Furthermore, the right of access to an effective asylum procedure conducted by a competent authority was all the more vital when it involved “mixed” migratory flows, in the framework of which potential asylum-seekers must be singled out and distinguished from the other migrants.", "194. The AIRE Centre, Amnesty International and the International Federation for Human Rights (FIDH) considered that the individuals pushed back as a result of the interception on the high seas did not have access to any remedy in the Contracting State responsible for the operations, much less a remedy capable of meeting the requirements of Article 13. The applicants had neither an adequate opportunity nor the necessary support, notably the assistance of an interpreter, to enable them to set out the reasons militating against their return, not to mention an examination, the rigour of which met the requirements of the Convention. The interveners argued that when the Contracting Parties to the Convention were involved in interceptions at sea resulting in a push-back, it was their responsibility to ensure that each of the persons concerned had an effective opportunity to challenge his or her return in the light of the rights guaranteed by the Convention and to obtain an examination of his or her application before the return was effected.", "The interveners considered that the lack of a remedy allowing for identification of the applicants and an individual assessment of their requests for protection and their needs constituted a serious omission, as did the lack of any follow-up investigation to ascertain the fate of the persons returned.", "195. The Columbia Law School Human Rights Clinic asserted that international human rights and refugee law required, firstly, that a State advise migrants of their right to access protection. Such advice was critical to effecting the State’s duty to identify those in need of international protection among interdicted persons. That requirement was heightened for those interdicted at sea because they were particularly unlikely to be familiar with local law and often lacked access to an interpreter or legal advice. Then, each person should be interviewed by the national authorities to obtain an individual decision on his or her application.", "B. The Court’s assessment", "1. Admissibility", "196. The Court reiterates that it joined the Government’s objection of failure to exhaust domestic remedies raised at the hearing before the Grand Chamber (see paragraph 62 above) to the examination on the merits of the complaints under Article 13. Furthermore, the Court considers that this part of the application raises complex issues of law and fact which cannot be determined without an examination of the merits. It follows that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) General principles", "197. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI).", "198. It results from the Court’s case-law that an applicant’s complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention “must imperatively be subject to close scrutiny by a ‘national authority’” (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005-III; see also Jabari, cited above, § 39). That principle has led the Court to rule that the notion of “effective remedy” within the meaning of Article 13 taken in conjunction with Article 3 requires, firstly, “independent and rigorous scrutiny” of any complaint made by a person in such a situation, where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3” and, secondly, “the possibility of suspending the implementation of the measure impugned” (see the above-cited judgments, § 460 and § 50 respectively).", "199. Moreover, in Čonka (cited above, §§ 79 et seq.) the Court stated, in relation to Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention, that a remedy did not meet the requirements of the former if it did not have suspensive effect. It pointed out in particular (§ 79):", "“The Court considers that the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible ... Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision ...”", "200. In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the Court has ruled that the suspensive effect should also apply to cases in which a State Party decides to remove an alien to a country where there are substantial grounds for believing that he or she faces a risk of that nature (see Gebremedhin [Geberamadhien] v. France, no. 25389/05, § 66, ECHR 2007-II, and M.S.S. v. Belgium and Greece, cited above, § 293).", "(b) Application to the instant case", "201. The Court has already concluded that the return of the applicants to Libya amounted to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4. The complaints lodged by the applicants on these points are therefore “arguable” for the purposes of Article 13.", "202. The Court has found that the applicants had no access to a procedure to identify them and to assess their personal circumstances before they were returned to Libya (see paragraph 185 above). The Government acknowledged that no provision was made for such procedures aboard the military ships onto which the applicants were made to embark. There were neither interpreters nor legal advisers among the personnel on board.", "203. The Court observes that the applicants alleged that they were given no information by the Italian military personnel, who had led them to believe that they were being taken to Italy and who had not informed them as to the procedure to be followed to avoid being returned to Libya.", "In so far as that circumstance is disputed by the Government, the Court attaches more weight to the applicants’ version because it is corroborated by a very large number of witness statements gathered by UNHCR, the CPT and Human Rights Watch.", "204. The Court has previously found that the lack of access to information is a major obstacle in accessing asylum procedures (see M.S.S. v. Belgium and Greece, cited above, § 304). It reiterates here the importance of guaranteeing anyone subject to a removal measure, the consequences of which are potentially irreversible, the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to substantiate their complaints.", "205. Having regard to the circumstances of the instant case, the Court considers that the applicants were deprived of any remedy which would have enabled them to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.", "206. As regards the Government’s argument that the applicants should have availed themselves of the opportunity of applying to the Italian criminal courts upon their arrival in Libya, the Court can only note that, even if such a remedy were accessible in practice, the requirements of Article 13 of the Convention are clearly not met by criminal proceedings brought against military personnel on board the army’s ships, in so far as that does not satisfy the criterion of suspensive effect enshrined in the above-cited Čonka judgment. The Court reiterates that the requirement flowing from Article 13 that execution of the impugned measure be stayed cannot be considered as a subsidiary measure (see M.S.S. v. Belgium and Greece, cited above, § 388).", "207. The Court concludes that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4 to the Convention. It follows that the applicants cannot be criticised for not having properly exhausted domestic remedies and that the Government’s preliminary objection (see paragraph 62 above) must be dismissed.", "VI. ARTICLES 46 AND 41 OF THE CONVENTION", "A. Article 46 of the Convention", "208. Article 46 provides:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "209. Under Article 46 of the Convention, the High Contracting Parties undertake to abide by the final judgment of the Court in the cases to which they are parties, the Committee of Ministers being responsible for supervising the execution of the judgments. This means that when the Court finds a violation, the respondent State is legally bound not only to pay the interested parties the sums awarded in just satisfaction under Article 41, but also to adopt the necessary general and/or, where applicable, individual measures. As the Court’s judgments are essentially declaratory in nature, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 46 of the Convention, provided that those means are compatible with the conclusions contained in the Court’s judgment. In certain particular situations, however, the Court may find it useful to indicate to the respondent State the type of measures that might be taken in order to put an end to the – often systemic – situation that gave rise to the finding of a violation (see, for example, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). Sometimes the nature of the violation found may be such as to leave no real choice as to the measures required (see Assanidze, cited above, § 198; Aleksanyan v. Russia, no. 46468/06, § 239, 22 December 2008; and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 85 and 88, ECHR 2009).", "210. In the instant case, the Court considers it necessary to indicate the individual measures required for the execution of the present judgment, without prejudice to the general measures required to prevent other similar violations in the future (see M.S.S. v. Belgium and Greece, cited above, § 400).", "211. The Court has found, inter alia, that the transfer of the applicants exposed them to the risk of being subjected to ill-treatment in Libya and of being arbitrarily repatriated to Somalia and Eritrea. Having regard to the circumstances of the case, the Court considers that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated.", "B. Article 41 of the Convention", "212. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "213. The applicants each claimed 15,000 euros (EUR) for the non ‑ pecuniary damage allegedly suffered.", "214. The Government opposed that claim, pointing out that the applicants’ lives had been saved by virtue of the intervention of the Italian authorities.", "215. The Court considers that the applicants must have experienced certain distress for which the Court’s findings of violations alone cannot constitute just satisfaction. Having regard to the nature of the violations found in the instant case, the Court considers it equitable to uphold the applicants’ claim and awards each of them EUR 15,000 in respect of non-pecuniary damage, to be held by the representatives in trust for the applicants.", "C. Costs and expenses", "216. The applicants also claimed EUR 1,575.74 for costs and expenses incurred before the Court.", "217. The Government challenged that claim.", "218. According to the Court’s established case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the instant case, and having regard to the documents available to it and to its case-law, the Court considers the total amount claimed in respect of the proceedings before the Court to be reasonable and awards that amount to the applicants.", "D. Default interest", "219. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "8. The facts of the cases, as submitted by the parties, may be summarised as follows.", "M.K. v. Poland, application no. 40503/17 The applicant’s situation prior to the application for an interim measure", "The applicant’s situation prior to the application for an interim measure", "The applicant’s situation prior to the application for an interim measure", "9. The applicant, Mr M.K., is a Russian national.", "10. In the period from July 2016 until 8 June 2017 he travelled to the Polish-Belarusian border crossing at Terespol on approximately thirty occasions. He submitted that each time that he had visited that border crossing he had expressly stated a wish to lodge an application for international protection; on at least several of those occasions, he had presented that application in written form (a copy of this document was submitted to the Court).", "11. The applicant also submitted that on one occasion (on 17 March 2017) his representative had also been at the border checkpoint at Terespol but had not been allowed to meet with the applicant or be present at his questioning by the border guards. The presence of the applicant’s lawyer at the border was a part of a wider effort to provide legal assistance to asylum ‑ seekers organised by a group of lawyers from the Warsaw Bar Association. On the same day fifty-one persons – mainly of Chechen origin – presented themselves at the border checkpoint at Terespol. At the same time fourteen lawyers carrying powers of attorney from those persons were at the border and requested to be allowed to assist their clients during the second stage of the border-control process. Their request was refused. All those represented by the lawyers in question were returned to Belarus without the possibility of meeting with their representatives.", "12. According to the applicant, when talking to the border guards he expressed fears for his safety. He told the guards that he was from Chechnya and that before leaving that region he had been detained numerous times without any legal basis. He told them that on one occasion, while being questioned by the Chechen police, he had been tortured and forced to sign a statement agreeing to serve as an informant for the police; subsequently, the police had tried to find and arrest him. He presented to the border guards documents confirming that after being tortured he had developed post ‑ traumatic stress disorder. He also told the border guards that he could not remain in Belarus as his visa had expired and that in practice it would be impossible for him to obtain international protection there. The border guards then summarily turned him away, sending him back to Belarus.", "13. On each occasion that the applicant presented himself at the border crossing at Terespol administrative decisions were issued turning him away from the Polish border on the grounds that he did not have any documents authorising his entry into Poland and that he had not stated that he had been at risk of persecution in his home country but was in fact trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard reported that the applicant had indicated, inter alia : his desire to live and work in Poland or Germany, his desire to find a wife and start a family in Poland, his lack of any family in Chechnya, his wish to travel to join friends residing in Europe, his lack of employment and money, his refusal to denounce his friends to the authorities, and his wish to escape from the Chechen justice system in order to avoid responsibility for an accident in which someone had died.", "14. The applicant appealed against at least one of those administrative decisions (that decision had been issued on 17 March 2017). On 12 June 2017 the head of the National Border Guard ( Komendant Główny Straży Granicznej ) upheld the decision in question. The applicant lodged an appeal with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ). The proceedings before that court are pending.", "Interim measure indicated by the Court", "15. On 8 June 2017, when the applicant presented himself at the border crossing at Terespol, his representative lodged a request under Rule 39 of the Rules of Court asking the Court to prevent the applicant from being removed to Belarus. She indicated that, as a Russian citizen, the applicant had no genuine possibility of applying for international protection in Belarus and was at constant risk of expulsion to Chechnya, where he would face the threat of torture or of other forms of inhuman and degrading treatment.", "16. On 8 June 2017, at 10.52 a.m., the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicant should not be removed to Belarus until 23 June 2017. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicant was returned to Belarus at 11.25 a.m. He appealed against that decision.", "17. On 1 September 2017 the head of the National Border Guard upheld that decision. He stated, inter alia, that under domestic law, an interview with a foreigner who did not have documents allowing him to cross the Polish border was to be held by an officer of the Border Guard without the participation of other persons, including the lawyer representing that foreigner. The head of the National Border Guard added that the applicant had not expressed any wish to apply for international protection, as had he lodged such an application, the border guards would have received it. According to the head of the National Border Guard, the applicant had not substantiated that he had indeed tried to lodge such an application. Instead, the official note prepared by the Border Guard officer who had interviewed him stated that the applicant had expressed a wish to escape the judicial authorities in Chechnya and to travel to meet with friends to Germany. When referring to the interim measure indicated by the Court, the head of the National Border Guard stated that it was impossible to remove from Polish territory a person who had not legally crossed a border in the first place and that domestic law provided no basis for allowing the applicant to enter Poland.", "18. The applicant appealed to the Warsaw Regional Administrative Court. The proceedings before this court are still pending.", "Developments following the application of an interim measure", "19. On 9 June 2017 the applicant returned to the border checkpoint at Terespol, carrying with him a copy of a letter informing his representative of the Court’s decision concerning the interim measure. The applicant submitted that he had been searched by border guards and questioned about the people who had helped him and who had secured him legal representation and how this representation had been paid for. The applicant also alleged that his copy of the letter from the Court had been confiscated from him. The Government maintained that neither any such search nor any seizure of that document had taken place. They also stated that the applicant had not been questioned regarding his legal representation. They furthermore stated that during his conversation with the officers of the Border Guard the applicant had not expressed any need for international protection; rather, he had declared that he wished to go to Germany, where his family lived.", "20. On the same day the Government requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicant had never requested international protection, and nor had he given any reasons for the need for such protection. They also maintained that as the applicant had not been admitted to Poland by the border guards, he had not been legally in Poland and could therefore not be removed. In the Government’s view the applicant had abused the interim measure in order to pressurise the Polish Border Guard officers into giving him permission to enter Poland.", "21. On 14 June 2017 the Court (the duty judge) decided not to lift the interim measure, but rather to prolong it until further notice and to indicate to the Government that in the light of the submissions made to the Court (especially the applicant’s written application and his submissions, copies of which had been forwarded to the Government), the Court considered that the applicant had lodged a request for international protection. The Court clarified that the indication, made to the Government on 8 June 2017, that the applicant should not be removed to Belarus should be understood in such a way that when he presented himself at a Polish border checkpoint his application for asylum would be received and registered by the Border Guard and forwarded for examination by the competent authorities. Pending examination of the asylum application, the applicant should not be sent back to Belarus.", "22. The applicant arrived at the border checkpoint at Terespol on at least three more occasions. On each occasion he was turned away. The official notes made by the officers of the Border Guard state that on those three occasions he had indicated that he wished to enter Poland because he had not had any employment in Chechnya and he wished to live and work in Poland and to visit his friends in Germany; he also stated that he had a sister who lived either in Germany or in France. The Government also submitted that during one of the interviews with the officers of the Border Guard the applicant had stated that he had been helped by Belarusian non ‑ governmental organisations but that he did not know any Polish lawyers and that he had never talked to the psychologist who had signed a psychological report that he was carrying. The applicant contested those allegations. He submitted to the Court that he had indeed been subjected to a psychological examination (organised by a non-governmental organisation on 5 and 7 June 2017), the results of which he had presented in his submissions to the Court and to the Border Guard officers. He also submitted that he had declared to the officers of the Border Guard that he was in contact with his representative and that he was able to contact her by telephone at any time.", "23. On at least one of the occasions on which the applicant went to the Terespol border checkpoint (on 19 June 2017) his representative sent a copy of his application for international protection via email, fax and ePUAP (the Internet platform that enables individuals to contact the public administrative authorities) to the Border Guard at Terespol and to the Polish Border Guard Headquarters in Warsaw. She also informed of that fact the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based). In her letter she also referred to the interim measure indicated by the Court under Rule 39 of the Rules of Court. On 22 June 2017 the Deputy Director of the Department for Aliens at the National Border Guard headquarters ( Zastępca Dyrektora Zarządu do Spraw Cudzoziemców Komendy Głównej Straży Granicznej ) replied to the applicant’s representative, indicating to her that an application for international protection might be submitted only at the Polish border by the applicant in person.", "24. On 8 September 2017, when submitting their observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous request. On 13 November 2017 the President of the Section refused their request.", "25. On an unspecified date the applicant left Belarus, stating that he was afraid of deportation to Chechnya. He is currently residing in Siberia, Russia.", "M.A. and Others v. Poland, application no. 42902/17 The applicants’ situation prior to the application for an interim measure", "The applicants’ situation prior to the application for an interim measure", "The applicants’ situation prior to the application for an interim measure", "26. The applicants, Mr M.A. (“the first applicant”) and Mrs M.A. (“the second applicant”) are Russian nationals. They are married. The other five applicants are their minor children, who were travelling with them.", "27. In April 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol on two occasions. According to them, on each occasion they expressed a wish to lodge an application for international protection.", "28. According to the applicants, when talking to the border guards, they expressed fears for their safety. They told the border guards that they were from Chechnya. The first applicant submitted that in 2005 he had started to have problems with officers of the special services because his relatives had participated in the second Chechen war. Police officers had come to his home and taken him for questioning to a police station. His home had been raided by armed people wearing masks. Subsequently, he had decided to leave the Chechen Republic and had applied for international protection in Poland. Later, he had moved to Austria. In 2010 he had returned to Chechnya and had started working at the Department for Protection (participating in some counter-terrorist operations and provided security to governmental officials). He had quit that job, but before doing so, he had been asked if he was planning to join any illegal armed groups in Syria. The first applicant submitted that on one occasion he had been taken to the headquarters of the Department for Protection. He had been asked to become an informant for the Chechen security services but had refused to do so. On another occasion police officers had come to his home and forcibly taken him to a police station. He had again been asked to become an informant, but he had refused. He submitted that afterwards he had been tortured with electric shocks and by being beaten in his lumbar region (lower back), head and other parts of his body. After that he, together with the second applicant and their children, had left their home and had travelled to Belarus, with the aim of travelling onwards to Poland. They had told the border guards that they could not continue their stay in Belarus, as their visas had expired and that in practice it would be impossible for them to obtain international protection there. The border guards had then summarily turned them away, sending them back to Belarus.", "29. On both occasions on which the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country but that they were simply trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard observed that the applicants had cited (i) their desire to seek a better life in Europe for their big family and to join family members in Germany and obtain social benefits there, and (ii) the lack of employment opportunities in Chechnya.", "30. The applicants did not appeal against the administrative decisions issued on those occasions.", "31. At the same time, in April and May 2017, they also tried to enter Lithuania and – according to their statements to the Court – lodge an application for international protection there. The proceedings before the Lithuanian authorities were the subject of a separate application concluded by a judgment of the Court delivered in late 2018 (see M.A. and Others v. Lithuania, no. 59793/17, 11 December 2018).", "Interim measure indicated by the Court", "32. On 16 June 2017, when the applicants presented themselves at the border crossing at Terespol, their representative lodged a request under Rule 39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus. He indicated that, as Russian citizens, they had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where the first applicant would face the threat of torture or other forms of inhuman and degrading treatment.", "33. At 10.48 a.m. on 16 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 30 June 2017. The Court clarified that the indication that the applicants should not be removed to Belarus should be understood in such a way that when they presented themselves at a Polish border checkpoint their application for asylum should be received and registered by the Border Guard and forwarded for examination to the competent authorities. Pending examination of the asylum application, the applicants should not be sent back to Belarus. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicants were returned to Belarus at 11.25 a.m. The official note prepared by border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland in order to settle and raise their children there.", "Developments following the application of the interim measure", "34. On 20 June 2017 the applicants returned to the border checkpoint at Terespol, carrying with them an application for international protection and a copy of a letter informing their representative of the Court’s decision concerning the interim measure. Again, they were turned away and sent back to Belarus. The Government submitted that in the course of their conversation with the officers of the Border Guard the applicants had not expressed any need for international protection; rather, they had declared that they wished to settle in Europe owing to the lack of adequate employment opportunities in Chechnya.", "35. While the applicants were trying to apply for asylum, a Polish lawyer cooperating with the applicants’ representative sent a copy of the first applicant’s application for international protection via email, fax and ePUAP to the Border Guard at Terespol and to the Polish Border Guard headquarters in Warsaw. She also informed (by letter) of that fact the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human-rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based). In her letter she also made reference to the interim measure indicated by the Court on 16 June 2017 under Rule 39 of the Rules of Court (see paragraph 33 above). On 22 June 2017 the Deputy Director of the Department for Aliens at the Polish Border Guards’ headquarters answered the letter from the lawyer in question, indicating to her that an application for international protection could be submitted only at the Polish border by the applicant in person.", "36. On 23 June 2017 the Government requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, and nor had they given any reasons for such protection. They also maintained that as the applicants had not been admitted to Poland by the country’s border guards, they had never been legally in Poland in the first place and could therefore not be removed. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland. A similar approach was presented by the Government in their letter dated 28 June 2017.", "37. On 30 June 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that in the light of the submissions made to the Court, it considered that the applicants had lodged a request for international protection. At the same time the Court expressed concern as regards the Government’s refusal to register the applicants’ asylum applications. On 19 July 2017 the Court (the duty judge) extended the interim measure until 3 August 2017. On 3 August 2017 the duty judge extended the interim measure until further notice.", "38. In the period between 3 August and 11 December 2017 the applicants arrived at the border checkpoint at Terespol on at least three more occasions. They were turned away. The Government submitted that on one of those occasions the applicants had presented a document entitled “Request for international protection” prepared by their representative in Polish, but stated that they had not understood its contents as they did not speak Polish. The Government also alleged that while being interviewed by the border guards the applicants had made statements that contradicted the account of their history given in the document. The applicants also submitted to the Court a Russian-language version of the first applicant’s application for international protection (dated May 2017 and addressed to the Lithuanian authorities). The text of this document corresponds to the statements submitted in Polish.", "39. On 20 September 2017, when submitting observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous application. On 6 December 2017 the President of the Section refused their request.", "A request for a new interim measure concerning the second applicant", "40. On 13 December 2017 the applicants’ representative informed the Court that the previous day (12 December 2017) the applicants had again tried to lodge an application for international protection at the border checkpoint at Terespol. Again, decisions denying them entry had been issued. However, when on their way to catch the train that was to take them back to the city of Brest, in Belarus, the second applicant, who was at the time seven or eight months pregnant, had slipped and fallen. The applicants’ representative submitted that she had been taken to the hospital in Biała Podlaska, Poland and remained under the supervision of border guards. He also stated that she had been carrying a written application for international protection and had attempted to submit it to the officers of the Border Guard.", "41. Referring to the above information, the applicants’ representative lodged a fresh request under Rule 39 of the Rules of Court, asking the Court to indicate to the Government: 1) not to return the second applicant to Belarus, 2) not to obstruct the lodging of an asylum application by the second applicant and 3) to make sure that the second applicant and her foetus were properly examined by a qualified doctor and that they had access to the best available medical services.", "42. On 14 December 2017 the Court (the duty judge) decided to refuse the request in respect of point 3. With reference to points 1 and 2 of the request the Court reminded the Government that the interim measure indicated on 16 June 2017 and prolonged until further notice on 3 August 2017 was still in force.", "43. On the same day the second applicant was released from hospital and returned to Belarus. She lodged an appeal against the decision of 12 December 2017 (see paragraph 40 above) denying her entry into Poland. According to the information submitted to the Court, the proceedings concerning her appeal are still pending before the head of the National Border Guard.", "The disappearance of the first applicant and the procedure concerning the second applicant and her children", "44. During the period between October and December 2017 the applicants’ relatives residing in Chechnya received a number of summonses for the first applicant to appear before the police. In December 2017 those summonses were delivered to Brest, Belarus, where the applicants were residing. The first applicant was summoned to the police station in Brest and informed that he and his family had to leave Belarus. Otherwise, they would be deported and banned from entering the country again.", "45. The applicants left Belarus and travelled to Smolensk, Russia, where the first applicant was immediately detained by the police and – according to the information his wife received from their relatives in Chechnya –transferred to the town of Grozny in the Chechen Republic.", "46. The second applicant decided to return with her children to Belarus and to try again to lodge an application for international protection. After one unsuccessful attempt, on 7 January 2018 the border guards at Terespol received her application and forwarded it for review by the head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ). The second applicant and her children were placed in a refugee reception centre.", "The further whereabouts of the first applicant and his application for international protection", "47. On 20 May 2018 the applicants’ representative informed the Court that in February 2018 the first applicant had been released from detention in the Chechen Republic. According to the representative, the applicant had no knowledge as to where he had been detained. He alleged that he had been beaten by the personnel of the detention facility and provided photos of significant bruises on his body.", "48. In March 2018 the first applicant left Chechnya again and travelled to Belarus. On 20 March 2018 he travelled to Terespol and lodged an application for international protection. He was admitted to Poland and joined the second applicant and their children in a refugee reception centre.", "The applicants’ departure from Poland", "49. On 18 May 2018 the applicants voluntarily left the refugee reception centre and travelled to Germany. Owing to their departure the proceedings concerning their applications for international protection were discontinued (on 30 May 2018 with respect to the second applicant and her children and on 4 June 2018 with respect to the first applicant).", "50. On 7 June 2018 the German authorities lodged requests for the applicants to be transferred back to Poland under Regulation EU No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (“the Dublin III Regulation”). On 14 June 2018 the head of the Aliens Office agreed to examine the applicants’ applications for international protection. According to the information submitted to the Court, the applicants have not yet been transferred to Poland.", "51. On 29 August 2018, the President of the Section, following an application lodged by the Government, decided to lift the interim measure indicated to the Government in the applicants’ case.", "M.K. and Others v. Poland, application no. 43643/17 The applicants’ situation prior to the application for an interim measure", "The applicants’ situation prior to the application for an interim measure", "The applicants’ situation prior to the application for an interim measure", "52. The applicants Mr M.K. (“the first applicant”) and Mrs Z.T. (“the second applicant”) are Russian nationals. They are married. The remaining applicants are their three minor children.", "53. In the period from September 2016 to July 2017 the applicants travelled to the border crossing at Terespol on twelve occasions. According to the applicants, on each occasion they expressed a wish to lodge an application for international protection; on at least one occasion they were carrying that application in written form (a copy of the relevant document was submitted to the Court).", "54. According to the applicants, on one occasion (on 17 March 2017) their representative was also at the border checkpoint at Terespol, but was not allowed to meet them or be present during their questioning by the border guards. Their representative’s presence at the border was related to the events that were described above with respect to case no. 40503/17 (see paragraph 11 above).", "55. According to the applicants, when talking to the border guards, they expressed fears for their safety. The first applicant told the border guards that in the Chechen Republic he had been kidnapped, detained and tortured by people he did not know because of his alleged participation in the disappearance of an officer (or collaborator) of the local office of the Department for Combatting Organised Crime who had been a relative of people close to Ramzan Kadyrov, the head of the Chechen Republic. Later, the applicants and their children had gone to Poland and then to Austria. From Austria, where they had unsuccessfully applied for international protection, they had been deported to Russia. The first applicant had gone into hiding and the second applicant had gone back to her family village in Chechnya with their children. She stated that upon her return she had been harassed, threatened and questioned about her husband. On one occasion she had been kidnapped and detained for around twenty-four hours, during which time she had been interrogated and threatened with sexual violence. She had been asked about the whereabouts of her husband. The applicants presented to the border guards documents confirming that, as torture victims, they had developed post-traumatic stress disorder. They also stated that they could not continue their stay in Belarus, as their visas had expired and that in practice it was impossible for them to obtain international protection there. The border guards then summarily turned them away, sending them back to Belarus.", "56. On each occasion that the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country but were in fact trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard reported that the applicants had indicated, inter alia, their lack of money, together with their wish to: live in Poland, receive financial support, seek a better life in Europe, travel to Austria to join a family member residing there, settle and work in Germany, and educate their children in Europe.", "57. The applicants appealed at least once against the decisions issued on 17 March 2017 refusing entry. On 12 June 2017 the head of the National Border Guard upheld those decisions. The applicants appealed to the Warsaw Regional Administrative Court. The proceedings before that court are pending.", "Interim measure indicated by the Court", "58. On 20 June 2017, when the applicants presented themselves at the border crossing at Terespol, their representative lodged a request under Rule 39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus. She indicated that, as Russian citizens, the applicants had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where they would face the threat of torture and other inhuman and degrading treatment.", "59. At 10.14 a.m. on 20 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 4 July 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicants were nevertheless returned to Belarus at 11.25 a.m. The official note prepared by the border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland because they had not been able to find employment in Chechnya and because they wished to raise their children in Europe.", "Developments following the application of an interim measure", "60. On 27 June 2017 the Government requested the Court to lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, nor given any reasons to justify such protection. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland.", "61. On 4 July 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that – in the light of the submissions made to the Court (especially the documents attached to the request for an interim measure and the applicants’ submissions to the Court, copies of which had been sent to the Government) – it appeared that the applicants had tried to submit a request for international protection. On 21 July 2017 the duty judge extended the interim measure until further notice.", "62. In the period between 22 June and 6 September 2017 the applicants returned to the border checkpoint at Terespol at least seven further times. On one occasion they also tried to lodge an application for international protection at another border checkpoint (at Czeremcha-Połowce). Each time they were turned away. On two of those occasions they appealed against the decisions refusing entry. According to the information provided to the Court, the proceedings in respect of those cases are still pending before the head of the National Border Guard.", "63. The applicants submitted that on all those occasions they were carrying (i) a copy of a letter informing their representative of the Court’s decision concerning the interim measure and (ii) written applications for international protection. They had also clearly expressed a wish to lodge those applications. The Government alleged that the applicants had never expressed such a wish. The official notes prepared by the officers of the Border Guard stated that during their questioning the applicants had expressed a wish to live and work in Poland and to send their children to school there.", "64. On at least three of the occasions on which the applicants arrived at the Terespol and Czeremcha-Połowce border checkpoints, their representative sent a copy of their application for international protection via email and fax to the relevant units of the Border Guard. In her letter she also made a reference to the interim measure indicated by the Court under Rule 39 of the Rules of Court.", "65. On 11 September 2017, when submitting observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. On 13 November 2017 the President of the Section refused their request.", "66. On an unspecified date the applicants left Belarus in order to avoid deportation. They indicated that they were travelling within an undisclosed region. They submitted that they remained in hiding for fear of being tracked by the Chechen authorities.", "RELEVANT DOMESTIC LAWConstitutional provisions", "Constitutional provisions", "Constitutional provisions", "67. The 1997 Constitution contains the following provisions relating to the rights of foreigners:", "Article 37", "“1. Anyone under the jurisdiction of the Polish State shall enjoy the freedoms and rights ensured by the Constitution.", "2. Exemptions from this principle with respect to foreigners shall be specified by statute.”", "Article 56", "“1. Foreigners shall have the right of asylum in the Republic of Poland, in accordance with principles specified by statute.", "2. Foreigners who, in the Republic of Poland, seek protection from persecution, may be granted the status of a refugee, in accordance with international agreements to which the Republic of Poland is a party.”", "The Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland", "68. The procedure for granting refugee status and “tolerated stays” ( pobyt tolerowany ) to foreigners and their expulsion is regulated by the Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland ( Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej – “the 2003 Act”). The 2003 Act was amended on multiple occasions, in particular in order to transpose into Polish law Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third ‑ country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (see paragraphs 85-91 below).", "69. The grounds and conditions for granting refugee status or supplementary international protection are set out in sections 13-22 of the 2003 Act. The procedure for granting protection is set out in sections 23-54f of that Act.", "70. Under sections 24 and 29 of the 2003 Act the Border Guard is obliged to provide a foreigner who expresses a wish to apply for international protection in Poland with the possibility to lodge such an application and to facilitate it, inter alia, by ensuring the assistance of a translator and by giving – at the foreigner’s request or with their consent –access to representatives of international or non-governmental organisations assisting refugees. A person who has lodged an application for international protection is obliged to report to the reception centre indicated by the border guards (section 30(1) (5i) of the 2003 Act). That application for international protection will then be forwarded for examination to the head of the Aliens Office, who should decide on it within six months (section 34(1) of the 2003 Act).", "71. The foreigner in question can lodge an appeal against a decision issued by the head of the Aliens Office with the Refugee Board ( Rada do Spraw Uchodźców ). A decision issued by the Refugee Board can be appealed against by lodging an appeal with the Warsaw Regional Administrative Court and – as a last resort – a cassation appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ).", "72. If an application for international protection and an appeal against a decision of the head of the Aliens Office have been lodged, the enforcement of the return procedure is not initiated and any procedure that has already been initiated is suspended. An appeal lodged with an administrative court does not have automatic suspensive effect.", "The Aliens Act of 12 December 2013", "73. In the event that a foreigner who presents himself or herself at a border checkpoint does not express a wish to lodge an application for international protection and does not have a valid document allowing him or her to enter Poland, the border guards must instigate a refusal-of-entry procedure, which is regulated by sections 33 and 34 of the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – “the 2013 Act”).", "74. Under those provisions a decision refusing entry is issued by the head of the relevant unit of the Border Guard ( Komendant placówki Straży Granicznej ) and is executed immediately. A person who has been denied entry into Poland can appeal against that decision to the head of the National Border Guard and, subsequently, lodge an appeal with the Warsaw Regional Administrative Court and a cassation appeal with the Supreme Administrative Court. None of those remedies has suspensive effect.", "75. Under section 33, subsection 1, of the 2013 Act, the proceedings prior to the issuance of a refusal-of-entry decision are limited to hearing the foreigner in question and the persons travelling with him or her, a review of the documents in his or her possession, verifying the relevant registries and obtaining necessary information from other State institutions and relevant entities. Subsection 2 of this section provides that in cases in which there is no doubt that the foreigner does not comply with the conditions of crossing the border, the proceedings may be limited only to a review of the documents in his or her possession.", "76. On 17 May 2018, in one of the cases concerning appeals against the refusal-of-entry decisions issued by the head of the Border Guard Unit at Terespol (namely case no. II OSK 2766/17), the Supreme Administrative Court held that the situation provided in subsection 2 of section 33 of the 2013 Act was to be treated as extraordinary and that it did not arise in situations in which the foreigner in question raised any claims concerning a need for international protection. The administrative court indicated that the fact that the foreigner in the case before it had raised in her appeal the fact that she was an asylum-seeker proved that her case raised some doubts and that the administrative body should have investigated it further. The Supreme Administrative Court also indicated that if the administrative body had decided to question the foreigner, it could not have limited itself to drafting a brief official note, but would have been obliged to prepare a record of the questioning.", "77. Furthermore, on 26 July 2018 (case no. II OSK 1752/18) the Supreme Administrative Court stressed that the fact that the foreigner had attempted to enter Poland numerous times and that he or she had demanded to be heard in the presence of his or her lawyer should have resulted in a more detailed examination of his or her case by the Border Guard. It also stressed that the interpretation of the 2013 Act had to take into consideration the principle of non-refoulement, which constituted a starting point for the interpretation of the rights and obligations of foreigners presenting themselves at the border and of the authorities responsible for border control.", "EUROPEAN UNION LAWThe Treaty on the Functioning of the European Union", "The Treaty on the Functioning of the European Union", "The Treaty on the Functioning of the European Union", "78. Article 78 § 1 of the Treaty on the Functioning of the European Union, as amended by the Treaty of Lisbon, which came into force on 1 December 2009, provides:", "“The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.”", "The Charter of Fundamental Rights of the European Union", "79. The Charter of Fundamental Rights, which has formed part of the primary law of the European Union since the entry into force of the Treaty of Lisbon, contains an express provision guaranteeing the right to asylum. Article 18 of the Charter provides:", "“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).”", "80. Article 19 of the Charter provides:", "Protection in the event of removal, expulsion or extradition", "“1. Collective expulsions are prohibited.", "2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”", "The 1985 Schengen Agreement", "81. Article 17 of the Agreement provides:", "“In regard to the movement of persons, the Parties shall endeavour to abolish the controls at the common frontiers and transfer them to their external frontiers. To that end, they shall endeavour to harmonise in advance, where necessary, the laws and administrative provisions concerning the prohibitions and restrictions which form the basis for the controls and to take complementary measures to safeguard security and combat illegal immigration by nationals of States that are not members of the European Communities.”", "82. Article 20 of the Agreement provides:", "“The Parties shall endeavour to harmonise their visa policies and the conditions for entry onto their territories. In so far as is necessary, they shall also prepare the harmonisation of their rules governing certain aspects of the law on aliens in regard to nationals of States that are not members of the European Communities.”", "Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code)", "83. Article 3 of Regulation (EU) 2016/399 provides:", "“This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:", "...", "(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement .”", "84. Article 4 of the Regulation stipulates:", "“When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.”", "Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted", "85. The Directive sets detailed standards for recognising third-country nationals and stateless persons as refugees.", "86. Article 2 (d) defines a refugee as", "“... a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it ...”", "87. Article 2 (h) of the Directive clarifies that", "“‘application for international protection’ means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately”", "88. Article 21 § 1 of the Directive stipulates:", "“Member States shall respect the principle of non-refoulement in accordance with their international obligations.”", "Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection", "89. Article 3 § 1 of Directive 2013/32/EU provides:", "“This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection.”", "90. Article 8 of the Directive stipulates:", "“1. Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure.", "2. Member States shall ensure that organisations and persons providing advice and counselling to applicants have effective access to applicants present at border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organisations and persons in those crossing points and in particular that access is subject to an agreement with the competent authorities of the Member States. Limits on such access may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the crossing points concerned, provided that access is not thereby severely restricted or rendered impossible.”", "91. Article 9 of the Directive regulates the right of a person who has lodged an application for international protection to remain in the member State in which he or she lodged the application. It provides:", "“1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit.", "2. Member States may make an exception only where a person makes a subsequent application referred to in Article 41 or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country or to international criminal courts or tribunals.", "3. A Member State may extradite an applicant to a third country pursuant to paragraph 2 only where the competent authorities are satisfied that an extradition decision will not result in direct or indirect refoulement in violation of the international and Union obligations of that Member State.”", "RELEVANT INTERNATIONAL LAWThe 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”)", "The 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”)", "The 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”)", "92. Article 1 A and Article 33 § 1 of the Geneva Convention provide:", "Article 1 A", "“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”", "Article 33 § 1", "“No Contracting State shall expel or return (‘ refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”", "93. In its Note on International Protection of 13 September 2001 (A/AC.96/951, § 16), the Office of the United Nations High Commissioner for Refugees (UNHCR), which has the task of monitoring the manner in which the States Parties apply the Geneva Convention, indicated that the principle of non-refoulement laid down in Article 33, was:", "“... [A] cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human-rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum ‑ seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”", "94. In its Advisory Opinion on the Extraterritorial Application of Non ‑ Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol adopted on 26 January 2007, the UNHCR stipulated:", "“7. The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions”, and non-admission at the border in the circumstances described below. This is evident from the wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return ( refoulement ) “in any manner whatsoever” ... It applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom related to one or more of the grounds set out in the 1951 Convention, or from where he or she risks being sent to such a risk.", "8. ...As a general rule, in order to give effect to their obligations under the 1951 Convention and/or 1967 Protocol, States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures.", "9. ... the obligation under Article 33(1) of the 1951 Convention not to send a refugee or asylum-seeker to a country where he or she may be at risk of persecution is not subject to territorial restrictions; it applies wherever the State in question exercises jurisdiction. ...", "24. ... the purpose, intent and meaning of Article 33(1) of the 1951 Convention are unambiguous and establish an obligation not to return a refugee or asylum-seeker to a country where he or she would be [at] risk of persecution or other serious harm, which applies wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State.”", "Other UN materials", "95. The General Assembly of the United Nations stated in Article 3 of its Declaration on Territorial Asylum, adopted on 14 December 1967 (A/RES/2312 (XXII)), that:", "“No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.”", "96. On 19 September 2016, the General Assembly of the United Nations adopted the New York Declarations for Refugees and Migrants, in which it stated:", "“24. ... We will ensure that public officials and law enforcement officers who work in border areas are trained to uphold the human rights of all persons crossing, or seeking to cross, international borders ... We reaffirm that, in line with the principle of non-refoulement, individuals must not be returned at borders.", "...", "33. Reaffirming that all individuals who have crossed or are seeking to cross international borders are entitled to due process in the assessment of their legal status, entry and stay, we will consider reviewing policies that criminalize cross-border movements.", "...", "65. We reaffirm the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto as the foundation of the international refugee protection regime. ...”", "Council of Europe materials", "97. Section X of the Guidelines on human-rights protection in the context of accelerated asylum procedures (adopted by the Committee of Ministers of the Council of Europe on 1 July 2009 at the 1062nd meeting of the Ministers’ Deputies) reads:", "“1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy.", "2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.”", "MATERIAL DESCRIBING SITUATION AT THE BORDER CHECKPOINT IN TERESPOLThe Ombudsman’s visits", "The Ombudsman’s visits", "The Ombudsman’s visits", "98. On 11 August 2016 representatives of the Polish Ombudsman ( Rzecznik Praw Obywatelskich ) visited the border checkpoint at Terespol and conducted an unannounced inspection. The representatives were allowed to observe interviews conducted by officers of the Border Guard with foreigners who had arrived at the border without valid visas or other documents allowing them to enter Poland.", "99. The representatives of the Ombudsman observed seventy-nine interviews. They noted that the interviews had been conducted at four stands, three of which had been placed at such a short distance from each other that interviews could have been easily overheard by third parties (such as other foreigners). The interviews had been conducted in Russian and had lasted, on average, between one and four minutes.", "100. The representatives of the Ombudsman noted that during sixty-two of the interviews observed by them, the individuals interviewed had not expressed any intention of applying for international protection in Poland, and nor had they provided information that could have suggested that they had come to Poland with such an intention. During five interviews the representatives of the families in question had explicitly declared to the border guards their intention of lodging an application for international protection. Only one of those families had been allowed to lodge such an application. During a further twelve interviews, the foreigners had given reasons for leaving their country that – according to the representatives of the Ombudsman – could have indicated that they had experienced persecution within the meaning of the Geneva Convention or had been in risk of their lives, personal freedom or safety. Furthermore, of this group, only one family had been given an opportunity to lodge an application for international protection.", "101. The report (which was published in English) contained the following description of the observed interviews:", "“In each case, whenever foreigners’ answers mentioned risks persisting in the country of origin, officers asked several additional questions about, among other things, specific incidents that could prove such risks and the fact whether such incidents were reported, for example, to law enforcement agencies. In the view of inspectors, although that is a subjective opinion, officers did not attach much importance to information provided in such cases by foreigners and they were focusing more on proving that the reason for leaving the country was of [an] economic nature. After questions about possible risks, they very often moved on to ask further about a profession performed in the country and the intention to find employment in Poland. The declaration of such an intention itself, although again that is the subjective opinion of inspectors, in many cases sufficed for an officer to assume that a given foreigner came to Poland for economic reasons, despite his/her concerns of other nature.”", "102. The representatives of the Ombudsman also referred to the way in which the course of the interviews had been documented by the officers of the Border Guard. They stated (in English):", "“The course of each interview is documented in the form of an entry in a log that an officer maintains ... Such an entry contains only information concerning foreigners’ personal details and details of other members of family who accompany him/her, the country of origin, passport numbers and, what is most important, the purpose that the foreigner gives for coming to Poland. The last piece of information is recorded in the form of laconic statements, such as going to Germany; doesn’t want to live with her husband; has no money; wants to live in Poland. In case the interview results in the refusal to enter the territory of Poland, identical information concerning the purpose of arrival is included in the memo [the official note]. The memo is attached to the files of the administrative proceedings in which the decision is issued to refuse the right of entry. This way of documenting interviews which have paramount importance for a possible recognition of a foreigner as a person seeking protection against persecution in the country of origin should be deemed highly insufficient. Firstly, based on an entry made by an officer, it is not possible to reconstruct, even roughly, the course of the interview. Secondly, a foreigner has no chance to inspect the entry, and hence cannot in any way refer to it or set the information right.”", "103. The report of the inspection concluded that interviews aimed at determining the purpose of each foreigner’s arrival in Poland were conducted in conditions which did not provide at least a minimum degree of privacy. It reiterated that if during an interview a foreigner referred to circumstances indicating an intention to apply for international protection in Poland, the relevant application should be accepted from them for review and that, under domestic law, officers of the Border Guard did not have the authority to perform any preliminary verification of data provided by the foreigners in this respect. The report explicitly stated that the inspection had revealed certain cases when Border Guard officers had not allowed foreigners to lodge an application for international protection even though they had either directly declared such an intention during their respective interview or had mentioned circumstances that may have indicated that they had been persecuted in their country of origin.", "104. On 15 May 2018 a second visit by the representatives of the Polish Ombudsman took place at the border checkpoint at Terespol. The employees of the Ombudsman’s office were present during eight interviews concerning eighteen foreigners out of a total of thirty-two persons who arrived at the Terespol border crossing on that day without carrying a valid visa or other documentation allowing them to enter Poland. They noted that during six of those interviews (concerning sixteen persons), the foreigners in question had expressed a wish to lodge an application for international protection and that in all the cases they had been allowed to lodge applications and had been admitted to Poland. In one case, this had happened only after the Ombudsman’s representatives had indicated to the officers of the Border Guard their doubts concerning the course of the respective interview; the interview had then been repeated. Those sixteen persons had all been foreigners who had lodged applications for international protection on that day. No application had been lodged by any of the persons interviewed at the counter at which no representative of the Ombudsman had been present.", "105. The report of the Ombudsman’s office also noted that a number of applications for international protection were accepted for review on 15 May 2018 – a significantly higher than on any other day in the two-week period preceding the visit. According to official data submitted by the Border Guard, in the period between 1 and 14 May 2018, the maximum number of applications lodged on one day was two (concerning between one and six persons per day).", "Visit by representatives of the Children’s Ombudsman", "106. On 10 January 2017 the Terespol border crossing was inspected by representatives of the Children’s Ombudsman ( Rzecznik Praw Dziecka ).", "107. The representatives of the Children’s Ombudsman were allowed to observe interviews conducted with ten families who did not have documents allowing them to enter Poland. They noted that the conditions in which the interviews were conducted had improved since the inspection by the representatives of the Ombudsman. Conversations with the border guards now took place in a separate room with three desks, at which interviews were carried out simultaneously. The desks were separated from each other by screens.", "108. The inspectors noted that members of six families interviewed in their presence had explicitly stated that they wanted to apply for international protection in Poland. All of them had been afforded that possibility. Their applications had been accepted for review and the families were allowed to enter Poland. The other four families had not expressed any wish to apply for international protection, either directly or indirectly. As discovered later by the inspectors, only the six families that had expressed a wish to apply for international protection in their presence and one person travelling alone were permitted to lodge such applications on that day.", "109. The representatives of the Children’s Ombudsman talked also to a dozen or so other families who had been interviewed by the officers of the Border Guard on that day, but not in the presence of the inspectors. The members of six of those families told the inspectors that they had tried to lodge an application for international protection numerous times but had been unsuccessful. They described cases of torture, threats and other forms of persecution that, according to the inspectors, should have justified the acceptance of such applications from them for review. All those families claimed that they had given the same account of their circumstances to the border guards.", "110. The representatives of the Children’s Ombudsman asked the head of the Terespol Border Guard Unit for copies of the official notes prepared during the interviews with those families and compared the content of those notes with the statements that the foreigners gave them just minutes after being interviewed by the border guards. In all cases they found significant discrepancies between the statements given to them by the foreigners and the content of the notes drafted by the border guards. For instance, a woman (called “Z.K.” in the report) told the representatives of the Children’s Ombudsman that her husband had been killed by police officers and that her son had been detained and tortured numerous times. The official notes – drafted when she had, on several occasions, presented herself at the border – recorded that she had indicated that she had had problems looking after her family since the death of her husband, that she wished to raise and educate her children in Poland and that she had no prospects in her own country. Another woman (who had tried to cross the border on the same day) told the representatives of the Children’s Ombudsman that her husband had been abducted and accused of being a follower of Wahhabism, whereas the official notes concerning her arrivals at the Polish-Belarusian border stated that she had told the border guards that she had had no employment or money in Chechnya, that she wished to provide her child with better living conditions and education, and that she wanted to join her sisters, who resided in Germany.", "111. The report concluded its account of the above-mentioned conversations by indicating:", "“Although it is obvious that by no means in all cases would the reasons for applying for international protection cited by the foreigners in fact justify the granting of such protection (which could depend on a number of factors, including the possibility of obtaining legal protection in the country of origin or the possibility of relocating within this country), it is unquestionable that before the representatives of the Children’s Ombudsman those foreigners indicated a threat to their personal security. This kind of circumstances, if declared in front of the officers of the Border Guard, should result in the acceptance [for review] of applications for international protection from those foreigners.”", "It furthermore stated that:", "“In this context it should be emphasised that it seems incomprehensible and contrary to the principles of logic and life experience that the foreigners who presented themselves for border control numerous times would not have indicated such circumstances to the officers of the Border Guard (on whose decision depended the question of whether their applications for international protection would be received [for review] and whether they would be allowed to enter the territory of Poland), if they were capable of expressing them freely, a dozen or so minutes after leaving the border control, in front of the representatives of the Children’s Ombudsman present at the border crossing on [that day].”", "112. Moreover, after the applications for international protection were accepted for review from the six families mentioned above, the representatives of the Children’s Ombudsman talked to members of four of those families. All of them stated that they had been at the Terespol border checkpoint numerous times and that on all of those occasions they had indicated a wish to apply for international protection. Until that day, they had been denied such a possibility. They stated that the statements given by them on those previous occasions had not differed from the ones made that day in the presence of the inspectors.", "113. The representatives of the Children’s Ombudsman asked the head of the Terespol Border Guard Unit for copies of the official notes prepared on the previous occasions on which those families had presented themselves at the Polish-Belarusian border and compared them with the statements that the foreigners had given on 10 January 2017 and that had been recorded in their applications for international protection submitted on that day. They found that there were significant differences between the content of those documents and the statements made on the latter date. For instance, one of the men who had applied for international protection on 10 January 2017 had stated that he had asked for refugee status, as he could not return to his country of origin. He had submitted that he had been a taxi driver and had been accused of transporting militants. He said that two of his brothers had been killed and that he was wanted by the Chechen authorities. He had expressed fear for the security of his children and family. The official notes drafted during his previous interviews reported that before 10 January 2017 he had declared to the officers of the Border Guard that he lacked money and that he wanted to work, live and educate his children in Poland.", "114. In the conclusion of its report on the inspection the Office of the Children’s Ombudsman stated that the inspection had not directly confirmed that foreigners at the Terespol border checkpoint had been denied the possibility to lodge an application for international protection (as all of the interviews conducted in the presence of the inspectors had been conducted correctly). The report did however, indicate that the results of the conversations conducted with the foreigners in the interviews in which the inspectors had not participated – given comparison that decisions denying them entry had been issued – raised the highest concern. The Children’s Ombudsman indicated, inter alia, that it was advisable to change the form in which interviews with foreigners were documented from that of official notes to that of more detailed minutes, which would have to be read to the foreigner and signed by him or her.", "Statement given by the Minister of the Interior and Administration on 31 August 2016", "115. On 31 August 2016 the Polish Minister of the Interior and Administration was interviewed in a television programme in which he was asked about the situation at the Terespol border checkpoint. He told the journalist interviewing him that the policy of the Polish government was aimed at protecting Polish citizens against an influx of Muslim refugees and that the government would not be pressured by those who wanted to bring the migration crisis onto Polish territory. When asked specifically about the claims of those at the Terespol border checkpoint that they were fleeing the dangers of a totalitarian regime, the Minister indicated that there was no ongoing war in Chechnya and that they were people heading to Western Europe. He stated that the Chechens at the Polish-Belarusian border at that time would not be accepted into Poland.", "MATERIAL DESCRIBING ASYLUM PROCEDURE IN BELARUS", "116. In its annual report on the state of the world’s human rights in 2017, Amnesty International stated that Belarus lacked a functioning asylum system and repeatedly handed over individuals seeking international protection to the authorities of countries where they were at real risk of torture or other ill-treatment.", "117. In its annual report on the human-rights situation in 2017, Human Rights Watch stated:", "“Belarus failed to provide meaningful protection to hundreds of asylum-seekers, mostly from the Russian republic of Chechnya, who arrived in Belarus with the aim of crossing the border into Poland and requesting asylum. Belarus lacks a functioning asylum system. During 2017 it returned at least two asylum-seekers from Chechnya back to Russia, which authorities view as a safe country of origin, putting them at grave risk of ill-treatment.”" ]

[ "THE LAW", "JOINDER OF THE APPLICATIONS", "118. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical legal issues under the Convention.", "ADMISSIBILITYThe issue of jurisdiction under Article 1 of the Convention", "The issue of jurisdiction under Article 1 of the Convention", "The issue of jurisdiction under Article 1 of the Convention", "119. Article 1 of the Convention provides:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "The parties’ submissions", "(a) The Government", "120. In their submissions to the Court, the Government pointed out that the present cases were of a specific character as they involved decisions to refuse entry into Poland issued by the border authorities at the border checkpoints on the Polish-Belarusian border. The Government indicated that the applicants had been on Polish territory only briefly and had not been legally admitted to this territory. As a result, the jurisdiction of the Polish authorities over them had been limited to the issuance of the decisions refusing them entry.", "121. The Government submitted that in this respect the present cases were different from a number of previous cases examined by the Court ( Khlaifia and Others v. Italy [GC], no. 16483/12, 15 December 2016; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012; Louled Massoud v. Malta, no. 24340/08, 27 July 2010; Suso Musa v. Malta, no. 42337/12, 23 July 2013; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, ECHR 2007 ‑ II) in which the applicants were under the territorial jurisdiction of the Contracting States for an extended amount of time and – particularly in cases concerning irregular migration by sea – were at imminent risk of losing their life or health if returned to the sea or the maritime border.", "(b) The applicants", "122. The applicants submitted that under Article 1, the Convention applied to all persons under a Contracting Party’s jurisdiction, which was not limited to its territory. They argued that the Convention applied in all situations in which the effective control by the authorities of the Contracting Party was exercised.", "123. The applicants pointed out that the Terespol border checkpoint, where they had been subjected to border checks, was situated 2,600 metres into Polish territory and that the officers of the Border Guard, who conducted the border control of foreigners, exercised full authority over foreigners seeking entry into Poland.", "124. Moreover, the applicants submitted that under both international law (including the Geneva Convention) and under European Union law (including Directive 2013/32/EU and Regulation (EU) 2016/399 (“the Schengen Borders Code”)) it was clear that the principle of non-refoulement protected persons who were subjected to border checks even before they were allowed entry into a State by its border authorities.", "(c) Third-party interveners", "125. The third-party interveners submitted that where the State exercised effective authority or control over persons, it also exercised jurisdiction – thus triggering the protective obligations of the State under the Convention.", "The Court’s assessment", "(a) General principles governing jurisdiction within the meaning of Article 1 of the Convention", "126. Under Article 1 of the Convention, the Contracting States undertake to “secure” to everyone within their “jurisdiction” the rights and freedoms defined in Section I of the Convention (see Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII). The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it that give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).", "127. The jurisdiction of a State, within the meaning of Article 1, is essentially territorial (see Banković and Others, §§ 61 and 67, and Ilaşcu and Others, § 312, both cited above). It is presumed to be exercised normally throughout the State’s territory (see Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 103, 13 February 2020).", "128. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç and Others, cited above, § 67; and Ilaşcu and Others, cited above, § 314). It has established, in particular, that whenever a State, through its agents operating outside its territory, exercises control and authority over an individual, and thus jurisdiction, it is under an obligation to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to his or her situation (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 133-37, ECHR 2011; Hirsi Jamaa and Others, cited above, § 74; Hassan v. the United Kingdom [GC], no. 29750/09, § 74, ECHR 2014; and M.N. and Others v. Belgium ( dec .) [GC], no. 3599/18, §§ 102-09 and 120, 5 March 2020).", "(b) Application of the above principles to the present case", "129. It is not disputed before the Court that the events in issue occurred at the railway border checkpoint at Terespol and – on one occasion – the road border checkpoint at Czeremcha-Połowce. Both checkpoints are located at the border with the neighbouring State and are operated by the relevant units of the Polish Border Guard. In consequence, the presumption of the jurisdiction of the Polish State applies to all actions taken with respect to the applicants presenting themselves at those checkpoints.", "130. Moreover, the events in question concern the procedure followed in respect of border checks, granting or refusing the applicants entry into Poland, and accepting for review their applications for international protection. All those procedures were conducted exclusively by the officials of the Polish State and were regulated by domestic and EU law. It is therefore evident that the actions complained of by the applicants were attributable to Poland and thereby fell within its jurisdiction within the meaning of Article 1 of the Convention (see M.A. and Others v. Lithuania, no. 59793/17, § 70, 11 December 2018).", "131. In addition, Poland cannot circumvent its “jurisdiction” under the Convention by pointing out that the decisions concerning the refusal of entry into Poland were taken within a few hours of the applicants’ arrival on Polish territory and, in consequence, that the control process in respect of the applicants was of relatively short duration (see paragraph 120 above).", "132. Accordingly, the Court concludes that the events giving rise to the alleged violations fall within Poland’s “jurisdiction”, within the meaning of Article 1 of the Convention.", "Exhaustion of domestic remedies", "133. The Government submitted that the applications were inadmissible due to the non-exhaustion of domestic remedies.", "The parties’ submissions", "(a) The Government", "134. The Government submitted that the applicants had failed to appeal against most of the decisions refusing them entry into Poland. They indicated that the option of appealing against those decisions to the head of the National Border Guard had been available to the applicants and would have resulted in the re-examination of the applicants’ cases. Moreover, in the event that the head of the National Border Guard upheld the decisions, the applicants could have lodged an appeal with the administrative court.", "135. The Government indicated that in respect of a small number of instances in which the applicants had appealed against the refusal to grant them entry, the relevant proceedings were still pending before either the head of the National Border Guard (see paragraphs 43 and 62 above) or before the Warsaw Regional Administrative Court (see paragraphs 14, 18 and 57 above). Therefore, in the Government’s opinion, all three applications were premature.", "136. The Government also referred to examples of judgments of the Warsaw Regional Administrative Court in which decisions concerning refusal of entry to Poland had been quashed. They submitted that the existence of such judgments proved that an appeal to the administrative court could have constituted an effective remedy in cases similar to the situation of the applicants.", "137. Referring to the Guidelines on Human Rights Protection in the Context of Accelerated Asylum Procedures adopted by the Committee of Ministers (see paragraph 97 above), the Government argued that in the present cases the applicants had not presented any arguable claim that they would have faced a risk of persecution or inhuman and degrading treatment in Belarus or Russia and that the lack of suspensive effect of an appeal against the decision on the refusal of entry therefore did not render this remedy ineffective for the purposes of Article 35 § 1 of the Convention.", "(b) The applicants", "138. The applicants submitted that the right to lodge an appeal against the decision refusing them entry did not constitute an effective remedy and that no other effective remedy was available to them. They indicated that an appeal to the head of the National Border Guard would not provide them with an independent and timely review of their cases that would protect them from being exposed to treatment that was in breach of Article 3 of the Convention.", "139. In the first place, the applicants stressed that decisions concerning the refusal to grant them entry were immediately enforceable and that an appeal against them would not have suspensive effect. Moreover, such an examination would take considerable time. The applicants submitted that in all cases in which they had appealed, the head of the National Border Guard had upheld the decisions issued at first instance, and the proceedings were pending before the administrative courts. Such proceedings could take a few years to reach a conclusion. Given that they had been returned to Belarus, during this period the applicants would be deprived of protection from treatment that was in breach of Article 3 of the Convention. Moreover, as they had exceeded their ninety-day visa-free period of residence in Belarus, they were under constant threat of being deported to Russia, where they risked being subjected to torture and inhuman and degrading treatment.", "140. In addition, they submitted that the National Border Guard was a hierarchical formation, subordinate to and supervised by the Minister of the Interior and Administration and as such implemented a wider governmental policy of not accepting for review applications for international protection submitted by refugees presenting themselves at the Polish border. Therefore, in the applicants’ opinion, any review executed by the head of the National Border Guard would not be independent.", "141. The applicants also alleged that when they had been at the border checkpoints at Terespol and Czeremcha-Połowce they had not been duly informed of their right to appeal against the decisions of the officers of the Border Guard. They also submitted that the fact that they had been returned to Belarus had hindered the possibility of their lodging an appeal. They added that it was only thanks to the assistance of Polish lawyers that they had been able to lodge appeals against some of the decisions issued in their cases.", "The Court’s assessment", "(a) General principles", "142. The Court has indicated numerous times that the rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation (see A.E.A. v. Greece, no. 39034/12, § 47, 15 March 2018). Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies, depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of the Convention does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; however, if it is not, its powers and the guarantees that it affords are relevant in determining whether the remedy before it is effective (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI, and Gebremedhin [Gaberamadhien], cited above, § 53).", "143. In view of the importance that the Court attaches to Article 3 of the Convention and the irreversible nature of the damage that may result if a risk of torture or ill-treatment materialises, it has already held that the effectiveness of a remedy available to an applicant who alleges that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment breaching Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII), and a particularly prompt response (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004 ‑ IV (extracts)); it also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002 ‑ I; Gebremedhin [Gaberamadhien], cited above, § 66; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011; and A.E.A. v. Greece, cited above, § 69).", "144. The Court has reached a similar conclusion in relation to complaints made under Article 4 of Protocol No. 4 to the Convention, stating that a remedy against an alleged violation of this provision does not meet the requirements of effectiveness if it does not have suspensive effect. The notion of an effective remedy under the Convention requires that the remedy be capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible (see Čonka, § 79, and Hirsi Jamaa and Others, § 199, both cited above).", "(b) Application of the above principles to the present case", "145. The Court observes that all the complaints raised by the applicants in the present cases (whether made under Article 3 of the Convention, Article 4 of Protocol No. 4 to the Convention, Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 or under Article 34 of the Convention) relate to the same circumstances, namely the fact that the applicants were returned from the Polish border and sent back to Belarus without an asylum procedure being instigated. Therefore, the effectiveness of the remedy available to them has to be examined with regard to the execution of this measure, jointly for all of the complaints.", "146. The Court notes that the applicants had the possibility of lodging an appeal against each of the decisions concerning refusal of entry within fourteen days of being informed of those decisions. However, there is no dispute that under Polish law such appeals would not have had suspensive effect on the return process (see paragraph 74 above). It follows that the applicants did not have access to a procedure by which their personal circumstances could be independently and rigorously assessed by any domestic authority before they were returned to Belarus (see M.A. and Others v. Lithuania, cited above, § 84).", "147. In the instant case the applicants’ complaints concerned allegations that their return to Belarus would expose them to a real risk of suffering treatment contrary to Article 3 of the Convention. Therefore, the Court considers that the sole fact that an appeal against the decision on refusal of entry would not have had suspensive effect (and, in consequence, could not have prevented the applicants from being turned away to Belarus) is sufficient to establish that such an appeal – and any further appeals to the administrative court that could have been brought subsequently to it – did not constitute an effective remedy within the meaning of the Convention (see paragraph 143 above). Consequently, the Court does not deem it necessary to consider the remainder of the applicants’ arguments concerning the lack of adequate information and legal assistance in the appeal procedure, the lack of independence of the head of the National Border Guard, the potential length of the proceedings before the administrative courts, or the obstacles resulting from the need to lodge such an appeal from abroad.", "148. Accordingly, the Court dismisses the Government’s objection concerning the non-exhaustion of domestic remedies.", "Conclusion on admissibility", "149. The Court further notes that the applications are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds and must therefore be declared admissible.", "ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "150. The applicants complained that they had been exposed to the risk of torture or inhuman or degrading treatment in Chechnya as a result of having been returned to Belarus, from where they would probably be sent back to Russia, and that their treatment by the Polish authorities had amounted to degrading treatment. They relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "151. The Court observes that the applicants’ arguments focus on two different aspects of the alleged violation of Article 3 of the Convention: firstly, the risk that they would suffer inhuman and degrading treatment when sent back to Belarus and, subsequently, to Russia, and the fact that despite that risk the Polish authorities sent them back to Belarus without having properly reviewed their claims; and, secondly, the treatment of the applicants by the Polish authorities during the so-called “second line” border-control procedure. With respect to the latter aspect of this complaint, the applicants argued that the whole situation – that is to say, the fact that the statements they made at the border were bluntly disregarded and the fact that they were denied the procedure to which they were entitled under the law and instead returned to Belarus – constituted degrading treatment.", "Alleged violation of Article 3 of the Convention on account of the applicants being denied access to the asylum procedure and exposed to a risk of inhuman and degrading treatment and torture in ChechnyaThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "152. The applicants did not contest the Government’s submission that the Polish authorities were bound by both the domestic legislation and EU law regulating border checks (see paragraph 158 below). They noted, however, that all the legislation cited by the Government provided the protection of fundamental rights – particularly in respect of the non-refoulement principle. They submitted that the actions taken at the border checkpoints at Terespol and Czeremcha-Połowce had violated those provisions.", "153. The applicants reiterated that each time that they had been interviewed at the second line of border control, they had expressed their wish to apply for international protection and had presented their respective accounts of undergoing persecution in Chechnya. In their opinion, the officers of the Border Guard had been bound to treat them as persons in search of international protection whose claims under Article 3 of the Convention should have been heard by the relevant domestic authority. Instead, the border guards had disregarded their statements and – in some cases – written applications for international protection. The applicants submitted that such a practice had been routine at the Polish-Belarusian border crossing at Terespol.", "154. The applicants also argued that the official notes drafted by the officers of the Border Guard did not accurately reflect the content of the statements given by them and should not be regarded as constituting valid evidence of those statements. They noted that the official notes had been drafted in Polish (a language that the applicants did not understand) and had not been signed by them. They cited the decision of the Warsaw Regional Administrative Court of 2 June 2017 (case no. IV SA/Wa 3021/16), in which the domestic court had held that owing to its significance for the decision to refuse entry, each interview conducted at the border should have been recorded in the form of minutes signed by both the officer of the Border Guard and the foreigner interviewed.", "155. The applicants alleged that their return to Belarus had put them at risk of being deported to Chechnya owing to the fact that Belarus was not a safe country for refugees from Russia. They cited official statistics according to which all applications for international protection made by Russian citizens in Belarus since 2004 had been refused. They also cited a few instances in which Russian citizens who had applied for international protection in Belarus (or had unsuccessfully tried to apply for it at Polish ‑ Belarusian border crossings and had returned to Belarus) had been deported to Russia or handed over directly to the Russian authorities. They stressed that in many of those cases the procedural rights of the persons deported or handed over to the Russian authorities had been disregarded.", "156. The applicants submitted that they all had a history of being persecuted in Chechnya and had presented the border authorities with written statements concerning those facts, as well as – in respect of the applicant in case no. 40503/17 and the first and second applicants in case no. 43643/17 – psychologists’ opinions indicating that they were suffering the psychological consequences of being torture victims. The applicants relied on a number of reports describing the general situation in Chechnya as comprising extrajudicial executions, forced disappearances, the widespread use of torture, mistreatment and illegal detention. They indicated that instances of serious human rights abuses were not properly investigated by the Russian authorities. In the applicants’ opinion, those reports supported their claims related to their fear of being persecuted if returned to the Chechen Republic.", "157. In addition, the applicants, relying on I.K. v. Austria (no. 2964/12, 28 March 2013), stated that according to the Court’s case ‑ law, the sole fact that Russia was a Party to the Convention did not automatically mean that the expulsion of asylum-seekers to Russia could not be considered to constitute a violation of Article 3 of the Convention.", "(b) The Government", "158. The Government noted that the Polish-Belarusian border was at the same time the external border of the European Union. In consequence, the authorities that conducted border checks were bound by both domestic legislation and European Union law ( inter alia, the Schengen Borders Code). The Government also emphasised the main responsibilities of the Border Guard – namely, border protection and border traffic control, as well as the prevention of illegal migration and the entry into State territory of foreigners not fulfilling the conditions required.", "159. The Government explained that all foreigners who presented themselves at the Polish-Belarusian border were subjected to the same procedure, which was regulated by Polish legislation and EU law. At the first line of border control their documents (travel documents and visas) were checked. If they did not fulfil the conditions for entry, they were directed to the second line of border control, at which detailed interviews were carried out by officers of the Border Guard. This interview, during which only an officer of the Border Guard and the foreigner in question were present, was a crucial element of this part of the border checks, and the statements given by a foreigner on that occasion would have been the only element allowing him or her to be identified as someone seeking international protection. In the event that it was evident from the statements made by the foreigner that he or she was seeking such protection, the application in this regard was accepted and forwarded to the relevant authority for review within forty-eight hours and the foreigner was directed to the Biała Podlaska Centre for Aliens. However, in the event that the foreigners in question expressed other reasons for their attempt to enter Poland (economic or personal, for example) a decision refusing entry was issued and immediately executed.", "160. The Government emphasised that the above-mentioned procedure had its basis in the Schengen Borders Code and that the fact that the officers of the Border Guard complied with it resulted from Poland’s membership of the European Union. They stated that, when applying this procedure, the domestic authorities remained bound by the obligations they had entered into upon acceding to the Convention in the light of the presumption of the equivalence of the protection of EU law and the Convention, as established in the case-law of the Court. They invoked in particular the judgments in the cases of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) and Avotiņš v. Latvia ([GC], no. 17502/07, 23 May 2016).", "161. Referring to the circumstances of the present cases, the Government stated that on all occasions on which the applicants had arrived at the border checkpoints at Terespol and (in respect of the applicants in case no. 43643/17) at Czeremcha-Połowce they had been subjected to the second line of border control and interviewed by officers of the Border Guard. The Government submitted that at no point had any of the applicants given reasons that would have justified the granting of international protection. As a result, no applications had been forwarded to the head of the Aliens Office.", "162. The Government stressed that all the applicants had arrived in Belarus some time before lodging their applications with the Court (almost a year with respect to the applicant in case no. 40503/17; four months with respect to the applicants in case no. 42902/17; and five months with respect to the applicants in case no. 43643/17). The applicants had not, in their oral statements given to the border guards, referred to any treatment that had been in breach of Article 3 of the Convention or any risk of their receiving such treatment while staying in Belarus. The Government submitted that the mere fact that the applicants were staying in Belarus illegally (as their visas had expired) did not automatically mean that they would run the risk of ill ‑ treatment, even if forced by the Belarusian authorities to return to Russia. In this connection the Government noted that Russia was a Contracting Party to the Convention and had undertaken to secure the fundamental rights guaranteed by the Convention.", "163. With regard to the applicant in case no. 40503/17, the Government also noted that the statements given by him on two occasions to the officers of the Border Guard contradicted the content of the documents that he had been carrying with him (see paragraph 22 above). In the Government’s opinion, this undermined the credibility of that applicant and the accounts of his situation.", "164. Accordingly, the Government submitted that in the present cases there was no evidence that the applicants were at risk of being subjected to treatment violating Article 3 of the Convention.", "(c) Third-party interveners", "165. The third-party interveners submitted that it was prohibited for a Contracting Party to the Convention to refuse entry or to return a person to face a serious violation of human rights – including a violation of the prohibition on torture and inhuman or degrading treatment. They emphasised the special vulnerability of children in respect of asylum procedures and noted that children were particularly affected by being disoriented owing to the loss of familiar surroundings and relationships.", "The Court’s assessment", "(a) General principles", "166. As the Court has stated on many occasions, the prohibition of inhuman or degrading treatment, enshrined in Article 3 of the Convention, is one of the most fundamental values of democratic societies. It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Khlaifia and Others, cited above, § 158, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 124, 21 November 2019). Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocol No. 1 and Protocol No. 4, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 – even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998 ‑ VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996 ‑ V, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV).", "167. The Court has on many occasions acknowledged the importance of the principle of non-refoulement (see, for example, M.S.S. v. Belgium and Greece, cited above, § 286, and M.A. v. Cyprus, no. 41872/10, § 133, ECHR 2013 (extracts)). The Court’s main concern in cases concerning the expulsion of asylum ‑ seekers is “whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled” (see, among other authorities, M.S.S. v. Belgium and Greece, cited above, § 286; Müslim v. Turkey, no. 53566/99, §§ 72-76, 26 April 2005; and T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000 ‑ III).", "168. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among other authorities, Hirsi Jamaa and Others, cited above, § 113, and Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment breaching Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to return the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008; F.G. v. Sweden [GC], no. 43611/11, §§ 110-11, 23 March 2016; and Ilias and Ahmed, cited above, § 126). Since protection against the treatment prohibited by Article 3 is absolute, there can be no derogation from that rule (see Saadi, cited above, § 138).", "169. In cases concerning the return of asylum-seekers, the Court has observed that it does not itself examine actual asylum applications. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see, for example, M.S.S. v. Belgium and Greece, cited above, § 286). The Court’s assessment of the existence of a real risk must necessarily be a rigorous one (see, for example, F.G. v. Sweden, cited above, § 113) and inevitably involves an examination by the competent national authorities and later by the Court of the conditions in the receiving country against the standards of Article 3 (see Ilias and Ahmed, cited above, § 127).", "170. It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his or her claim for asylum, together with reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of treatment in breach of Article 3 (see F.G. v. Sweden, cited above, § 125). However, the Court acknowledges that, owing to the special situation in which asylum-seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof (ibid., § 113). That assessment must focus on the foreseeable consequences of the applicant’s return to the country of destination, in the light of the general situation there and of his or her personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215).", "171. Moreover, the Court has noted that the exact content of the expelling State’s duties under the Convention may differ depending on whether it removes applicants to their country of origin or to a third country (see Ilias and Ahmed, cited above, § 128). In cases where the authorities choose to remove asylum-seekers to a third country, the Court has stated that this leaves the responsibility of the Contracting State intact with regard to its duty not to deport them if substantial grounds have been shown for believing that such action would expose them, directly (that is to say in that third country) or indirectly (for example, in the country of origin or another country), to treatment contrary to, in particular, Article 3 (see M.S.S. v. Belgium and Greece, cited above, §§ 342-43 and 362-68).", "172. Consequently, the Court has indicated that where a Contracting State seeks to remove an asylum-seeker to a third country without examining the asylum request on the merits, the main issue before the expelling authorities is whether or not the individual will have access to an adequate asylum procedure in the receiving third country. This is because the removing country acts on the basis that it would be for the receiving third country to examine the asylum request on the merits, if such a request is made to the relevant authorities of that country (see Ilias and Ahmed, cited above, § 131).", "173. The Court has further clarified that in all cases of removal of an asylum-seeker from a Contracting State to a third intermediary country without examination of the asylum request on the merits, regardless of whether or not the receiving third country is an EU member State or a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seeker should not be removed to the third country concerned (ibid., § 134).", "(b) Application of the above principles to the present case", "174. The Court notes first of all that the Government disputed whether the applicants, when presenting themselves on numerous occasions at the Polish border, expressed a wish to lodge applications for international protection or communicated any fear for their own safety. The Government submitted that the applicants did not raise any claims in that respect and – in consequence – could not be considered asylum-seekers. The Court attaches more weight to the applicants’ version of the events at the border because it is corroborated by a large number of accounts collected from other witnesses by the national human rights institutions (in particular by the Children’s Ombudsman – see paragraphs 109-14 above). The reports by those bodies indicate the existence of a systemic practice of misrepresenting the statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard serving at the border checkpoints between Poland and Belarus. Moreover, the irregularities in the procedure concerning the questioning of foreigners arriving at the Polish-Belarusian border at the relevant time, including the lack of a proper investigation into the reasons for which they sought entry into Poland, were confirmed by judgments of the Supreme Administrative Court (see paragraphs 76-77 above).", "175. The applicants’ account of the statements that they gave at the border is also corroborated by a number of documents presented by them to the Court at all stages of the proceedings, especially by copies of the applications for international protection carried by the applicants at the time when they presented themselves at the border. The Court does not find it credible that the applicants possessed those documents (which they submitted to the Court – specifically when requesting that interim measures be indicated in their cases) but failed to hand them to the officers of the Border Guard who were about to decide whether to admit them into Poland or to return them to Belarus. Moreover, the applicants’ version of events in this respect is also supported by the fact that they made numerous attempts to cross the border and sought representation by Polish and Belarusian lawyers, who assisted them with drafting their statements, and who – in the case of the applicants in cases nos. 40503/17 and 43643/17 – on one occasion were present at the border in order to provide representation to the applicants, but were not allowed to meet with them (see paragraphs 11 and 54 above).", "176. In any event, the Court points to the fact that the applicants’ applications for international protection, which comprised at least a general account of the reasons for their fear of persecution, and the documents provided by them in support of their claims were sent to the Government at the times when they were informed by the Court of the application of the interim measures in the applicants’ cases – namely, on 8, 16 and 20 June 2017 respectively (see paragraphs 16, 33 and 59 above). Furthermore, on 14 and 30 June and 4 July 2017 respectively, the Court (the duty judge) informed the Government that in the light of the fact that those documents had been transferred to the Government, it considered that the applicants had lodged requests for international protection (see paragraphs 21, 37 and 61 above). Information about the applicants’ claims was also subsequently submitted by electronic means directly to the Border Guard by the applicants’ representatives (see paragraphs 23, 35 and 64 above). It follows that, from those dates onwards, the Government were aware of the applications made by the applicants and of the existence of the documents substantiating them and were obliged to take those materials into account when assessing each applicant’s situation.", "177. Accordingly, the Court cannot accept the argument of the Polish Government that the applicants had presented no evidence whatsoever that they were at risk of being subjected to treatment violating Article 3. The applicants indicated individual circumstances that – in their opinion – substantiated their applications for international protection and produced a number of documents (their testimony concerning a history of torture or threats, psychologists’ opinions, and official documents) substantiating their claims. They also raised arguments concerning the reasons for not considering Belarus to be a safe third country for them and why, in their opinion, returning them to Belarus would put them at risk of “chain refoulement ”. Those arguments were substantiated by the official statistics, which indicated that the asylum procedure in Belarus was not effective as far as Russian citizens were concerned.", "178. The Court is therefore satisfied that the applicants could arguably claim that there was no guarantee that their asylum applications would be seriously examined by the Belarusian authorities and that their return to Chechnya could violate Article 3 of the Convention. The assessment of those claims should have been carried out by the Polish authorities acting in compliance with their procedural obligations under Article 3 of the Convention. Moreover, the Polish State was under an obligation to ensure the applicants’ safety, in particular by allowing them to remain within Polish jurisdiction until such time as their claims had been properly reviewed by a competent domestic authority. Taking into account the absolute nature of the right guaranteed under Article 3, the scope of that obligation was not dependent on whether the applicants had been carrying documents authorising them to cross the Polish border or whether they had been legally admitted to Polish territory on other grounds.", "179. Moreover, in the Court’s view, in order for the State’s obligation under Article 3 of the Convention to be effectively fulfilled, a person seeking international protection must be provided with safeguards against having to return to his or her country of origin before such time as his or her allegations are thoroughly examined. Therefore, the Court considers that, pending an application for international protection, a State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill-treatment if he or she remains on the territory of the neighbouring State, unless adequate measures are taken to eliminate such a risk.", "180. The Court furthermore notes the Government’s argument that by refusing the applicants entry into Poland, the respondent State had acted in accordance with the legal obligations incumbent on it arising from Poland’s membership of the European Union.", "181. The Court indicates, however, that the provisions of European Union law, including the Schengen Borders Code and Directive 2013/32/EU, clearly embrace the principle of non-refoulement, as guaranteed by the Geneva Convention, and also apply it to persons who are subjected to border checks before being admitted to the territory of one of the member States (see paragraphs 78-84 above). Those provisions (i) are clearly aimed at providing all asylum-seekers with effective access to the proper procedure by which their claims for international protection may be reviewed (see also Sharifi and Others v. Italy and Greece, no. 16643/09, § 169, 21 October 2014), and (ii) oblige the State to ensure that individuals who lodge applications for international protection are allowed to remain in the State in question until their applications are reviewed (see paragraph 91 above).", "182. The Court thus notes that, under the Schengen Borders Code, the Polish authorities could have refrained from sending the applicants back to Belarus if they had accepted their application for international protection for review by the relevant authorities. Consequently, the Court considers that the impugned measure taken by the Polish authorities fell outside the scope of Poland’s strict international legal obligations (see, for a similar outcome, M.S.S. v. Belgium and Greece, § 340, and Ilias and Ahmed, § 97, both cited above).", "183. The Court also notes that the very real character of the risk of ill ‑ treatment in the present cases is illustrated by the alleged events following the return of the first applicant in case no. 42902/17 to Belarus and, subsequently, to Russia, where he claims to have been captured, detained and tortured (see paragraphs 44-45 and 47 above).", "184. In the light of the foregoing, the Court considers that the applicants did not have the benefit of effective guarantees that would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment, as well as torture.", "185. The fact that no proceedings in which the applicants’ applications for international protection could be reviewed were initiated on the thirty ‑ five, eight and nineteen or more occasions when the respective applicants were at the Polish border crossings constituted a violation of Article 3 of the Convention. Moreover, given the situation in the neighbouring State, as described above, the Polish authorities, by failing to allow the applicants to remain on Polish territory pending the examination of their applications, knowingly exposed them to a serious risk of chain refoulement and treatment prohibited by Article 3 of the Convention.", "186. There has accordingly been a violation of Article 3 of the Convention.", "Alleged violation of Article 3 of the Convention on account of the applicants’ treatment by the Polish authorities during border checks", "187. The applicants also argued that there had been a violation of the prohibition of degrading treatment on account of the manner in which they had been treated during border checks at the Terespol and Czeremcha-Połowce border checkpoints (see paragraph 151 above). In that respect, they submitted that they had been placed in a situation in which statements made by them at the border had been bluntly disregarded by the border guards and that they had been denied the procedure to which they were entitled under the domestic law. The Court notes that those arguments are closely related to the issue of the applicants’ lack of access to the asylum procedure. Consequently, having regard to the finding of a violation of Article 3 on account of the applicants’ exposure to the risk of inhuman and degrading treatment, as well as torture, in Chechnya and their lack of access to the asylum procedure (see paragraph 186 above), the Court considers that it is not necessary to examine whether there has been a violation of Article 3 with respect to the way in which the applicants were treated during the border checks.", "ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "188. The applicants furthermore complained that they had been subjected to a collective expulsion of aliens. They relied on Article 4 of Protocol No. 4 to the Convention, which provides:", "“Collective expulsion of aliens is prohibited.”", "The parties’ submissionsThe applicants", "The applicants", "The applicants", "189. The applicants submitted that various human rights organisations had reported an increase in the number of allegations made by individuals (mostly of Chechen origin) that despite their repeated and clearly formulated statements at the Polish-Belarusian border indicating a wish to lodge an application for international protection, they had been denied such a possibility. They referred, inter alia, to the above-mentioned report by the Polish Ombudsman, indicating that it proved that the interviews carried out by the officers of the Border Guard had not been aimed at establishing the individual situation of foreigners arriving at the Polish border but at demonstrating that the reasons such foreigners sought entry into Poland were mainly of an economic nature (see paragraphs 98-105 above). They noted that foreigners, even if they directly expressed their fear of torture or other forms of persecution, were still asked in detail about their economic, professional and personal situation and not about their experiences relating to any fears that they had expressed. Statements lodged by foreigners expressing the intention to lodge applications for international protection and the reasons indicated therefor were ignored.", "190. The applicants also referred to the statements given to the press by the Polish Minister of the Interior and Administration on 31 August 2016 (see paragraph 115 above). The applicants also submitted that the statistics presented by the Government showed that in 2017 there had been a significant decrease in the number of applications for international protection being received at the Polish-Belarusian border (particularly at the Terespol border checkpoint). According to the applicants, this decrease had resulted from the execution by the Polish Border Guard of a policy adopted by the Government of pushing back refugees.", "191. The applicants furthermore argued that the collective nature of the policy of expelling foreigners was well illustrated by the events that had taken place on 17 March 2017, when a number of persons seeking entry into Poland (including the applicants in cases nos. 40503/17 and 43643/17) had been returned to Belarus without the possibility of meeting with their representatives (see paragraphs 11 and 54 above).", "192. The applicants also submitted that as a matter of general practice neither lawyers nor representatives of non-governmental organisations or representatives of the UNHCR were allowed to observe or take part in interviews conducted at the second line of border control. In their opinion, the lack of any possibility for those being interviewed to consult a lawyer or a member of an organisation assisting refugees demonstrated the lack of transparency of the actions taken by the Border Guard. It was also one of the elements supporting the conclusion that the applicants had not been provided with the possibility to have their cases reviewed individually and, in consequence, that their expulsion had been of a collective nature.", "The Government", "193. The Government submitted that every decision refusing entry into Poland issued with respect to the applicants had been based on an individual assessment of their situation and, in consequence, had not involved the collective expulsion of aliens.", "194. Firstly, the Government reiterated that as the applicants had not had valid visas to enter Poland they had been directed to the second line of border control, at which individual interviews had been carried out in a language understood by the applicants. Those interviews had been aimed at obtaining full knowledge of the reasons for which the applicants had arrived at the border without the necessary documents. Each adult applicant had been interviewed separately; the minor applicants had not been interviewed – instead, the decisions issued in respect of their parents had also applied to them. Secondly, the Government submitted that each interview had been recorded in the form of an official note detailing the reasons given by each of the applicants for seeking entry into Poland and – if necessary – any other circumstances in respect of their cases. Thirdly, the Government indicated that the decisions denying entry had been prepared as separate documents in respect of each of the adult applicants (that is to say, on an individual basis) after a careful examination of his or her respective situation. All the applicants had been presented with the decisions. In some cases the applicants had refused to sign the respective decision and accept a copy thereof. Fourthly, the Government emphasised the fact that the number of attempts a foreigner had made to cross the border did not influence the decisions taken by the border guards.", "195. The Government stated that the decisions concerning refusal of entry had been issued on the standardised form and – in the light of that fact – might have seemed similar to each other; however, they had in each instance been issued on the basis of an individual assessment of the situation of each of the applicants.", "196. The Government also stressed that the fact that the decisions concerning refusal of entry had been taken on the basis of an individual assessment of each foreigner’s individual situation was corroborated by the relevant statistics. They submitted that in 2016 at the Terespol border checkpoint applications from 8,313 persons had been received and forwarded to the head of the Aliens Office for review, whereas in the first half of 2017 the applications of 1,212 persons had been received.", "The Court’s assessmentGeneral principles", "General principles", "General principles", "197. According to the Court’s case-law, collective expulsion is to be understood as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts), and Georgia v. Russia (I) [GC], no. 13255/07, § 167, ECHR 2014 (extracts)). This does not mean, however, that where the latter condition is satisfied the background to the execution of an expulsion order plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4 (see Čonka, § 59, and Khlaifia and Others, § 237, both cited above).", "198. The Court has previously held that the notion of expulsion used in Article 4 of Protocol No. 4 should be interpreted in the generic meaning in current use (that is to say “to drive away from a place”) (see Hirsi Jamaa and Others, cited above, § 174) and should be applied to all measures that may be characterised as constituting a formal act or conduct attributable to a State by which a foreigner is compelled to leave the territory of that State, even if under domestic law such measures are classified differently (for instance as the “refusal of entry with removal” rather than “expulsion” or “deportation” – see, in particular, Khlaifia and Others, cited above, § 243). This understanding of the notion of expulsion has been recently confirmed by the Grand Chamber in N.D. and N.T. v. Spain (cited above, § 185).", "199. With regard to the scope of the application of Article 4 of Protocol No. 4, the Court notes that the wording of this provision, unlike Article 2 of Protocol No. 4 and Article 1 of Protocol No. 7, does not refer to the legal situation of the persons concerned. Moreover, it can be seen from the commentary on the draft of Protocol No. 4 that, according to the Committee of Experts, the aliens to whom Article 4 refers are not only those lawfully residing within a State’s territory, but also “all those who have no actual right to nationality in a State, whether they are merely passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality” (see Article 4 of the Committee’s final draft, p. 505, § 34; see also Georgia v. Russia (I), cited above, § 168).", "200. In accordance with that interpretation, the Court has applied Article 4 of Protocol No. 4 not only to persons who were residing within the territory of a State but also to persons who arrived at the territory of the respondent State and were stopped and returned to the originating State (see Čonka, § 63, and Sultani, §§ 81-84, both cited above), irrespective of whether or not they arrived in the respondent State legally (see, among other authorities, Sharifi and Others, §§ 210-13, and Georgia v. Russia (I), § 170, both cited above). The Court has also applied Article 4 of Protocol No. 4 to persons who were intercepted on the high seas while trying to reach the territory of a respondent State and were stopped and returned to the originating State (see Hirsi Jamaa and Others, cited above, § 182), as well as to persons who were apprehended in an attempt to cross a national border by land and were immediately removed from a State’s territory by border guards (see N.D. and N.T. v. Spain, cited above, § 187).", "201. The purpose of Article 4 of Protocol No. 4 is to prevent States from being able to return a certain number of foreigners without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Sharifi and Others, § 210, and Hirsi Jamaa and Others, § 177, both cited above). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of each such case and to verify whether a decision to return a foreigner took into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183). Regard must also be had to the particular circumstances of the expulsion and to the “general context at the material time” (see Georgia v. Russia (I), cited above, § 171).", "202. As the Court has previously observed, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there has been a collective expulsion if each person concerned has been given the opportunity to put arguments against his or her expulsion to the relevant authorities on an individual basis (see, among other authorities, M.A. v. Cyprus, §§ 246 and 254, and Khlaifia and Others, § 239, both cited above). In the past, when assessing the collective nature of expulsion, the Court has taken into consideration certain factors such as the fact that the decisions concerning the return of the applicants made no reference to their asylum request (even though the asylum procedure had not yet been completed), that the actions aimed at the return of foreigners had taken place in conditions that made it very difficult for the applicants to contact a lawyer, and that the relevant political bodies had announced that there would be operations of that kind (see Čonka, cited above, §§ 60 ‑ 63). The Court has also considered whether, before being subjected to “automatic returns”, applicants have had any effective possibility of seeking asylum (see Sharifi and Others, cited above, §§ 214-25).", "203. In addition, the Court has taken the applicants’ own conduct into consideration when assessing the protection to be afforded under Article 4 of Protocol No. 4. According to the Court’s well-established case-law, there is no violation of Article 4 of Protocol No. 4 if the absence of an individual expulsion decision can be attributed to the applicant’s own culpable conduct (see Khlaifia and Others, cited above, § 240). The Court has held, in particular, that a lack of active cooperation on the part of applicants with the available procedure for conducting an individual examination of their circumstances or recourse to unauthorised and clearly disruptive means of attempting to enter the State’s territory despite the existence of a genuine and effective access to means of legal entry might prompt the Court to find that the Government cannot be held responsible for the fact that the applicants’ circumstances were not individually examined (see N.D. and N.T. v. Spain, cited above, § 200).", "Application of the above principles to the present case", "204. The Court must first address whether the decisions to refuse the applicants entry into Poland issued at the border checkpoints constituted an “expulsion” within the meaning of Article 4 of Protocol No. 4. In this context, the Court notes that in the case of Hirsi Jamaa and Others it held that Article 4 of Protocol No. 4 applied to migrants intercepted by the authorities of a State on the high seas and their removal to their countries of transit or origin (cited above, § 180). Given that the prohibition on the collective expulsion of aliens expressed in that provision was held to be applicable in respect of the actions of a State, the effect of which was to prevent migrants from reaching the borders of that State, then it is even more evident that it applies to a situation in which the aliens present themselves at a land border and are returned from there to the neighbouring country (see also N.D. and N.T. v. Spain, cited above, § 187).", "205. Furthermore, as held above (see paragraphs 129-32 above), when subjected to border checks, the applicants were under the territorial jurisdiction of the Polish authorities. As a result of the decisions refusing them entry into Poland they were sent back, against their will, to Belarus, where they alleged that they remained at risk of being returned to Russia. The Court therefore concludes that they were expelled within the meaning of this provision (see Khlaifia and Others, cited above, § 243). It remains to be established whether that expulsion was “collective” in nature.", "206. In this context the Court notes the Government’s argument that each time the applicants presented themselves at the Polish border, they were interviewed by the officers of the Border Guard and received individual decisions concerning the refusal to allow them entry into Poland. However, the Court has already indicated that it considers that during this procedure the applicants’ statements concerning their wish to apply for international protection were disregarded (see paragraph 174 above) and that even though individual decisions were issued with respect to each applicant, they did not properly reflect the reasons given by the applicants to justify their fear of persecution. The Court also points to the fact that the applicants were not allowed to consult lawyers and were denied access to them even when – in respect of the applicants in cases nos. 40503/17 and 43643/17 – their lawyers were at the border checkpoint and demanded to be allowed to meet with their clients (see paragraphs 11 and 54 above).", "207. The Court further stresses that the applicants in the present case were trying to make use of the procedure of lodging applications for international protection that should have been available to them under domestic law. They attempted to cross the border in a legal manner, using an official checkpoint and subjecting themselves to border checks as required by the relevant law. Hence, the fact that the State refused to entertain their arguments concerning the justification for their applications for international protection cannot be attributed to their own conduct (compare N.D. and N.T. v. Spain, cited above, § 231).", "208. Moreover, the independent reports concerning the situation (in particular regarding the border checkpoint at Terespol) indicate that the applicants’ cases constituted an exemplification of a wider State policy of refusing entry to foreigners coming from Belarus, regardless of whether they were clearly economic migrants or whether they expressed a fear of persecution in their countries of origin. Those reports noted a consistent practice of: holding very brief interviews, during which the foreigners’ statements concerning the justification for their seeking international protection were disregarded; emphasis being placed on the arguments that allowed them to be categorised as economic migrants; and misrepresenting the statements made by the foreigners in very brief official notes, which constituted the sole basis for issuing refusal-of-entry decisions and returning them to Belarus, even in the event that the foreigners in question had made it clear that they wished to apply for international protection in Poland (see paragraphs 98-114 above).", "209. The conclusion concerning the existence of a wider State policy of not accepting for review applications for international protection and of returning individuals seeking such protection to Belarus is also supported by the statement of the then Minister of the Interior and Administration referred to by the applicants (see paragraphs 115 and 190 above). The statement in question, formulated by the Minister, who at the time oversaw the Border Guard, clearly expressed opposition towards accepting migrants from the Chechen Republic (see, mutatis mutandis, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 163, ECHR 2012).", "210. The Court concludes that the decisions refusing entry into Poland issued in the applicants’ cases were not taken with proper regard to the individual situation of each of the applicants and were part of a wider policy of not receiving applications for international protection from persons presenting themselves at the Polish-Belarusian border and of returning those persons to Belarus, in violation of domestic and international law. Those decisions constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4.", "211. Accordingly, the Court considers that in the present case there has been a violation of Article 4 of Protocol No. 4 to the Convention.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "212. The applicants furthermore complained that they had not been afforded an effective remedy under Polish law by which to lodge with the domestic authorities their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "The parties’ submissionsThe applicants", "The applicants", "The applicants", "213. The applicants stressed that they had presented substantial grounds for believing that if they were returned to Belarus they would face the risk of a violation of Article 3. In consequence, they should have had access to a remedy with automatic suspensive effect. However, the decisions concerning refusal of entry had been enforceable immediately and the lodging of appeals against those decisions would not have suspended their execution.", "214. The applicants reiterated that, in their opinion, the head of the National Border Guard (who acted as the second-instance administrative authority in respect of cases of refusal of entry) could not be considered to constitute an independent body. In addition, the applicants submitted that the relevant statistics demonstrated that there was no genuine chance of their receiving a positive decision from the head of the National Border Guard, given the fact that in the period from 1 January 2016 until 15 September 2017 that body had received 203 appeals against decisions refusing entry into Poland. All decisions appealed against in this period had been upheld.", "215. The applicants acknowledged that in the event of the head of the National Border Guard issuing a negative decision they could have lodged an appeal with the administrative courts, but they argued that proceedings before that court could take up to three years in total. In their view that rendered such an appeal ineffective, given the circumstances of their cases.", "The Government", "216. The Government submitted that the applicants had had at their disposal an effective remedy – namely an appeal to the head of the National Border Guard against the decisions concerning refusal of entry. The Government acknowledged that an appeal did not have suspensive effect, but they argued that the domestic provisions were in this respect in accordance with European Union law, which obliged them to ensure that a third-country national who had been refused entry into a member State did not enter the territory of that State. The Government emphasised that the lack of suspensive effect of the appeal in question resulted from the special character of the decision on refusal of entry. They argued that if a foreigner did not fulfil the conditions for entry into Poland, the decision on refusal of entry had to be executed immediately, as there would be no grounds for the foreigner in question to remain on the territory of Poland. The Government also pointed out that in the event that the head of the National Border Guard issued a negative decision, domestic law provided the possibility of lodging a complaint with the administrative court.", "217. The Government noted that in each of the three cases, the applicants had only appealed against some of the decisions concerning the refusal to allow them entry and that in respect of all the cases, proceedings were still pending.", "218. Moreover, the Government argued that the decisions to refuse the applicants entry had been taken individually by officers of the Border Guard after taking into account the conditions existing at the moment when the decision had been taken. They stressed that although proceedings concerning the applicants’ appeals were pending, nothing was stopping them from coming to the border checkpoint again and – in the event that they fulfilled the conditions for entry – being admitted to the territory of Poland.", "The Court’s assessment", "219. The Court has already concluded that the return of the applicants to Belarus amounted to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4 (see paragraphs 186 and 211 above). The complaints lodged by the applicants on these points are therefore “arguable” for the purposes of Article 13 (see, in particular, Hirsi Jamaa and Others, cited above, § 201). Furthermore, the Court has ruled that the applicants in the present cases were to be treated as asylum-seekers (see paragraph 174 above); it has also established that their claims concerning the risk that they would be subjected to treatment in breach of Article 3 if returned to Belarus were disregarded by the authorities responsible for border control and that their personal situation was not taken into account (see paragraph 210 above).", "220. In addition, the Court has already held that an appeal against a refusal of entry and a further appeal to the administrative courts were not effective remedies within the meaning of the Convention because they did not have automatic suspensive effect (see paragraph 147 above). The Government did not indicate any other remedies which might satisfy the criteria under Article 13 of the Convention. Accordingly, the Court finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention.", "ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION", "221. Lastly, the applicants complained that the Government had failed to comply with the interim measures indicated by the Court in the applicants’ cases. They relied on Article 34 of the Convention, which provides:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "Rule 39 of the Rules of Court provides:", "“1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.", "2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.", "3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.", "4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.”", "The parties’ submissionsThe applicants", "The applicants", "The applicants", "222. The applicants argued that the failure by the Government to comply with the interim measures indicated by the Court in respect of their cases constituted a violation of Article 34. They indicated that they had provided the Court with sufficient information in support of their requests for interim measures, which had resulted in those measures being granted. The applicants stressed that according to the Court’s case-law, it was not open to a Contracting State to substitute its own judgment for that of the Court. Therefore, for as long as the measure was in place, the Government in question were bound by it. The applicants pointed out that in respect of their cases the Government had contested the interim measures from the very day on which they had been indicated to them, and had deliberately failed to comply with them.", "223. The applicants reiterated that the period during which they could stay in Belarus without a visa had expired and that they were at risk of being returned to Russia, where they faced the danger of treatment breaching Article 3 of the Convention. They also indicated that, after the Government’s non-compliance with the interim measures, the applicants in all three cases had decided to leave Belarus for fear of being deported and had continued to flee in fear for their security.", "224. Moreover, the applicants pointed out that the fact that they were represented by lawyers who had lodged applications on their behalf was irrelevant for the purposes of an assessment of the alleged violation of Article 34 of the Convention with regard to the Government’s non ‑ compliance with the above-mentioned interim measure. The applicants in cases nos. 40503/17 and 43643/17, who were represented by lawyers practicing in Poland, also noted that the fact that they could not enter Poland made contact with their lawyers more difficult and deprived them of the possibility to directly participate in the proceedings concerning their appeals against the decisions concerning refusal of entry that were pending before the domestic authorities.", "The Government", "225. The Government argued that the respondent State had created no hindrance to the effective exercise of the applicants’ right of application. The Government stated in particular that their not executing the interim measures indicated by the Court on 8 and 16 June and 20 July 2017 respectively had not breached – in the circumstances of the present cases – Article 34 of the Convention. They indicated that the applicants’ right provided by this provision remained effective and had been exercised by the applicants. They also indicated that the required conditions for the imposition of the interim measures had not been met and that the measures ought therefore to be lifted.", "226. The Government pointed out that Rule 39 of the Rules of Court could be applied only in restricted circumstances, when there was an imminent risk of irreparable damage. In the Government’s opinion, in the applicants’ cases no imminent risk of irreversible harm to any of the rights guaranteed by the Convention had occurred. The applicants had remained on the territory of Belarus for a significant period of time (almost a year in respect of the applicant in case no. 40503/17; four months in respect of the applicants in case no. 42902/17; and five months in respect of the applicants in case no. 43643/17) before they had submitted their applications for interim measures. According to the Government, they had not faced any real risk of harm; nor had they proved that continuing to stay in Belarus would give rise to such a risk.", "227. Moreover, the Government submitted that the applicants’ stay in Belarus had in no way hindered their communications with the Court and had not negatively impacted their right to lodge and pursue their applications, especially as they had been represented at all stages of the proceedings before the Court. The Government also emphasised that the possibility for the applicants to lodge an application against Poland was not dependent on their presence on Polish territory and stressed that the Convention did not create an obligation for the respondent State to allow unauthorised entry onto its territory to anyone who lodged an application against it with the Court.", "Third-party interveners", "228. The third-party interveners submitted that the very nature and function of interim measures necessitated that they have binding effect. They argued that full compliance with an interim measure required the State to rigorously apply and enforce the measure indicated by the Court. They also stressed that the binding force of interim measures on all international authorities was based on the necessity to preserve the facts pending adjudication of the case and to prevent irreparable damage to the interests of one of the parties before human rights courts and tribunals; it also served to preserve the capacity of a court or tribunal to provide real and effective protection of the human rights guaranteed by the governing treaty. The third-party interveners referred, inter alia, to interim measures that could be indicated in proceedings before the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights or the UN Human Rights Committee.", "The Court’s assessmentGeneral principles", "General principles", "General principles", "229. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005-I). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. There are positive obligations inherent in Article 34 requiring the authorities to furnish all necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in particular in situations where applicants are particularly vulnerable (see Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013, and Amirov v. Russia, no. 51857/13, § 65, 27 November 2014).", "230. According to the Court’s established case-law, since interim measures provided for by Rule 39 are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition, a respondent State’s failure to comply with such measures entails a violation of the right of individual application (see Mamatkulov and Askarov, cited above, § 125; Abdulkhakov v. Russia, no. 14743/11, § 222, 2 October 2012; and Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009).", "231. The crucial significance of interim measures is highlighted by the fact that the Court issues them, as a matter of principle, only in exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most such cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm, in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard. Any laxity on this question would unacceptably weaken the protection of the core rights in the Convention and would not be compatible with its values and spirit (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Mamatkulov and Askarov, cited above, §§ 100 and 125; and Amirov, cited above, § 67).", "232. Furthermore, the Court would stress that it follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short space of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification (see Paladi, cited above, § 89).", "233. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of material capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV, and Paladi, cited above, § 90). At the same time a High Contracting Party may lodge at any time a request to lift an interim measure.", "234. The point of departure for verifying whether a respondent State has complied with the measure is the formulation of the interim measure itself. The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it. Article 34 will be breached if the authorities of a Contracting State fail to take all steps that could reasonably have been taken in order to comply with the measure indicated by the Court. It is for the Government to demonstrate to the Court that the interim measure was complied with (or, exceptionally, that there was an objective impediment which prevented compliance), and that the Government took all reasonable steps to remove that impediment and to keep the Court informed about the situation. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not, however, re ‑ examine whether its decision to apply that interim measure was correct (see, mutatis mutandis, Aleksanyan v. Russia, no. 46468/06, §§ 228 ‑ 32, 22 December 2008, and Paladi, cited above, §§ 91-92).", "Application of the above principles to the present case", "235. The Court notes, firstly, that the interim measures indicated in respect of the applicants’ cases on 8 and 16 June and 20 July 2017, respectively, included instructions to the authorities to refrain from returning the applicants to Belarus. In cases nos. 40503/17 and 42902/17, the Court furthermore specified that the measures in question should be interpreted in such a way that – when the applicants presented themselves at a Polish border checkpoint – their applications for asylum should be received and registered by the Border Guard and forwarded for examination by the relevant authorities; the Court moreover specified that, pending examination of their asylum applications, the applicants should not be sent back to Belarus. Despite the indication of the interim measures, the applicants were turned away to Belarus not only on the days on which the measures were indicated (see paragraphs 16, 33 and 59 above) but also at least a few times thereafter (see paragraphs 22, 34, 38 and 62 above). It should be noted that on a number of those occasions the applicants were carrying with them copies of letters informing them of the indication of an interim measure in respect of their cases and that their representatives had sent copies of those letters directly to the Border Guard.", "236. The Court furthermore observes that the Government have continuously questioned the possibility of complying with the interim measures, by indicating – even after the Court explained how to interpret the interim measures in question – that the applicants were never legally admitted to Poland in the first place and that they therefore could not have been removed. The Government also disputed the legitimacy of interim measures being indicated in respect of the present cases; they submitted that there had not been a sufficient factual basis for them and that the applicants had abused this tool in order to force the Border Guard to admit them to Poland. The Court would point out that the Government have continued to rely on those arguments even after the Court rejected them by dismissing the Government’s applications for the measures to be lifted (see paragraphs 21, 37 and 61 above).", "237. The Court furthermore notes that in respect of cases nos. 40503/17 and 43643/17, the interim measures initially indicated on 8 June and 20 July 2017 have still not been complied with and remain in force. In respect of case no. 42902/17, the applicants were finally admitted to Poland on 7 January 2018 (the second applicant, together with her children) and 20 March 2018 (the first applicant), and the procedure concerning their applications for international protection has been initiated. It follows, therefore, that the interim measure in their case has been complied with; however that measure was undertaken only after a significant delay, which resulted in the applicants being put at risk of the kind of treatment that the measures were aimed at protecting them against (see, particularly with respect to the first applicant, paragraphs 47 and 183 above).", "238. Accordingly, the Court concludes that Poland has failed to discharge its obligations under Article 34 of the Convention.", "RULE 39 OF THE RULES OF COURT", "239. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber, or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention.", "240. It considers that the indications made to the Government under Rule 39 of the Rules of Court in cases nos. 40503/17 and 43643/17 (see paragraphs 16 and 59 above) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "241. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "242. The applicant in case no. 40503/17 claimed no less than 10,000 euros (EUR) in respect of non-pecuniary damage, leaving the exact amount to the Court’s discretion.", "243. The applicants in case no. 42902/17 claimed jointly EUR 210,000 in respect of non-pecuniary damage and EUR 4,200 in respect of pecuniary damage for living expenses incurred while they were residing in Brest.", "244. The applicants in case no. 43643/17 claimed no less than EUR 35,000 in respect of non-pecuniary damage (leaving the determination of the exact amount to the Court) and EUR 11,100 in respect of pecuniary damage for living expenses incurred while they were residing in Brest.", "245. The Government submitted that the amounts indicated by the applicants were excessive and unjustified.", "246. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, in respect of non-pecuniary damage, ruling on an equitable basis, it awards the applicant in case no. 40503/17 EUR 34,000, the applicants in case no. 42902/17 EUR 34,000 jointly, and the applicants in case no. 43643/17 EUR 34,000 jointly.", "Costs and expenses", "247. The applicant in case no. 40503/17 also claimed EUR 440 in respect of the costs and expenses incurred before the domestic authorities (including court fees incurred before the Warsaw Regional Administrative Court and the cost of train tickets from Brest to Terespol). He did not lodge any claim in respect of the costs incurred before the Court.", "248. The applicants in case no. 42902/17 claimed EUR 120 in respect of the costs and expenses incurred before the domestic authorities (including the cost of train tickets from Brest to Terespol) and EUR 38.70 in respect of the costs incurred before the Court.", "249. The applicants in case no. 43643/17 claimed EUR 740 in respect of the costs and expenses incurred before the domestic authorities (including court fees incurred before the Warsaw Regional Administrative Court and the cost of train tickets from Brest to Terespol). They did not lodge any claim in respect of the costs incurred before the Court.", "250. The Government submitted that there was no reason to reimburse the applicants the cost of their train tickets. They did not comment on the remainder of the applicants’ claims concerning costs and expenses.", "251. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant in case no. 40503/17 EUR 140, the applicants in case no. 42902/17 EUR 39, and the applicants in case no. 43643/17 EUR 140, covering costs under all heads.", "Default interest", "252. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1986 and lives in Gujrat, Pakistan. He was represented by Ms B. Pohárnok, a lawyer practising in Budapest.", "3. The Government were represented by their Agent at the Ministry of Justice, Mr Z. Tallódi.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "circumstances prior to THE events complained of", "5. According to the applicant, he left Pakistan in 2008 or 2009 because he had been repeatedly ill-treated by members of the Pakistani military forces. He subsequently stayed in Greece until 2011, when he tried to enter other European countries but was allegedly pushed back from Serbia and returned to Greece.", "6. Again travelling through North Macedonia, the applicant arrived in Serbia for a second time in April 2016. He claimed to have attempted to apply for asylum in Krnjača camp and Subotica, but was refused both times without having his asylum claims examined. Subsequently, the applicant attempted to enter Hungary through one of the Hungarian transit zones, and asked the person (an Afghan man) managing the waiting list at the time to put his name on the list. He allegedly refused to do so, telling the applicant that single men could not be added. The applicant stayed in Serbia, in the Subotica area. He was occasionally allowed to stay inside the camp, but for the most part stayed on his own without adequate accommodation and food.", "7. During this period, the applicant tried to enter Hungary irregularly but was apprehended by the Hungarian police and immediately sent back to the external side of the border fence.", "apprehension of the applicant and his return to Serbia on 12 August 2016", "8. On the evening of 11 August 2016 the applicant again crossed the Serbian-Hungarian border irregularly, by cutting a hole in the border fence with eleven other Pakistani men. They had walked approximately eight hours before resting in a cornfield between Katymár and Madaras in Bács ‑ Kiskun County. At around 11 a.m. on 12 August 2016 they were intercepted by Hungarian police officers. The group of men were eventually encircled by the officers and asked to hand over their belongings, which were inspected and then returned. The applicant told the officers that he wanted asylum, but one of them replied: “asylum is closed”. Subsequently, two investigating officers arrived, as well as someone who could speak Urdu and Hungarian. The applicant again asked for asylum but was told that he “[could] not ask for asylum”. One of the two investigating officers questioned the group in order to determine whether they were smugglers. The two investigating officers and the person who spoke Urdu then left the scene. The group remained with the other officers, who were later identified (see paragraph 15 below) as police and border control officers from Bácsbokod and two Slovak officers in green uniform conducting border control in the framework of cooperation between the Visegrad Group countries (namely Czechia, Hungary, Poland and Slovakia, also known as the “Visegrad Four” or “V4”).", "9. The apprehended men were driven about twenty minutes to the border fence. Video footage, which was provided to the applicant’s representative in the course of the criminal investigation (see paragraph 15 below), shows the applicant and the eleven other men standing in front of a green van and the applicant reading a document. They are surrounded by officers in blue as well as dark green and military clothing. After the applicant finishes reading, one of the police officers takes the document and someone is heard saying “understand” and a few seconds later “go”. The applicant and the eleven other men then go through a gate in the fence. According to information provided in the subsequent criminal investigation (see paragraph 15 below), this happened at 3.25 p.m. On the other (external) side of the border fence, several officers in blue uniforms can be seen surrounding the group and giving orders. According to the criminal case file (see paragraph 15 below), these officers were from the Baranya County police (in particular Siklós police station). One of the officers can be heard ordering the men to sit down after crossing the fence. The video recording stops when the last man passes the border gate and sits down as ordered by the police. According to the applicant, the Hungarian police officers subsequently beat up him and the other men in the group and then ordered them to go to Serbia.", "10. It would appear from the information gathered during the criminal investigation (see paragraph 15 below) that there were at least eleven officers present on the internal and external side of the border fence when the measure in question was being carried out.", "11. After their removal, the applicant and other men in the group walked about 10 to 15 km to the Serbian village of Bajmok, then took a bus and taxi to the reception centre for migrants in Subotica. From there the applicant was taken by ambulance to a nearby hospital. Later that evening, at 11.30 p.m., he gave a statement to Serbian police at Subotica police station, describing his border crossing and subsequent apprehension, alleged beatings and return to Serbia.", "12. According to information obtained from the National Police Headquarters (NPH) by the applicant’s representative, there were three cases of “apprehension and escort” in Bács-Kiskun County on 12 August 2016, affecting thirty-seven individuals. Among these were twelve Pakistani nationals who were apprehended at 11.10 a.m. near Katymár and escorted to the external side of the border fence by Hungarian police officers. Images and sound recordings were taken in all cases.", "13. In official reports and correspondence concerning the applicant’s criminal complaint (see paragraph 15 below), the police officers involved stated that the group, upon exiting the Hungarian border gate, had been directed towards the Hungarian transit zones. However, the statements given during the investigation by the officers who were standing on the external side of the border fence and giving the orders indicate that the group were directed towards Serbian territory. They explained that it had been for security reasons that they had ordered the migrants to sit down and then pointed them away from the fence. According to one of the police officers, migrants were only allowed to leave the area at the same time and in a group. Two officers testified that their superior had ordered them to make sure that all removed migrants left in one direction – into Serbia, preventing them from spreading along the border fence in two directions and potentially attempting to cross the border fence again.", "Access to the transit zones", "14. During the police procedure in question, the applicant was made to cross the border fence near Katymár. The distance from this location to Tompa transit zone is approximately 40 km. The remaining transit zone, the Röszke transit zone, is 84 km away. According to the applicant, at the time of his removal, Hungary set daily admission limits – fifteen people per transit zone. Furthermore, those wishing to enter had to register on a waiting list managed by one of the migrants (“the list manager”), who was selected by other waiting migrants with the assistance of the Serbian asylum office. The list manager submitted the waiting list to officials at the Hungarian Immigration and Asylum Office (IAO), who returned the updated list daily, with instructions as to who should be allowed to enter the transit zone that day. The list manager communicated this information to the waiting migrants and/or the Serbian asylum office. The selection of those who could enter one of the transit zones was based solely on this waiting list, and there were no other means of having physical access to the transit zones or officials of the IAO.", "subsequent events", "15. The applicant’s representative lodged a criminal complaint in relation to the alleged ill-treatment of the applicant. A criminal investigation was opened on 24 October 2016 by the Szeged Regional Investigative Prosecutor’s Office. The evidence gathered confirms that the “apprehension and escort” of the applicant and other men in the group took place on 12 August 2016. In the course of the investigation, fifteen police officers involved in the event gave statements, including the two Slovak officers. On 9 February 2018 a decision to terminate the investigation was upheld by the Department of Terrorism, Money Laundering and Military Affairs of the Prosecutor General’s Office. During the investigation, neither the applicant’s identity nor the existence of his injuries was disputed by the investigative authorities. However, in the authorities’ view, it could not be established beyond all doubt that the injuries had been inflicted by the Hungarian police.", "16. Following these events, the applicant stayed in Serbia for another three months. He allegedly tried, without success, to have his asylum claim registered in Serbia and to gain access to the Hungarian transit zones. In his submissions to the Court, he corrected his initial statement that he had been subjected to chain refoulement to North Macedonia, explaining that he had in fact gone back to Pakistan voluntarily in late 2016." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Domestic law", "17. The relevant parts of section 5(1) of Act no. LXXXIX of 2007 on State Borders (hereinafter “the State Borders Act”) reads as follows:", "“(1) In accordance with this [Act], it shall be possible to use, in Hungarian territory, a 60-metre strip [of land] from the external borderline, as defined in Article 2(2) of the Schengen Borders Code, or from the signs demarcating the border, in order to build, establish or operate facilities for maintaining order at the border – including those referred to in section 15/A – and to carry out tasks relating to defence and national security, disaster management, border surveillance, asylum and immigration.", "(1a) The police may, in Hungarian territory, apprehend foreign nationals staying illegally in Hungarian territory, within an 8-km strip [of land] from the external borderline, as defined in Article 2(2) of the Schengen Borders Code, or from the signs demarcating the border, and escort them through the gate of the nearest facility referred to in [subsection] 1, except where they are suspected of having committed an offence.”", "18. Section 15/A of the State Borders Act provides as follows:", "“(1) A transit zone may be created in the area referred to in section 5(1) to serve as a temporary place of stay for persons applying for asylum or subsidiary protection and as the place where asylum and migration control procedures take place and which is equipped with the facilities necessary for that purpose.", "(2) The applicant for international protection present in the transit zone may enter Hungarian territory if the competent asylum authority takes a decision granting international protection; the conditions for applying the general rules governing the asylum procedure are met, or in the cases specified in section 71/A(4) and (5) of the Asylum Act.", "(3) In the transit zone, public bodies shall perform their duties and exercise their powers in accordance with the legislative provisions applicable to them.”", "19. Section 71/A of Act no. LXXX of 2007 on Asylum (hereinafter “the Asylum Act”) provides:", "“(1) If an applicant lodges his or her application before admission to the territory of Hungary or after being intercepted within 8 km of the external borderline as defined by [Article 2(2)] of the Schengen [Borders] Code or of the [signs demarcating] the State border and escorted through the nearest gate in the security border fence facility, in a transit zone defined by the [State Borders Act], the provisions of this chapter [on the procedure for recognition as a refugee or a beneficiary of subsidiary protection] shall apply [accordingly, with the differences specified in this section].", "(2) In the border procedure, the applicant shall not have the rights stipulated in section 5(1)(a) and (c) [the right to stay in Hungarian territory and to work under certain conditions].", "(3) The asylum authority shall decide on the admissibility of an application as a priority and no later than eight days after it is made. The asylum authority shall promptly communicate the decision adopted in the procedure.", "(4) If a decision has not been taken within four weeks, the immigration authority shall grant entry in accordance with the provisions of the law.", "(5) If the application is not inadmissible, the immigration authority shall grant entry in accordance with the provisions of the law.", "(6) If the applicant has been granted entry to the territory of Hungary, the asylum authority shall conduct the procedure applying the general rules.", "(7) The rules applicable to the procedure in the transit zone shall not apply to persons requiring special treatment.”", "20. Following a request for information by the Hungarian Helsinki Committee, the Chief Commissioner of the National Police explained on 20 October 2016 that in the course of applying the measure under section 5 of the State Borders Act, the police informed the persons concerned of the unlawful nature of their entry to Hungarian territory, the purpose of the measure under section 5 and the possibility of applying for asylum in the transit zones, and escorted them through the closest border gate to the other side of the border fence. Furthermore, the police did not register any personal data in the course of the procedure but could take pictures and recordings.", "European Union law and practice", "21. As regards European Union law and practice, see N.D. and N.T. v. Spain ([GC], nos. 8675/15 and 8697/15, §§ 41-43, 45-48 and 50-51, 13 February 2020) and the case-law summarised in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 42-45, 15 December 2016).", "22. The relevant provisions of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (“the Return Directive”) state as follows:", "Article 3 - Definitions", "“For the purpose of this Directive the following definitions shall apply:", "...", "5. ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State;", "...”", "Article 5 - Non-refoulement, best interests of the child,", "family life and state of health", "“When implementing this Directive, Member States shall take due account of:", "(a) the best interests of the child;", "(b) family life;", "(c) the state of health of the third-country national concerned and respect the principle of non-refoulement.”", "Article 6 - Return decision", "“1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.", "...”", "Article 12 - Form", "“1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.", "The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.", "...”", "Article 13 - Remedies", "“1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.", "...”", "23. The relevant provisions of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (“the Asylum Procedures Directive”) read as follows:", "Article 3 - Scope", "“1. This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection.", "...”", "Article 6 - Access to the procedure", "“1. When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made.", "If the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law, Member States shall ensure that the registration shall take place no later than six working days after the application is made.", "Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.", "2. Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. Where the applicant does not lodge his or her application, Member States may apply Article 28 accordingly.", "3. Without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place.", "4. Notwithstanding paragraph 3, an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned.", "5. Where simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it very difficult in practice to respect the time limit laid down in paragraph 1, Member States may provide for that time limit to be extended to 10 working days.”", "24. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (“the Reception Conditions Directive”) applies to all third-country nationals and stateless persons who make an application for international protection on the territory, including at the border, in the territorial waters or in the transit zones of a Member State, as long as they are allowed to remain on the territory as applicants, as well as to family members, if they are covered by such application for international protection according to national law. It governs, among other things, residence and freedom of movement, and the conditions under which the applicants may be detained.", "25. After repeatedly expressing its concerns as to the compatibility of Hungarian asylum legislation with EU law, the European Commission, on 21 December 2018, brought an action for failure to fulfil obligations before the Court of Justice of the European Union (“CJEU”), seeking a declaration that part of the Hungarian asylum and border control legislation infringed certain provisions of Directives 2008/115/EC, 2013/32/EU and 2013/33/EU. In its action, the Commission criticised Hungary for, in particular, having restricted access to the international protection procedure, established a system of systematic detention of applicants for that protection and forcibly deported, to a strip of land at the border, illegally staying third-country nationals, without observing the guarantees provided for in Directive 2008/115/EC. The CJEU, sitting as the Grand Chamber, assessed Hungary’s compliance with the directives with respect to the period up to 8 February 2018. On 17 December 2020 it upheld most of the Commission’s action (C ‑ 808/18). In addition to the legislation in force at the time of the applicant’s removal in the present case, the CJEU’s judgment also takes account of the legislative changes introduced in 2017, in particular Act no. XX of 2017 on amending certain laws related to the strengthening of the procedure conducted in the guarded border area. The following findings of the CJEU are of particular relevance to the present case:", "“ 118 It follows that the Commission has proved, in a sufficiently documented and detailed manner, the existence, at the end of the period laid down in the reasoned opinion, namely 8 February 2018, of a consistent and generalised administrative practice of the Hungarian authorities aimed at limiting access to the transit zones of Röszke and Tompa so systematically and drastically that third-country nationals or stateless persons who, arriving from Serbia, wished to access, in Hungary, the international protection procedure, in practice were confronted with the virtual impossibility of making an application for international protection in Hungary.", "...", "121 ... it should be noted, first of all, that it is true that that Member State disputes the fact that the administrative instructions sought to limit the daily number of applications for international protection that could be made in each of the transit zones of Röszke and Tompa.", "122 However, in addition to the fact that that assertion is formally contradicted by the reports referred to in paragraphs 115 and 116 of the present judgment, Hungary has not explained, to the requisite legal standard, the reason why, in the presumed absence of such instructions, waiting lists – the existence of which it acknowledges – had been drawn up in order to establish the order in which persons situated in Serbia, in the immediate vicinity of the transit zones of Röszke and Tompa, and wishing to make an application for international protection in one of those zones, could enter them.", "123 In that regard, even if, as Hungary contends, the Hungarian authorities did not participate in the drawing up of those lists or influence the order of access to the transit zones thus established by them, the fact remains that the very existence of the lists has to be seen as the unavoidable consequence of the practice identified in paragraph 118 of the present judgment.", "124 Moreover, Hungary’s argument that the gradual dissipation of the long queues at the entrance of those transit zones proves that there is no restriction on entry into those same zones cannot succeed, either.", "125 After all, it is undisputed that there is no infrastructure available on the strip of land separating the Serbian-Hungarian border from the entry gate of the transit zones of Röszke and Tompa, meaning that it is extremely difficult to remain there for a long period of time. Furthermore, as the Commission has rightly pointed out, it can be inferred from the reports annexed to its application that the length of the queues at the entrance of each of the transit zones has decreased as from the date on which the waiting lists, mentioned in paragraph 122 of the present judgment, appeared, with only the persons placed in a favourable position on those lists being taken, by the Serbian authorities, to the strip of land separating the Serbian-Hungarian border from the entry gate of the transit zone concerned, on the eve of the date prescribed for those persons to enter that transit zone.", "126 It follows that the dissipation of the long queues at the entrance of the transit zones of Röszke and Tompa cannot call into question the finding that the Hungarian authorities decided to limit access to those zones drastically.", "127 Lastly, although, as Hungary recalls, it is indeed for Member States to ensure, inter alia, that external borders are crossed legally, in accordance with Regulation 2016/399, compliance with such an obligation cannot, however, justify the Member States’ infringement of Article 6 of Directive 2013/32.", "128 It follows from all the foregoing considerations that Hungary has failed to fulfil its obligations under Article 6 of Directive 2013/32, read in conjunction with Article 3 thereof, in providing that applications for international protection from third-country nationals or stateless persons who, arriving from Serbia, wish to access, in its territory, the international protection procedure, may be made only in the transit zones of Röszke and Tompa, while adopting a consistent and generalised administrative practice drastically limiting the number of applicants authorised to enter those transit zones daily.", "...", "254 In the case at hand, first, it should be noted that Hungary does not dispute that, under [section 5(1b) of the State Borders Act], third-country nationals staying illegally in its territory may be subject to forcible deportation beyond the border fence, without prior compliance with the procedures and safeguards provided for in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115. In that regard, it must be stated that the safeguards surrounding the intervention of the police services, put forward by Hungary and summarised in paragraph 240 of the present judgment, clearly cannot be regarded as corresponding to the safeguards provided for in Directive 2008/115.", "255 Second, contrary to what Hungary contends, the forced deportation of an illegally staying third-country national beyond the border fence erected in its territory must be treated in the same way as a removal from that territory.", "256 While it is true that, according to Article 3(5) of Directive 2008/115, removal means the physical transportation out of the Member State in enforcement of an obligation to return, the fact remains that the safeguards surrounding the return and removal procedures provided for in that directive would be deprived of their effectiveness if a Member State could dispense with them, even if it forcibly displaced a third-country national, which is, in practice, equivalent to transporting him or her physically outside its territory.", "257 Hungary acknowledges that the space between the border fence – beyond which illegally staying third-country nationals may be forcibly deported – and the Serbian-Hungarian border is merely a narrow strip of land devoid of any infrastructure. After having been forcibly deported by the Hungarian police to that narrow strip of land, the third-country national therefore has no choice other than to leave Hungarian territory and go to Serbia in order to be housed and fed.", "258 In that regard, it should be noted that, contrary to what Hungary submits, that national does not have the effective possibility of entering, from that strip of land, one of the two transit zones of Röszke and Tompa to make an application for international protection there.", "259 As has been noted in paragraph 128 of the present judgment, there was, at least until the end of the period laid down in the reasoned opinion issued by the Commission to Hungary [8 February 2018], a consistent and generalised practice of the Hungarian authorities consisting in drastically reducing access to those transit zones which rendered completely illusory the possibility, for an illegally staying third-country national forcibly deported beyond the border fence, of entering one of those transit areas at short notice.", "...", "266 It follows from all the foregoing considerations that, in allowing the removal of all third-country nationals staying illegally in its national territory, with the exception of those of them who are suspected of having committed an offence, without observing the procedures and safeguards laid down in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115, Hungary has failed to fulfil its obligations under those provisions.”", "26. On 27 January 2021 Frontex, the European Border and Coast Guard Agency, announced that it had suspended all its operational activities on the ground in Hungary until the latter implemented the CJEU’s above judgment. Prior to that, on 14 October 2016, the Fundamental Rights Officer of Frontex also expressed concerns about the potential human rights violations related to the migration policies at the Hungarian border (FRO observations, Situation at the Hungarian-Serbian border, 2016). The situation was described as follows:", "“The 8-km rule, which allows Hungarian border guards to send migrants stopped within 8 km of the Serbian border directly back to Serbia without any registration or opportunity to apply for international protection, poses serious risks to the right to asylum (Art. 18 [of the EU Charter on Fundamental Rights]), the prohibition of non ‑ refoulment (Art. 19) as Serbia is not a safe country of asylum according to UNHCR; and the prohibition against collective expulsions (Art. 19).", "The coercive tactics (e.g., beatings, dog bites, pepper spraying) allegedly used to enforce the 8-km rule have led to incidents that jeopardize the right to human dignity (Art. 1); the right to life (Art. 2); the right to the integrity of the person (Art. 3); and the prohibition of inhuman or degrading treatment (Art. 4).", "Hungary’s entry limit of 30 asylum-seekers per day impedes the right to asylum (Art. 19) of those forced to wait in Serbia, in particular for vulnerable groups for whom no prioritization system exists. Moreover, the dire humanitarian situation on the Serbian side can negatively impact the right to human dignity (Art. 1) and the rights of the child (Art. 24).”", "COuNCIL OF EUROPE DOCUMENTS", "27. The relevant Council of Europe documents are cited in N.D. and N.T. (cited above, §§ 53, 54 and 59).", "28. In a report (SG/Inf(2017)33) dated 13 October 2017 of the fact ‑ finding mission in June 2017 by Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, the following observations were made concerning Serbia and the Röszke and Tompa transit zones in Hungary:", "“Almost every migrant we have met in the asylum and reception centres that we visited in Serbia complained about the long waiting time, in most of the cases lasting for months, before his/her turn on “the list for Hungary” would come up.", "...", "It is my understanding that the waiting list for entry into Hungary is an informal practical tool that governs the migration flow from Serbia into Hungary. The authorities of the two countries do not have formal competence over it, do not play any formal role in its compilation and do not formally communicate with each other on any aspect related to this list. However, several discussions led me to conclude that staff members of the Serbian Commissariat for Refugees and Migration are involved informally in the selection of community leaders as well as in including names in the waiting list. Several people have reported to us that the information about their place on this list is communicated to them by Commissariat staff. There were also several allegations made by migrants and refugees that they had had to pay bribes to be included in or ranked higher on the waiting list. I have also heard that migrants and refugees who had not been able to pay the required fee were ranked further down the list or that their names disappeared completely from it.", "Despite the lack of any official status, the waiting list for admission into Hungary de facto determines the amount of time that migrants and refugees actually spend in asylum and reception centres in Serbia, which in most of the cases is several months ...", "...", "Also, the level of informality and the lack of transparency with which this waiting list is compiled and handled create a lot of suspicion that corruption is involved. Many migrants and refugees prefer dealing with smugglers to waiting for long periods of time until their turn on the list comes up. Hence, the waiting list should be seen as one of the many aspects contributing to a favourable environment for smuggling migrants and refugees in both Serbia and Hungary.", "...", "Pushbacks of migrants and refugees by competent authorities without acknowledging and assessing their asylum claims raise concerns regarding the respect of the principle of non-refoulement, which requires that states refrain from removing asylum-seekers without an individual assessment of their cases.", "...", "Due to the quotas restricting admission into Röszke and Tompa, many migrants and refugees try to enter Hungary illegally ... However, during a state of crisis caused by mass migration declared by the government, asylum applications can only be submitted in the transit zones. Migrants and refugees who have crossed into Hungary illegally and who are apprehended are rarely taken to these zones. During our visit in Serbia, notably in the reception centres of Sombor and Obrenovac, we met several persons, including unaccompanied children, who alleged that they had been apprehended by Hungarian police within Hungarian territory and, thereafter, returned to Serbia without passing through the transit zones. They alleged that violence had been used against them by the police; and they had been beaten or attacked with dogs.", "...", "While it is true that, generally speaking, the objective of migrants and refugees who entered Hungary illegally is only to transit through Hungary towards their countries of destination, it is clear that, in practice, they do not have a real opportunity to express their intention to seek asylum in Hungarian territory and to access the asylum procedure.”", "OTHER INTERNATIONAL MATERIALS", "29. The relevant international instruments and reports are summarised in N.D. and N.T. (cited above, §§ 62-67).", "30. In May 2016 the Office of the United Nations High Commissioner for Refugees (UNHCR) issued its observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016 in Hungary concerning refugees and asylum-seekers. It noted, inter alia, the following:", "“22. After the transit zones became operational on 15 September 2015, the Ministry of Interior informed UNHCR that a maximum of 10 asylum-seekers would be permitted to enter each transit zone at any one time, and a maximum of 100 asylum ‑ seekers a day per zone would be processed by the OIN between 06:00 and 22:00. On 21 February 2016, the processing capacity was reduced to 50 people a day and, on 22 March, following the introduction of level 2 security level in the whole country, it was further reduced to 30 people a day. However, such ceilings may be incompatible with Hungary’s obligations under EU law. The EU Asylum Procedures Directive (recast) makes express provision to ensure that basic principles and guarantees are respected in the event large numbers of asylum-seekers arrive and need to be dealt with under border procedures.", "23. In practice, OIN did not register 100 asylum applications per day. Between 15 and 19 September 2015, several thousand individuals arrived at Röszke wanting to enter Hungary and they were made to camp out in front of the entry door to the transit zone without water, food or shelter. Many left for Croatia after waiting for two days or more and only 352 individuals were allowed to enter and submit asylum applications. After 22 September 2015, UNHCR observed that single males and persons who were not visibly in need of special treatment were actively discouraged from approaching the transit zones. Official – government contracted – interpreters, told them that their asylum applications would be denied. Vulnerable people are not systematically prioritized and the lack of a clear admission system leads to frustration among the asylum-seekers. Families with small children have to wait outside the transit zone with no shelter, water or food. They are not given information on the procedures and interpretation is not always available.”", "31. In August 2016 UNHCR, in Europe’s Refugee Emergency Response Update #30, reported the following concerning the pre-transit zone areas at Röszke and Tompa:", "“Serbian authorities, UNHCR, partners and refugee community leaders continued to encourage asylum-seekers to move to governmental centres instead of camping in open spaces near the Hungarian border. Consequently, the number of asylum-seekers staying outdoors on the Serbian side in front of the Hungarian transit zones at Horgos and Kelebija border-crossings decreased to 280 at the end of the month, compared to its peak of over 1,000 in mid-July. Hungarian authorities continued to admit around 30 asylum-seekers daily through the transit zones in Horgoš and Kelebija [these are the transit zones of Röszke and Tompa]. At the same time, in August, UNHCR and partners encountered over 550 individuals claiming they were pushed back from Hungary without being allowed access to asylum procedures and protection in Hungary. Among those, several cases made serious allegations of use of force during the [pushbacks]. UNHCR remains deeply concerned about the restrictive law, increased reports of violence, and a deterioration of the situation at border with Serbia. Nearly 800 asylum-seekers and migrants entered Hungary in August out of which the police apprehended 345 people inside the country for crossing the border irregularly, while 418 people entered through the transit zones on the border with Serbia. Since the new border regulations came into force on 5 July 2016, allowing the police to return to the other side of the border fence people intercepted within 8 km from the border, the police reported that 8,201 people have been prevented from accessing the Hungarian territory. A total of 4,700 people were blocked entry upon attempting to cross the border irregularly and 3,501 were intercepted inside Hungary and escorted back to the other side of the border fence.", "...", "By the end of August, around 260 asylum-seekers and migrants (170 in Röszke and 80 in Tompa) were in the waiting areas without adequate shelter, awaiting admission into the transit zones while the daily admission rate remained 15 people per day in each transit zone. The average waiting time for families and UACs ranged between 30-70 days in Röszke, 35-50 days in Tompa and for single men up to 90 days. Therefore, many single men are resorting to smugglers to cross the border irregularly.”", "THE LAW", "PRELIMINARY issues", "32. The Government argued that the applicant had failed to prove that he had ever personally suffered the measure complained of. In particular, he had not applied for asylum in Hungary and had therefore not shown even a likelihood that he had been a victim of a violation within the meaning of Article 34 of the Convention. There was also no indication that had been sent back to Pakistan as a result of chain refoulement.", "33. They further argued that the medical certificate issued in Serbian and submitted by the applicant did not contain his name.", "34. The applicant argued that the evidence obtained from the authorities and in the criminal investigation file (see paragraph 15 above) supported beyond reasonable doubt his allegation that he, together with eleven other men, had been escorted by Hungarian officers from Hungary through the border fence towards Serbia on 12 August 2016 on the basis of section 5 of the State Borders Act. He further submitted that his name on the medical report had been misspelled.", "35. According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151). In the context of the expulsion of migrants, the Court has previously stated that where the absence of identification and personalised treatment by the authorities of the respondent State is at the very core of an applicant’s complaint, it is essential to ascertain whether the applicant has furnished prima facie evidence in support of his or her version of events. If that is the case, the burden of proof should shift to the Government ( see N.D. and N.T., cited above, § 85).", "36. In the present case, the Court notes that the applicant’s apprehension and escort to the external side of the border fence has been confirmed by the video footage provided by the Hungarian police, as well other information from official sources (see paragraphs 9, 10, 12 and 15 above). While it is true that the applicant changed his statement as regards his return to Pakistan following the events complained of, he himself acknowledged and corrected the initial misinformation (see paragraph 16 above). Having regard to the fact that his return to Pakistan is not the subject-matter of the present case, the Court finds that this element alone cannot be considered sufficient to undermine the credibility of his account concerning the measures taken against him on 12 August 2016.", "37. In such circumstances, the Court considers that the applicant has presented sufficient evidence of being apprehended and escorted to the external side of the border fence, which has not been refuted by the Government.", "38. In so far as the Government argued that the applicant had not lodged an application for international protection in Hungary, the Court observes that, in fact, he has not claimed to have lodged such an application. On the contrary, he complained of his inability to do so because of the limited access to the Röszke and Tompa transit zones. The Court notes that the question of whether or to what extent he was prevented from making his application for international protection in Hungary is closely linked and should thus be joined to the examination of the merits of his complaint under Article 4 of Protocol No. 4.", "39. Lastly, the Government also pointed out that the spelling of the name on the medical report which allegedly concerned the applicant’s examination in the hospital in Subotica did not correspond to that of the applicant (see paragraph 11 above). The Court notes that the present case concerns complaints under Article 4 of Protocol No. 4 and Article 13, and that the applicant lodged a separate application concerning his alleged ill ‑ treatment by the Hungarian police in which he relied on Article 3 of the Convention. It is therefore unnecessary to establish in the present case whether the applicant suffered injuries at the hands of the Hungarian police.", "40. In conclusion, the Court finds it sufficiently established that the applicant was apprehended and escorted to the external side of the border fence on 12 August 2016. As regards the Government’s objection of lack of victim status on account of the fact that the applicant did not lodge an application for international protection, the Court joins it to the examination of the merits of the complaint under Article 4 of Protocol No. 4.", "ALLEGED VIOLATION OF ARTICLE 4 of Protocol No. 4 to THE CONVENTION", "41. The applicant complained that he had been part of a collective expulsion, in violation of Article 4 of Protocol No. 4 to the Convention, which reads as follows:", "“Collective expulsion of aliens is prohibited.”", "AdmissibilityThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "42. The Government argued that the applicant’s complaint fell outside the ambit of Article 4 of Protocol No. 4, since the escort measure did not amount to either collective expulsion or expulsion in general, given that it was made to Hungarian territory and not Serbian territory. They emphasised that, under the relevant provision of the State Borders Act, those intercepted were escorted through the nearest gate in the temporary security border fence to the other side of the border fence situated in the direction of Serbia but in Hungarian territory. Although their “functional jurisdiction” in this border zone was limited on account of EU law concerning the external borders of the Schengen area, it was still Hungarian territory. People escorted through the gate were in a position to freely decide whether to apply for asylum in the transit zone or leave Hungarian territory. They could apply for asylum after a temporary return to Serbia, which at the time had been common practice. In support of their argument that the applicant’s complaint was incompatible ratione materiae with the Convention, the Government also submitted that “expulsion” carried with it an entry ban for a specific period, whereas the escort measure did not have such a legal consequence.", "43. The applicant argued that the “apprehension and escort” measure to which he had been subjected fell within the meaning of “collective expulsion”. In his view, the question of whether the external side of the fence to which he had been made to go was or was not part of Hungarian territory was irrelevant to the resolution of his case. The relevant question was whether he had had any practically feasible opportunity of accessing the Hungarian authorities and asylum procedure from the place to which he had been escorted. Any other view would make Article 4 of Protocol No. 4 devoid of its purpose in circumstances such as those in the present case. It was of particular importance that he had not been escorted to any of the transit zones with a view of having his asylum claim, based on Articles 2 and 3 of the Convention, examined. When attempting to reach any of the transit zones, he had had to enter Serbia irregularly. His return had thus been de facto expulsion to Serbia or at least to the so-called “no man’s land” between the two countries.", "44. The applicant further submitted that the classification of the measure under domestic law was irrelevant and that even under domestic law, not all expulsion decisions carried an entry ban.", "The Court’s assessment", "45. In order to determine whether Article 4 of Protocol No. 4 is applicable, the Court must seek to establish whether the Hungarian authorities subjected the applicant to “expulsion” within the meaning of that provision.", "46. The Court refers to the general principles summarised in M.K. and Others v. Poland (nos. 40503/17 and 2 others, §§ 197-200, 23 July 2020) and reiterates that it has interpreted the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others, cited above, § 243, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 174, ECHR 2012), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border (see N.D. and N.T ., cited above, § 185). It has also applied Article 4 of Protocol No. 4 to those who were apprehended in an attempt to cross a national border by land and were immediately removed from the State’s territory by border guards (ibid., § 187).", "47. Turning to the present case, the Court observes that the applicant, together with eleven other Pakistani nationals, entered Hungary in an unauthorised manner by cutting a hole in the border fence between Hungary and Serbia. He was intercepted some hours later when resting in a field. Together with the eleven other men, he was subjected to the “apprehension and escort” measure under section 5(1a) of the State Borders Act. The latter stipulated that within 8 km of the State border the police could intercept foreign persons unlawfully staying in Hungarian territory and escort them through the nearest gate in the border fence. After being removed to the external side of the border fence, the applicant, who had been injured, went to a reception centre in Subotica, Serbia, and from there was taken to a nearby hospital.", "48. Referring to the principles established in its case-law (see paragraph 46 above), the Court finds that the fact that the applicant entered Hungary irregularly and was apprehended within hours of crossing the border and possibly in its vicinity do not preclude the applicability of Article 4 of Protocol No. 4. Moreover, as regards the Government’s argument concerning the nature of the escort measure and its legal consequences (see paragraph 42 above), it is noted that Article 4 of Protocol No. 4 may apply even if the measure in question is not classified as “expulsion” in domestic law (see M.K. and Others, § 198, and Khlaifia and Others, §§ 243 and 244, both cited above). It remains to be examined whether the fact that the applicant was not removed directly to the territory of another State but to the strip of land which belonged to Hungary – that is to say the land between the border fence and the actual border between Hungary and Serbia – means that the impugned measure fell outside the scope of Article 4 of Protocol No. 4.", "49. The Court observes in this connection that the border fence which the applicant was made to cross had clearly been erected in order to secure the border between Hungary and Serbia. The narrow strip of land on the external side of that fence to which the applicant was escorted only had a technical purpose linked to the management of the border (see paragraph 17 above). There appears to have been no infrastructure on that strip of land and, as the respondent Government confirmed (see paragraph 42 above), in order to enter Hungary, deported migrants had to go to one of the transit zones, which normally involved crossing Serbia. The CJEU in its judgment of 17 December 2020 also found that migrants removed pursuant to section 5(1a) of the State Borders Act had no choice but to leave Hungarian territory (cited in paragraph 25 above, §§ 255-58). Another relevant, though not decisive, consideration is that according to the applicant and the statements of the officers who were standing on the external side of the border fence, he and the other men in the group were directed towards Serbia (see paragraphs 9 and 13 above). Having regard to the nature of the procedure to which he was subjected (see paragraph 9 above), the instruction given by the police officers could only be understood by him to be an order that had to be obeyed.", "50. In view of the above, the Court finds that the measure to which the applicant was subjected on 12 August 2016 aimed at and resulted in his removal from Hungarian territory. It reiterates that the object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161, and Hirsi Jamaa and Others, cited above, § 175). Bearing this in mind, the Court notes that relying merely on the formal status of the strip of land on the external side of the border fence as part of Hungarian territory and disregarding the practical realities referred to in the preceding paragraph would lead to Article 4 of Protocol No. 4 being devoid of practical effectiveness in cases such as the present case, and would allow States to circumvent the obligations imposed on them by virtue of that provision.", "51. While the Court accepts that the measure in question was aimed at preventing unauthorised border crossings at a time when Hungary was faced with a substantial influx of migrants, it emphasises that problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention (see Hirsi Jamaa and Others, cited above, § 179). The Court finds it appropriate to reiterate that the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see N.D. and N.T., cited above, § 110).", "52. Having regard to the foregoing, the Court considers that the removal of the applicant to the external side of the border fence amounted to expulsion within the meaning of Article 4 of Protocol No. 4. This provision is therefore applicable. The Government’s objection should be accordingly dismissed.", "53. Since this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, it must be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "54. The applicant argued that when being apprehended by the Hungarian police, he had clearly stated in English and Urdu that he wished to apply for asylum, but to no avail. Following his return to Serbia, he had had no direct access to the two transit zones, which had been the only available option to enter Hungary and claim asylum. He had thus been denied any opportunity to claim international protection or rely on the non-refoulement principle.", "55. The applicant pointed out that collective expulsions had become a daily routine since 5 July 2016. They had been done in a summary manner without any provision as to how the police should communicate with intercepted migrants and how they should register and deal with their claims and responses.", "56. The applicant further submitted that the transit zones could only be reached by irregularly crossing Serbia. Furthermore, even if the applicant could physically get to the location of the transit zones from Serbian territory, he would have had no real chance of gaining access to them as people were obliged to wait for several months in order to be granted access and have their asylum applications submitted. As regards the wait before the transit zone, the applicant referred to the reports by UNHCR and other organisations indicating the severe conditions in which those waiting to access the transit zone were made to live. He claimed to have endured inhumane conditions without the ability to meet basic human needs and in a state of uncertainty. He emphasised that he had attempted to register his name on the waiting list before and after the last removal on 12 August 2016 but had been denied the opportunity to do so.", "57. The Government explained that when escorting people under the State Borders Act, the police were obliged to supply them with multi-language information brochures, inform them of their violation of the law, the measure taken and its aim, the possibility and manner of filing a complaint against the police measure, the location of the nearest transit zone and the possibility of applying for asylum. After that, the police were obliged to escort those intercepted through the nearest gate in the temporary security border fence. Those concerned could apply for asylum in one of the transit zones after a temporary return to Serbia. If the asylum application was rejected, the decision on expulsion was taken in proceedings containing appropriate safeguards.", "The Court’s assessment", "(a) Relevant principles", "58. The Court refers to the principles concerning the “collective” nature of an expulsion summarised in N.D. and N.T. (cited above, §§ 193 ‑ 201). It reiterates that the decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (ibid., § 195). In line with this, in Hirsi Jamaa and Others v. Italy the Court found a violation of Article 4 of Protocol No. 4 because the applicants, who had been intercepted on the high seas, were returned to Libya without the Italian authorities carrying out any identification or examination of their individual circumstances (cited above, § 185).", "59. Exceptions to the above rule have been found in cases where the lack of an individual expulsion decision could be attributed to the applicant’s own conduct (see Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011). In the case of N.D. and N.T. (cited above), the Court considered that the exception absolving the responsibility of a State under Article 4 of Protocol no. 4 should also apply to situations in which the conduct of persons who crossed a land border in an unauthorised manner, deliberately took advantage of their large numbers and used force, was such as to create a clearly disruptive situation which was difficult to control and endangered public safety (§ 201). The Court added that in such situations, it should be taken into account whether in the circumstances of the particular case the respondent State provided genuine and effective access to means of legal entry, in particular border procedures, and if it did, whether there were cogent reasons for the applicants not to make use of it which were based on objective facts for which the respondent State was responsible (ibid.).", "(b) Application of the above principles to the present case", "60. In the present case, the applicant maintained that he had expressed his wish to apply for asylum during the police procedure leading to his return, but that this had been denied (see paragraphs 8 and 54 above). While the Government submitted that those removed pursuant to section 5(1a) of the State Borders Act, like the applicant, were given certain information about the possibility of applying for asylum in one of the transit zones (see paragraph 57 in connection with paragraph 20 above), it has not been disputed that the applicant was removed from Hungary without being subjected to any identification procedure or examination of his situation by the Hungarian authorities. This should lead to the conclusion that his expulsion was of a collective nature (see Hirsi Jamaa and Others, cited above, §§ 185 and 186), except if the lack of examination of his situation could be attributed to his own conduct (see paragraph 59 above). The Court will therefore proceed to examine whether in the circumstances of the present case and having regard to the principles developed in its case-law, in particular the judgment in N.D. and N.T. (cited above, see paragraph 59 above), the lack of individual removal decision can be justified by the applicant’s own conduct.", "61. The Court takes note of the fact that the applicant, together with eleven other migrants, crossed the Hungarian border in an unauthorised manner. However, the Government have not argued that their crossing of the border created a disruptive situation which was difficult to control, or that public safety was compromised as a result. The group, including the applicant, were apprehended after walking for several hours. The video footage submitted to the Court shows the presence of numerous officers, who encircled the men, transported them in a van and then escorted them through the gate in the border fence. According to the criminal investigation file, there were at least eleven officers present during the removal (see paragraphs 9, 10 and 15 above). There is no indication that the applicant or other men in the group used any force or resisted the officers. On the contrary, the video footage shows that the situation was entirely under the officers’ control and that the migrants, including the applicant, followed the orders given by the officers. The Court therefore considers that, apart from the applicant’s unauthorised manner of entry, the present case cannot be compared to the situation in N.D. and N.T., where the applicants were apprehended during an attempt to cross the land border en masse by storming the border fences (cited above, §§ 22, 166, 206 and 231). It will nevertheless proceed to examine whether, by crossing the border irregularly, the applicant circumvented an effective procedure for legal entry.", "62. The Court reiterates that with regard to Contracting States like Hungary, whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of the Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with international norms, including the Convention (see N.D. and N.T., cited above, § 209). The Court also observes that the Convention does not prevent States, in fulfilment of their obligation to control borders, from requiring applications for international protection to be submitted at the existing border crossing points (ibid., § 210). What is important is that such entry points secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner (ibid.).", "63. In the present case, it is uncontested that the only possibilities for the applicant to legally enter Hungary were the two transit zones, Tompa and Röszke, located approximately 40 km and 84 km respectively from the location to which the applicant was returned. The Court notes that once a person entered the transit zone and made a request for international protection, that request was dealt with in accordance with the procedure set out in the Asylum Act (see paragraphs 18 and 19 above). However, it does not need to assess the quality of that procedure because in the present case the applicant argued that he had had no realistic chance of entering the transit zones and making his request for international protection. He submitted that although he could physically reach the area surrounding the transit zones, he could not have made use of the asylum procedure because of the limited access to the transit zones resulting from the limit on the daily number of applications. Migrants could only enter the transit zone after being called from a waiting list on which they had to register their name beforehand. It took several months for single men to be called from the waiting list. Moreover, the applicant argued that he had tried to register his name on the aforementioned waiting list but that this had been denied because of his status as a single man (see paragraphs 6, 16 and 54 above).", "64. The Court observes that the above accounts of the applicant have not been refuted by the Government, who provided no information as to how the entries to the transit zones had been organised and managed at the material time. The Court, having regard to the applicant’s submissions corroborated by the reports of UNHCR, finds it established that at the time of the events in issue each transit zone admitted only fifteen applicants for international protection per day, which was significantly low (see paragraphs 30 and 31 above). It also finds it established that those wishing to enter the transit zone had to first register their name on the waiting list – an informal tool for establishing the order of entering the transit zones – and then potentially wait several months in Serbia before being allowed to enter (see paragraphs 25, 28 and 31 above). It further takes note of the applicant’s submission that he had in fact never been registered on the waiting list even though he had asked the person managing the list to add his name. In this regard, the Court observes that both UNHCR and the Special Representative of the Secretary General of the Council of Europe on Migration and Refugees pointed to irregularities and a lack of transparency in managing access to the transit zones and the handling of the waiting lists (see paragraphs 28 and 30 above). UNHCR also observed that single men who had not been visibly in need of special treatment had been actively discouraged from approaching the transit zones (see paragraph 30 above). In view of the foregoing and, in particular, the informal nature of this procedure, the applicant could not be criticised for not having his name added to the waiting list.", "65. Having regard to the limited access to the transit zones and lack of any formal procedure accompanied by appropriate safeguards governing the admission of individual migrants in such circumstances, the Court considers that the responded State failed to secure the applicant effective means of legal entry. The lack of an individual expulsion decision could not therefore be attributed to the applicant’s own conduct.", "66. In light of the above circumstances, the Court finds that the Government’s objection as to the applicant’s victim status based on the argument that he did not lodge an application for international protection (see paragraphs 32, 38 and 40 above) must be dismissed.", "67. In view of the fact that Hungarian authorities removed the applicant without identifying him and examining his situation, and having regard to the above finding that he did not have effective access to means of legal entry, the Court concludes that his removal was of a collective nature (see paragraph 59 above).", "68. There has therefore been a violation of Article 4 of Protocol No. 4 to the Convention.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION in conjuNction with Article 4 of Protocol No. 4 to the convention", "69. The applicant complained, under Article 13 of the Convention, that he had had no remedy at his disposal that would have enabled him to complain of a violation of Article 4 of Protocol No. 4 to the Convention. Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "Admissibility", "70. The Government argued that the complaint under Article 13 of the Convention was essentially identical to that under Article 4 of Protocol No. 4. They further argued that Article 13 was inapplicable because it did not provide for the right to challenge a Contracting State’s primary legislation before a national authority on the grounds that it was contrary to the Convention.", "71. The applicant argued that he was not contesting the legislation as such but was complaining about the measure taken against him based on it. He submitted that the application of the measure in question had clearly led to him being unable to apply for asylum and have access to domestic proceedings that complied with Article 13 requirements.", "72. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI).", "73. The Court notes that the applicant’s complaint does not concern the legislation as such but, as he rightly pointed out, the alleged lack of an effective remedy in relation to a particular measure taken against him. It further notes that the finding of a violation of Article 4 of Protocol No. 4 does not preclude it from also examining the applicant’s complaint under Article 13 taken together with of Article 4 of Protocol No. 4 (see, for instance, M.K. and Others, cited above, §§ 219-20). The finding of a violation (see paragraph 66 above), on the other hand, indicates that the complaint lodged by the applicant on this point is arguable for the purposes of Article 13 (see, for instance, Hirsi Jamaa and Others, § 201, and M.K. and Others, § 219, both cited above).", "74. The Court accordingly finds that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "75. The applicant argued that as his removal had not been accompanied by any procedural safeguards and no decision had been issued in that regard, he had had no effective way of challenging it. The law did not provide for any remedy against the removal carried out under section 5(1a) of the State Borders Act, but legalised the practice of summary and automatic expulsions. The applicant argued that he had had the right to have the credibility of his claims under Articles 2 and 3 of the Convention examined before his removal.", "76. The Government did not comment on the merits of this complaint apart from submitting that it raised no separate issue to that already raised under Article 4 of Protocol No. 4 taken alone.", "77. The Court notes that the scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by that provision must be “effective” in practice as well as in law (see, among many other authorities, Kudła, cited above, § 157). Where an applicant alleges that the expulsion procedure was “collective” in nature, he or she should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum (see Khlaifia and Others, cited above, § 279).", "78. Turning to the facts before it, the Court notes that the Government mentioned in connection with Article 4 of Protocol No. 4 that persons being removed pursuant to section 5(1a) of the State Borders Act were informed of their right to, inter alia, complain against the police measure (see paragraph 57 above). However, they did not indicate the legal basis for such a complaint, let alone submit any domestic case-law in this regard. In view of the foregoing, the Court finds that they failed to illustrate the effectiveness of the remedy to which they referred in their submissions (see, mutatis mutandis, Yarashonen v. Turkey, no. 72710/11, § 63, 24 June 2014). The Court further notes that the Government did not refer to any other remedy the applicant could have used to complain about his removal from Hungary and that no remedy appears to be provided for by law regulating such removals (see paragraph 18 above). Consequently, and in view of the above finding that the applicant had no effective access to the procedure for examining his personal situation because of the limited access to the transit zones, the Court considers that he did not have at his disposal any remedy which might satisfy the criteria under Article 13 of the Convention.", "79. There has accordingly been a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "80. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "81. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage for the emotional distress and damage to physical and mental health suffered as a result of the violations complained of.", "82. The Government argued that the claim was excessive.", "83. In view of the particular circumstances of the present case and the nature of the violations found, the Court considers that the sum claimed by the applicant is reasonable and awards him the amount in full, plus any tax that may be chargeable.", "Costs and expenses", "84. The applicant also claimed EUR 12,105 for the costs and expenses incurred before the Court. The sum corresponds to 80.5 hours of legal work at an hourly rate of EUR 150, plus EUR 30 for clerical expenses. The applicant’s representative submitted that, according to their agreement, the applicant would only be obliged to pay the costs of legal representation if he succeeded with the application before the Court.", "85. The Government argued that the expenses claimed were excessive, especially in view of the similarity of the applicant’s observations and annexes to those submitted in other cases by the applicant’s representative and the fact that a significant proportion of the applicant’s submissions were news articles and NGO reports lacking any probative value and thus relevance to the case.", "86. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.", "Default interest", "87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1985 and lives in Paris.", "8. The applicant comes from the Afghan province of Baghlan and is a member of the Tajik ethnic group. His family were land-owning farmers. His father was a member of the communist party and was a party representative in Ghuri. After the fall of the communist regime of Mohamad Najibullah, this political involvement by a Tajik was regarded as high treason. In particular, the applicant ’ s family faced hostility from a former warlord who had gone on to become a prominent local figure, Arab Nourak. The latter, a Pashtun and a former member of Jamiat - e Islami (an Islamic political party), appropriated the family ’ s possessions in 1992. At the end of 1992 a grenade was thrown into the applicant ’ s family home, and he sustained injuries to the head and thigh. The applicant claimed to have scars on his body as a result of that event. His father allegedly received a knee injury. The case file included a medical certificate drawn up on 7 April 2006 by a doctor at the Medical Committee for Exiles at the Bicêtre Hospital, Paris, who concluded :", "“ ... Mr Sultani informs me that he is from the Baghlan region. Following a conflict between his father and a local chief, a grenade was thrown at the family home. Mr Sultani states that he sustained injuries to the head and left thigh.", "In the course of the examination, several scars on the left parietal area of the scalp and a scar covering about a third of the outer left thigh were found.", "...", "The findings of the clinical examination are compatible with the patient ’ s statements. ”", "9. The applicant and his family left Afghanistan for Pakistan, staying first in Sorkhab, then in Quetta.", "10. The applicant claimed that he arrived in France in December 2002. On 25 March 2003 he applied for asylum. By a decision of 6 August 2003, the French Office for the Protection of Refugees and Stateless Persons ( “the OFPRA ” ) refused his application on the following grounds :", "“The applicant, who was questioned at the Office, referred to land disputes between his father and a local commander and stated that he had been obliged to leave his country of origin in 1991 or 1992. He initially lived in a camp on the Afghan- Pakistani border for several years before settling with his family in Quetta.", "Even supposing they were substantiated, and given the grounds having occasioned them, the time that has elapsed and the political changes that have since occurred in Afghanistan, the circumstances described cannot, however, justify the applicant ’ s refusal to return and to claim protection from the current authorities in his country of origin.”", "11. That decision was upheld on 13 May 2004 by the Refugee Appeals Board. On 5 July 2004 the applicant was directed to leave French territory.", "12. In December 2004 the applicant ’ s family was repatriated from Pakistan to their village of origin. They again encountered hostility from Arab Nourak who, supported by the new governor of Baghlan Province ( also a member of a radical Islamic party and, like Mr Nourak, an ethnic Pashtun ), refused to return their land. According to the applicant, his family were again obliged to seek refuge in the Pakistani town of Quetta. The applicant alleged that he had heard nothing from his relatives since that time.", "13. In the light of those events, the applicant alleged that he had intended to lodge a fresh application for asylum in France, but that he had been waiting to obtain further news from his family.", "14. On 21 September 2005 the applicant was arrested at the Square de Verdun in Paris, a place where Afghan nationals newly arrived in France frequently gathered. He was released on that occasion.", "15. On 14 December 2005 he was again arrested at the same location with other Afghan nationals. He alleged that the French police had carried out targeted arrests based on the nationality of those concerned, with a view to organising a “grouped flight” to deport them.", "16. On the same day he was made the subject of a prefectoral removal order, of a decision stipulating the country of destination and of an administrative detention order.", "17. The applicant applied to the Paris Administrative Court to have set aside the prefectoral order of 14 December 2005 and the separate decision naming Afghanistan as the country of destination. By a judgment of 17 December 2005, the judge appointed by the President of the Administrative Court dismissed the applicant ’ s request. The applicant appealed to the Paris Administrative Court of Appeal.", "18. On 16 December 2005, during a hearing with the liberties and detention judge at the Paris tribunal de grande instance, the applicant stated : “ I do not wish to return to my country of origin because I am afraid for my life. I have new information to include in my request for political asylum. I would like to see a doctor. ”", "19. In an order issued on the same date, the liberties and detention judge ordered that the administrative detention be extended by fifteen days, until 5 p.m. on 31 December 2005. The judge also noted :", "“the detainee raised complaints of a medical nature ... and requested political asylum; ...", "We order that the detainee be examined by a doctor from the forensic medicine unit at the Hôtel Dieu Hospital in order to determine whether his state of health is compatible with the detention and expulsion order. ”", "20. On 19 December 2005 the applicant and three other Afghan nationals (G., S. and D.) lodged an application with the Court, together with a request for application of Rule 39 of the Rules of Court.", "21. On 20 December 2005 the Paris Police Commissioner ’ s Office informed the applicant that he had been refused leave to remain, in a document dated 16 December 2005 and worded as follows :", "“You were arrested on 14 December 2005 and found to be in contravention of the legislation on aliens; you have now requested that your application for asylum be re-examined.", "This request, submitted out of time and in support of your [continued] detention, is clearly intended to circumvent an order for removal from French territory.", "In consequence, and in accordance with Articles L. 742-3, L. 742-6 of the Code on the conditions of entry and residence of aliens and the right of asylum, I refuse to grant you leave to remain. ...", "The re-examination of your request for refugee status will therefore be given priority treatment by the French Office for the Protection of Refugees and Stateless Persons under Articles L. 313-3, L. 313-5, L. 313-6, L. 313-7, L. 313-8, L. 313-9, L. 313-10 of the above-mentioned Code.", "Finally, an administrative measure of expulsion by prefectoral order may be taken in application of Articles L. 511-1 and L. 512-1 of the above-mentioned Code; however, this may not be enforced prior to the Office ’ s decision (Article L. 741-5 of the above-mentioned Code ). ”", "22. On the same date the acting President of the Second Section decided to indicate to the French Government, under Rule 39 of the Rules of Court, that it was desirable to refrain from deporting the applicant to Afghanistan. He also invited the Government to keep the Court informed of the applicant ’ s situation with regard to the proceedings on his asylum application and the medical examination ordered by the liberties and detention judge. In reply, the Government indicated that the applicant had been released from the Vincennes Administrative Detention Centre on 21 December 2005 and was free to circulate on French territory.", "23. On 20 December 2005 a grouped flight left France for Afghanistan.", "24. On 5 January 2006 the Court decided to extend the interim measure indicated under Rule 39 until further notice.", "25. On 6 January 2006 the prefecture summoned the applicant to an interview, scheduled for 13 January, to examine his administrative situation with a view to enforcement of the removal measure.", "26. On 9 January 2006 the OFPRA registered a second asylum application from the applicant. On 10 January 2006 the Director General of the OFPRA refused it on the following grounds:", "“In support of his application,", "Mr Noor Mohammad SULTANI", "Refers to the general situation in Afghanistan.", "In itself, however, this evidence is not sufficient to substantiate the fears of persecution or the existence of serious threats within the meaning of Articles L. 711-1 and L. 721-1 of the Code on the conditions of entry and residence of aliens and the right of asylum. Accordingly, it is not admissible.", "He submits a statement from an association for refugees.", "This, however, is a new item of evidence which refers to events that were previously argued. Accordingly, it is not admissible.", "He further claims that his family has again been persecuted by the henchmen of Arab Nourak, an influential local military leader in the Baghlan region, since their return to the Afghan territory. It is claimed that a cousin is currently being detained.", "However, the applicant ’ s statements, which are brief and vague, are not supported by any credible or decisive evidence capable of proving that the alleged facts are true and that his fears are well-founded.”", "27. On 10 February 2006 the applicant appealed against that decision to the Refugee Appeals Board.", "28. On 22 March and 11 May 2006 the applicant submitted the additional information requested by the Court and confirmed that he wished to pursue the application.", "29. On 4 July 2006 the Paris Administrative Court of Appeal dismissed the applicant ’ s appeal against the Paris Administrative Court ’ s judgment of 17 December 2005. It found, inter alia :", "“ On the lawfulness of the removal order:", "... Firstly, contrary to what is alleged by Mr Sultani, the expulsion order dated 14 December 2005, which sets out the considerations of law and of fact on which it is based, is supported by sufficient grounds; the prefect, who indicated that the appellant ’ s situation had been scrutinised, particularly with regard to his right to family life, examined the appellant ’ s personal situation;", "Secondly, the disputed removal order, the sole purpose of which is the removal from the territory of Mr Sultani, is not collective in nature; in any event, it does not therefore contravene the requirements of Article 4 of Protocol No. 4 to the European Convention on Human Rights ... which prohibits collective expulsions; nor can Mr Sultani validly rely either on the provisions of Article 6 of the Convention ..., which are not applicable to appeal judgments against removal orders, or on the provisions of Article 1 of Protocol No. 7 to the said Convention, published by decree of 24 January 1989, which are applicable only to aliens residing lawfully on the territory of a State;", "On the lawfulness of the additional decision naming the country of destination:", "Mr Sultani ’ s request for political asylum has been ... refused by decisions of the French Office for the Protection of Refugees and Stateless Persons and the Refugee Appeals Board; his second request for asylum, submitted on 9 January 2006, was rejected by a new decision by the Office on 10 January 2006; although Mr Sultani refers to the risk that he would run in the event of a return to Afghanistan, given the situation of civil war that exists in that country, that circumstance is not in itself capable of substantiating the risks alleged by the appellant in the event of return to his country of origin; he has not submitted any evidence concerning his personal situation which would make it possible to consider as substantiated [his argument] that there are circumstances which would constitute a legal impediment to expulsion to his country of origin; ...”", "..." ]

[ "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "69. The applicant complained of a violation of Article 4 of Protocol No. 4 to the Convention, which provides :", "“Collective expulsion of aliens is prohibited. ”", "70. The Government contested this view.", "...", "B. The merits", "1. The parties ’ submissions", "( a ) The Government", "72. According to the Government, the complaint under Article 4 of Protocol No. 4 was devoid of purpose in so far as the applicant was still on French territory when he submitted the complaint.", "73. The Government further claimed that the use by the French authorities of specific flights to transport a number of aliens to their countries of origin was based on practical considerations and could not be analysed as a practice of collective expulsion within the meaning of that provision. The introduction of such flights had been made necessary by the difficulty, and even impossibility, of obtaining seats on scheduled flights towards certain destinations, especially to countries to which there were few scheduled services from French airports.", "74. The Government emphasised the legislative guarantees and the supervision exercised by the administrative courts over decisions to expel illegal immigrants, which were always examined on the basis of detailed individual circumstances, and particularly in the light of the alleged risks of a violation of Article 3 in the event of return to the country of origin. Thus, the administrative courts would have no choice but to set aside expulsion orders based on nationality or ethnic origin.", "75. The Government considered that in the instant case the French authorities had complied with the Court ’ s case-law ( they referred to Andric v. Sweden ( dec .), no. 45917/99, 23 February 1999, and Čonka [ v. Belgium, no. 51564/99, ECHR 2002-I ] ) since no official statement announcing an intention on the part of the French authorities to conduct collective expulsions had preceded the introduction of reserved flights to Afghanistan and the applicant ’ s request had been responded to in an individualised and personal decision. When he was arrested on 21 September, and again on 14 December 2005, he was notified of a removal order issued against him on 14 December 2005, which concerned him personally and was a consequence of the direction to leave French territory issued to him on 5 July 2004, that is, more than a year previously.", "76. Finally, the Government drew attention to the scale of the margin of appreciation enjoyed by the States in organising operations to expel aliens who were unlawfully present on French territory.", "( b ) The applicant", "77. The applicant submitted that in a large number of cases “grouped flights” were an expedient enabling the Government to return aliens to countries in which the major airlines no longer wished to land for security reasons. He noted that direct flights no longer existed to Somalia, Ethiopia and Afghanistan. In this connection, he stated that the Ministry of Foreign Affairs advised French nationals against travelling to Afghanistan. He also noted that since the “joint return operations” had proved excessively onerous, the police were governed by profitability objectives and were subject to considerable pressure when preparing such flights.", "78. Contrary to what was argued by the Government, there was no effective individual and personalised examination of the risks in the event of return to the country of origin and French law provided no effective means of preventing the administrative authorities from carrying out collective expulsions. In this connection, the applicant emphasised the practical difficulties faced by a foreigner seeking to describe a risk of ill-treatment in the event of his or her removal from French territory. Furthermore, the administrative courts did not carry out a genuine individualised check of the lawfulness of the expulsion orders, since they merely validated the negative decisions issued by the OFPRA or the Refugee Appeals Board ... Finally, the administrative courts used the claim that an individualised removal order was issued in respect of every foreigner as a pretext for systematically dismissing arguments alleging a violation of Article 4 of Protocol No. 4. The individual decision, which was purely formal in nature, thus prevented acknowledgment of the collective nature of the removal.", "79. In support of his allegations concerning the collective nature of the impugned expulsion order, the applicant submitted several witness statements asserting that the police had arrested a group of Afghans on 14 December 2005. On that occasion, the police officers had allegedly carried out a “selection” by asking the people in the Square de Verdun to specify their nationality, and then arresting only those who were Afghan.", "80. The applicant further emphasised the importance of the circumstances preceding the “grouped flight” of 20 December 2005. He claimed that the flight in question had been planned : the Minister of the Interior had announced that it was imminent. Thus, as early as 27 July 2005, one day after a first Anglo-French “charter” flight expelling forty illegal Afghan immigrants, the Minister of the Interior had indicated that other flights were planned. The applicant annexed to his observations an article published on the website of Le Monde newspaper on 6 December 2005, quoting remarks made by the Minister of the Interior to the National Assembly: “ The Prime Minister and I are currently negotiating grouped flights with Iraq, Afghanistan and Somalia, in agreement with our English friends” in order to “return to their countries those people who believe that England is a new Eldorado and who end up in the Pale of Calais with no hope of finding either accommodation or employment. ”", "2. The Court ’ s assessment", "81. The Court draws attention to its case-law, whereby collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group. Thus, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis ( see Andric, cited above ).", "82. The Court further points out that, in order for a decision or measure favourable to the applicant to be sufficient to deprive him of his status as a victim, the national authorities must have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention ( see, among many other authorities, Lüdi v. Switzerland, 15 June 1992, § 34, Series A no. 238; Amuur v. France, 25 June 1996, § 36, Reports [ of Judgments and Decisions ] 1996 -III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000-IV). It is clear that these conditions were not fulfilled in the instant case, since it appears that the reason the applicant was not expelled on the collective flight of 20 December 2005 was because of the interim measure adopted by the Court on the basis of Rule 39 of its Rules of Court. The Government are therefore mistaken in alleging that the complaint under Article 4 of Protocol No. 4 has become devoid of purpose.", "83. With regard to the nature of the examination conducted by the national authorities, the Court notes that, in the instant case, the applicant submitted two asylum requests to the French authorities, including one subsequent to the removal order issued against him. Those requests enabled him to set out the arguments against his expulsion to Afghanistan before the OFPRA and, in the context of the first request, the Refugee Appeals Board. In their decisions rejecting those requests, and particularly the request of 10 January 2006, the domestic authorities took account not only of the overall context in Afghanistan, but also of the applicant ’ s statements concerning his personal situation and the risks he would allegedly run in the event of a return to his country of origin. Accordingly, the Court notes that the applicant ’ s situation was indeed examined individually and provided sufficient grounds for the contested expulsion ( contrast, Čonka, cited above ).", "84. In those circumstances, the Court considers that the applicant ’ s deportation from French territory would not amount to a violation of Article 4 of Protocol No. 4.", "..." ]

[ "I. THE BACKGROUND TO THE CASE", "15. The autonomous city of Melilla is a Spanish enclave of 12 sq. km located on the north coast of Africa and surrounded by Moroccan territory. It lies on the migration route from North and sub-Saharan Africa which is also used by Syrian migrants. The border between Melilla and Morocco is an external border of the Schengen Area and thus provides access to the European Union. As a result, it is subject to particularly intense migratory pressure.", "16. The Spanish authorities have built a barrier along the 13 km border separating Melilla from Morocco, which since 2014 has comprised three parallel fences. The aim is to prevent irregular migrants from accessing Spanish territory. The barrier consists of a six-metre-high, slightly concave, fence (“the outer fence”); a three-dimensional network of cables followed by a second, three-metre-high fence; and, on the opposite side of a patrol road, another six-metre-high fence (“the inner fence”). Gates have been built into the fences at regular intervals to provide access between them. A sophisticated CCTV system (including infrared cameras), combined with movement sensors, has been installed and most of the fences are also equipped with anti-climbing grids.", "17. There are four land border crossing points between Morocco and Spain, located along the triple fence. Between these crossings, on the Spanish side, the Guardia Civil has the task of patrolling the land border and the coast to prevent illegal entry. Mass attempts to breach the border fences are organised on a regular basis. Groups generally comprising several hundred aliens, many of them from sub-Saharan Africa, attempt to enter Spanish territory by storming the fences described above. They frequently operate at night in order to produce a surprise effect and increase their chances of success.", "18. Those migrants who do not manage to evade the Guardia Civil, and whom the officials succeed in persuading to come down of their own accord using ladders, are taken back immediately to Morocco and handed over to the Moroccan authorities, unless they are in need of medical treatment (see paragraph 58 below).", "19. At the time of the events this modus operandi was provided for only by the Guardia Civil “Border control operations protocol” of 26 February 2014 and by service order no. 6/2014 of 11 April 2014 (see paragraph 37 below).", "20. On 1 April 2015 the tenth additional provision of Institutional Law no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) came into force. The additional provision was inserted by means of Institutional Law no. 4/2015 of 30 March 2015 laying down special rules for the interception and removal of migrants in Ceuta and Melilla (see paragraphs 32-33 below).", "II. THE CIRCUMSTANCES OF THE CASE", "A. Origins of the case", "21. The first applicant was born in 1986 and the second applicant in 1985.", "22. The first applicant left his village in Mali on account of the 2012 armed conflict. After spending a few months in a refugee camp in Mauritania and then in Algeria, he arrived in Morocco in March 2013 and reportedly lived in the “informal” migrants’ camp on Mount Gurugu, close to the Melilla border. He stated that there had been several raids by the Moroccan security forces and that he had broken his leg during the summer of 2014 while fleeing from them.", "23. The second applicant arrived in Morocco in late 2012 after travelling through Mali. He also stayed in the Mount Gurugu migrants’ camp.", "B. The events of 13 August 2014", "24. On 13 August 2014 two attempted crossings took place, organised by smuggling networks: one at 4.42 a.m. involving 600 people, and another at 6.25 a.m. involving 30 people. The applicants stated that they had taken part in the first of these. They had left the Mount Gurugu camp that day and tried to enter Spain together with their group, scaling the outer fence together with other migrants. According to the Government, the Moroccan police prevented around 500 migrants from scaling the outer fence, but around a hundred migrants nevertheless succeeded. Approximately seventy ‑ five migrants managed to reach the top of the inner fence, but only a few came down the other side and landed on Spanish soil, where they were met by the members of the Guardia Civil. The others remained sitting on top of the inner fence. The Guardia Civil officials helped them to climb down with the aid of ladders, before escorting them back to Moroccan territory on the other side of the border through the gates between the fences.", "25. The first applicant stated that he had managed to reach the top of the inner fence and had remained there until the afternoon. The second applicant said that he had been struck by a stone while he was climbing the outer fence and had fallen, but had subsequently managed to get to the top of the inner fence, where he had remained for eight hours. At around 3 p.m. and 2 p.m. respectively the first and second applicants reportedly climbed down from the fence with the help of Spanish law-enforcement officials who provided them with ladders. As soon as they reached the ground they were allegedly apprehended by Guardia Civil officials who handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities. The applicants alleged that they had not undergone any identification procedure and had had no opportunity to explain their personal circumstances or to be assisted by lawyers or interpreters.", "26. The applicants were then reportedly transferred to Nador police station, where they requested medical assistance. Their request was refused. They were allegedly taken subsequently, together with other migrants who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had been returned to Morocco on 13 August 2014.", "27. Journalists and other witnesses were at the scene of the attempt to storm the border fences and the subsequent events. They provided video-footage which the applicants submitted to the Court.", "C. The applicants’ subsequent entry into Spain", "28. On 2 December and 23 October 2014 respectively, in the context of further attempts to storm the fences, the first and second applicants succeeded in climbing over the fences and entering Melilla. Two sets of proceedings were instituted against them. The applicants were subsequently issued with expulsion orders.", "29. An order for the first applicant’s expulsion was issued on 26 January 2015. He was accommodated in the temporary detention centre for aliens (CETI) in Melilla before being transferred to the Barcelona CETI in March 2015.", "He lodged an administrative appeal ( recurso de alzada ) against the expulsion order.", "On 17 March 2015, while this appeal was still pending, the first applicant lodged an application for international protection. His application was rejected on 23 March 2015 on the grounds that it was unfounded and that the applicant was not at risk, as the UNHCR office had issued an opinion on 20 March 2015 finding that the first applicant’s circumstances did not justify granting him international protection. A request for review lodged by the applicant was rejected by a decision of the Interior Ministry’s Asylum and Refugees Office on 26 March 2015, following a further negative UNHCR opinion issued on the same day.", "The stay of the administrative expulsion proceedings was therefore lifted and the first applicant was sent back to Mali by airplane on 31 March 2015.", "The previous day an appeal against the decision refusing international protection had been lodged with the administrative courts, but was withdrawn by the applicant’s representative on 15 September 2015.", "The first applicant’s administrative appeal against the order for his expulsion was declared inadmissible by a decision of 19 May 2015. As no appeal against that decision was lodged with the administrative courts, the order became final on 26 September 2015.", "According to the first applicant’s account, he has been living in very precarious circumstances since his return to Mali and has no fixed address.", "30. An order for the second applicant’s expulsion was issued on 7 November 2014 and was upheld on 23 February 2015 following the dismissal of his administrative appeal ( de alzada ). He was accommodated in the Melilla CETI and in November 2014 was transferred to the Spanish mainland. The order for his expulsion became final on 11 July 2015. The second applicant did not apply for international protection. On expiry of the maximum period of 60 days’ immigration detention he was released. Since then he has apparently been staying unlawfully in Spain, probably in Andalusia and without any fixed address, according to the statements made by his lawyers at the hearing before the Court.", "31. Both applicants were represented by lawyers during these proceedings." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "I. DOMESTIC LAW AND PRACTICE", "A. Institutional Law no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”)", "32. The relevant provisions of the LOEX as in force at the material time read as follows:", "Section 25 – Conditions for entering Spain", "“1. Aliens seeking to enter Spain must do so at the authorised border crossing points. They must be in possession of a passport or travel document that provides proof of their identity and is accepted for that purpose under the international conventions to which Spain is a party, and must not be subject to an explicit entry ban. They must also present the documents required by the implementing regulations [of the present Law] explaining the purpose and conditions of their stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or have the means of obtaining them lawfully.", "...", "3. The preceding paragraphs shall not apply to aliens claiming the right of asylum on entering Spain. Such claims shall be dealt with under the specific legislation on asylum.”", "Section 27 – Issuance of visas", "“1. Visas shall be requested and issued in the Spanish diplomatic missions and consulates, save in the exceptional circumstances laid down in the regulations or in those cases where the Spanish State, in accordance with the Community legislation in this sphere, has entered into a representation agreement with another European Union Member State concerning transit or residence visas.", "...”", "Section 58 – Effects of expulsion and removal ( devolución )", "“...", "3. The creation of an expulsion file is not required for the removal of aliens who", "...", "(b) attempt to enter the country illegally;", "...”", "Section 65 – Possibility of appeal against decisions concerning aliens", "“...", "2. In all cases, where the alien concerned is not in Spain, he or she may submit the relevant administrative or judicial appeals through the diplomatic or consular representations, which shall forward them to the competent authorities.”", "33. Institutional Law no. 4/2015 of 30 March 2015 on the protection of citizens’ safety introduced the tenth additional provision into the LOEX. The provision has been in force since 1 April 2015 (after the events in the present case). It lays down special rules for the interception and removal of migrants in Ceuta and Melilla. The provision in question reads as follows:", "“1. Aliens attempting to penetrate the border containment structures in order to cross the border in an unauthorised manner, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their illegal entry into Spain.", "2. Their return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain.", "3. Applications for international protection shall be submitted in the places provided for that purpose at the border crossing points; the procedure shall conform to the standards laid down concerning international protection.”", "B. Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection", "34. The relevant provisions of the Law on asylum read as follows:", "Section 21 – Requests made at a border crossing point", "“1. Where a person not satisfying the conditions for entry into Spain applies for international protection at a border crossing point, the Minister of the Interior may declare the application inadmissible by a reasoned decision where it falls into one of the categories referred to in section 20(1). In any event the decision shall be served on the person concerned within a maximum period of four days from submission of the application.", "...”", "Section 38 – Applications for international protection in embassies and consulates", "“In order to examine applications made outside the country, and provided that the applicant is not a national of the State in which the diplomatic representation is located and that there is a risk to his or her physical integrity, the ambassadors of Spain may facilitate the transfer of the asylum-seeker or asylum-seekers to Spain for the purposes of submitting an asylum claim in accordance with the procedure laid down by this Law.", "The implementing rules for this Law shall lay down expressly the conditions of access to the embassies and consulates for persons seeking international protection, and the procedure for assessing the need to transfer them to Spain.”", "C. Royal Decree no. 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum)", "35. The relevant provisions of Royal Decree no. 203/1995 read as follows:", "Article 4 – Place of lodging of the application", "“1. Aliens seeking asylum in Spain shall lodge their application with one of the following entities:", "(a) the Asylum and Refugees Office;", "(b) the border posts for entry into Spanish territory;", "(c) Aliens Offices;", "(d) the provincial or district police stations designated by ministerial order;", "(e) Spain’s diplomatic missions or consulates abroad.", "2. Where the UNHCR’s representative in Spain makes a request to the Spanish Government for the urgent admission of one or more refugees under UNHCR’s mandate who are at high risk in a third country, the Ministry of Foreign Affairs, via the diplomatic mission or consulate of Spain or of another country ... shall issue visas ... to facilitate the transfer of the persons concerned to Spain in conformity with Articles 16 and 29 (4) of this decree.”", "Article 16 – Transfer of the asylum-seeker to Spain", "“Where the person concerned is at risk and has submitted his or her application from a third country through a diplomatic mission or a consulate or in the circumstances provided for in Article 4 (2), the Asylum and Refugees Office may submit the case to the Inter-ministerial Committee on Asylum and Refugees with a view to authorising the person’s transfer to Spain pending examination of the file, after the issuance of the corresponding visa, laissez-passer or entry authorisation, which shall be processed as a matter of urgency.", "2. The Asylum and Refugees Office shall communicate the approval of the Inter ‑ ministerial Committee to the Ministry of Foreign Affairs and to the Directorate-General of Police, which shall inform the relevant border post.", "3. An asylum-seeker whose transfer to Spain has been authorised on account of the risks he or she faces shall be informed of his or her rights under Part 2 of Chapter I of this decree. He or she shall have a maximum period of one month from his or her entry into Spanish territory in which to exercise those rights.", "4. The competent body of the Ministry of Social Affairs shall adopt the appropriate measures for reception of the asylum-seeker by the designated public or private institution.”", "Article 24 – General processing rules", "“1. The interested party may submit such documentation and additional information as he or she considers appropriate, and formulate such allegations as he or she deems necessary in support of his or her application, at any time during the processing of the file by the Asylum and Refugees Office. These actions must be verified prior to the hearing preceding the sending of the file to the Inter-ministerial Committee on Asylum and Refugees, in accordance with section 6 of Law no. 5/1984, which governs the right to asylum and refugee status.", "2. The Asylum and Refugees Office may request such reports as it deems appropriate from the organs of the State administration or from any other public entity.", "3. Likewise, the reports of UNHCR and of the legally recognised associations providing advice and assistance to refugees shall be included in the file where appropriate.", "4. The maximum period for processing the file shall be six months. If no decision has been taken on the asylum application on expiry of this period, the application may be considered to have been rejected, without prejudice to the obligation of the administrative authorities to take an express decision. In cases where the application is processed by a diplomatic or consular mission, the six-month period shall begin to run from the date of receipt of the application by the Asylum and Refugees Office.", "5. Where the procedure is halted for reasons attributable to the asylum-seeker, the Asylum and Refugees Office shall inform him or her that the procedure will expire after three months. If this period expires without the individual in question carrying out the necessary actions to revive the procedure, the procedure shall be discontinued and the interested party shall be notified at his or her last known address.”", "Article 29 – Effects of granting asylum", "“...", "4. Where the applicant has presented his or her application at a Spanish diplomatic or consular mission, these entities shall issue the visa or entry authorisation necessary for his or her travel to Spain, together with a travel document if necessary, as provided for by Article 16.”", "D. Royal Decree no. 557/2011 of 20 April 2011 (implementing regulations for the LOEX)", "36. The relevant provisions of Royal Decree no. 557/2011 read as follows:", "Article 1 – Entry via authorised crossing points", "“1. Without prejudice to the provisions of the international conventions to which Spain is a party, aliens seeking to enter Spanish territory must do so via the authorised border crossing points. They must be in possession of a valid passport or travel document that provides proof of their identity and is accepted for that purpose, and, where required, of a valid visa. They must not be subject to an explicit entry ban. They must also present the documents required by these regulations explaining the purpose and conditions of their entry and stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or, where applicable, that they have the means of obtaining them lawfully.", "...”", "Article 4 – Conditions", "“1. The entry of foreign nationals into Spanish territory shall be subject to compliance with the following conditions.", "(a) They must be in possession of the passport or travel documents referred to in the next Article.", "(b) They must be in possession of the relevant visa in accordance with Article 7.", "(c) [They must present] supporting documents concerning the purpose and conditions of their entry and stay, in accordance with Article 8.", "(d) [They must provide] a guarantee, where applicable, that they have sufficient funds to live on for the expected duration of their stay in Spain, or that they have the means of obtaining those funds, and sufficient funds for travel to another country or return to the country from which they arrived, in accordance with Article 9.", "(e) They must present, where applicable, the health certificates referred to in Article 10.", "(f) They must not be subject to an entry ban for the purposes of Article 11.", "(g) They must not present a danger to public health, public order, national security or Spain’s international relations or those of other States to which Spain is linked by a convention for this purpose.", "2. The Office of the Commissioner-General for Aliens and Borders ( Comisaría General de Extranjería y Fronteras ) may grant permission to enter Spain to aliens not satisfying the conditions set forth in the previous paragraph, where this is justified on exceptional humanitarian or public-interest grounds or in order to comply with the undertakings entered into by Spain.”", "Article 23 – Removals", "“1. In accordance with section 58(3) of the LOEX, the creation of an expulsion file is not necessary ... for the removal of aliens in the following circumstances.", "...", "(b) Persons attempting to enter the country illegally. Aliens intercepted at the border or in the vicinity will be considered to fall into this category.", "2. In the cases covered by sub-paragraph (b) above, members of the coastal and border security forces who apprehend an alien attempting to enter Spain in an unauthorised manner shall take him or her to the police station immediately with a view to his or her identification and, where applicable, removal.", "3. In all cases covered by paragraph 1, aliens in respect of whom steps are being taken with a view to the adoption of a removal order shall have the right to be assisted by a lawyer, and by an interpreter if they do not understand or speak the official languages used. Such assistance shall be free of charge where the person concerned lacks the necessary financial resources ...”", "E. The Guardia Civil border control operations protocol of 26 February 2014 (as applicable at the relevant time), which introduced the term “operational border”", "37. The parts of the border control operations protocol of relevance to the present case read as follows:", "“With this system of fences, there is an objective need to determine when illegal entry has failed and when it has taken place. This requires defining the line which delimits the national territory, for the sole purpose of the rules governing aliens, a line which takes the physical form of the fence in question. Hence, where attempts by migrants to cross this line illegally are contained and repelled by the law ‑ enforcement agencies responsible for controlling the border, no actual illegal entry is deemed to have taken place. Entry is deemed to have been effected only where a migrant has penetrated beyond the above-mentioned internal fence, thereby entering the national territory and coming within the scope of the rules governing aliens ...”", "F. Circular letter to all Spanish ambassadors", "38. The relevant parts of this circular read as follows:", "“Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection, published in the Official Gazette on Saturday 31 October 2009 ...", "[Section 38 of this Law concerns ‘persons applying for international protection in embassies and consulates’]", "...", "The key elements of this section are as follows.", "(1) This section is not applicable if the person concerned is a national of the country where the diplomatic representation is located.", "(2) In addition, his or her physical integrity must be at risk from causes linked to the scope of application of the Law (asylum or subsidiary protection).", "(3) It is the task of Spanish ambassadors (but under no circumstances of consuls) to ‘facilitate [where appropriate] the transfer of the asylum-seeker or asylum-seekers to Spain’ for the sole purpose of ‘submitting the asylum claim in accordance with the procedure laid down by this Law’, that is to say, in Spain. This authority lies with the ambassadors alone.", "At all events neither ambassadors nor consuls are authorised by law to take a decision on applications for asylum or protection, still less to inform Spain thereof. This is crucial. If such a decision were to be taken, the Spanish State would be obliged to provide [the asylum-seeker with] legal assistance and protection [including against refoulement from the country] and to meet his or her needs (in terms of food and housing), including healthcare needs; section 38 makes no provision for this.", "Consequently, the fact that someone seeks to lodge an asylum application with an embassy or consulate does not in any circumstances entail the start of a procedure for possible admission.", "This does not prevent the ambassador, if he or she has determined that the conditions set out above are satisfied in a given case, from confirming the actual nationality [of the person concerned] and verifying whether his or her physical safety is at risk in the manner described above. Every effort must be made to obtain as much information as possible and to compile full records of the case and the allegations made by the potential applicant for asylum or protection. These are to be sent to the Directorate of Consular Affairs and Migration so that the supervisory authority can take cognisance of them, assess them and take a decision.", "In sum, if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum-seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry).", "The second sub-section of section 38 provides for the adoption of implementing regulations, to be drawn up jointly by the Ministries of the Interior, Justice and Foreign Affairs. These regulations will lay down the procedure enabling ambassadors to assess the issue of possible transfer to Spain.", "With regard to proceedings already in progress, the first transitional provision provides, where relevant, for application of the rules in force prior to the entry into force of the new Law (which will apply as of today, 20 November 2009).", "For new cases, and until such time as the implementing rules for the Law, referred to in the second sub-section of section 38, enter into force, you should follow the instructions set out in this circular.", "...", "Madrid, 20 November 2009”.", "G. The Spanish Ombudsperson’s Office", "39. In his 2005 annual report, the Spanish Ombudsperson wrote as follows:", "“As regards the issue whether the border zone should be regarded as Spanish territory and, accordingly, which rules are applicable to it, [it can be asserted, in] the light of the various conventions signed during the nineteenth century between Spain and Morocco defining the jurisdictional limits of the autonomous city of Melilla, that the zone is constructed ... on Spanish territory, that Spain has full ownership [of the area in question] and that it is controlled by the Spanish law-enforcement agencies. It is therefore not for the Spanish administrative authorities to determine where our country’s legislation should start to apply. That territorial application is governed by international treaties or, where applicable, by international custom, which define the borders with neighbouring States.”", "40. In presenting her 2013 annual report to the Senate on 9 April 2014 the Spanish Ombudsperson “deplored the heart-rending images of people who had climbed to the top of the fences and stressed that once a person was on Spanish territory – as we believe to be the case [when he or she is on the fences of the Melilla border] – he or she should be dealt with in accordance with the law in force”. The Ombudsperson therefore condemned the practice of immediate removals ( devoluciones en caliente ), which, she reiterated, were not provided for under the LOEX.", "II. EUROPEAN UNION LAW", "A. Treaty on European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009)", "41. The relevant Articles of the Treaty on European Union provide as follows:", "Article 2", "“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities ...”", "Article 6", "“ 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.", "...", "3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”", "B. Charter of Fundamental Rights of the European Union", "42. The relevant provisions of the Charter read as follows:", "Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 18 – Right to asylum", "“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”", "Article 19 - Protection in the event of removal, expulsion or extradition", "“1. Collective expulsions are prohibited.", "2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”", "Article 47 – Right to an effective remedy and to a fair trial", "“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.", "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone is to have the possibility of being advised, defended and represented.", "Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”", "C. Treaty on the Functioning of the European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009)", "43. The relevant provisions of the Treaty on the Functioning of the European Union (TFEU) provide:", "AREA OF FREEDOM, SECURITY AND JUSTICE", "CHAPTER 1", "General provisions", "Article 67", "“1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.", "2. It ... shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third ‑ country nationals ...”", "Article 72", "“This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.”", "CHAPTER 2", "Policies on border checks, asylum and immigration", "Article 77", "“1. The Union shall develop a policy with a view to:", "(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;", "(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;", "(c) the gradual introduction of an integrated management system for external borders.", "2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:", "(a) the common policy on visas and other short-stay residence permits;", "(b) the checks to which persons crossing external borders are subject;", "(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;", "(d) any measure necessary for the gradual establishment of an integrated management system for external borders;", "(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.", "3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.", "4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.”", "Article 78(1 )", "“1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.”", "Article 79", "“1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.", "2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:", "(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;", "...", "(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;", "...”", "D. The Agreement on the accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990", "44. The relevant parts of this Agreement read as follows:", "“...", "III. The Contracting Parties take note of the following declarations by the Kingdom of Spain:", "Declaration concerning the cities of Ceuta and Melilla;", "(a) The current controls on goods and travellers coming from the cities of Ceuta and Melilla prior to their introduction into the customs territory of the European Economic Community shall continue to be applied by Spain in accordance with the provisions of Protocol 2 of the Act of Accession of Spain to the European Communities.", "(b) The specific visa exemption regime for small border traffic between Ceuta and Melilla and the Moroccan provinces of Tetuan and Nador will also continue to apply.", "(c) Moroccan nationals not residents in the provinces of Tetuan and Nador and wishing to enter exclusively the cities of Ceuta and Melilla shall remain subject to a visa requirement. The validity of this visa will be limited to the two above-mentioned cities and will allow multiple entries and exits (\" visado limitado múltiple \"), in accordance with the provisions of Articles 10(3) and 11(1)(a) of the 1990 Convention.", "(d) In applying this regime the interests of the other Contracting Parties shall be taken into account.", "(e) In application of its national legislation and in order to verify whether passengers continue to comply with the conditions listed in Article 5 of the 1990 Convention, by virtue of which they were authorised to enter national territory upon passport control at the external border, Spain will maintain controls (identity and document controls) on sea and air connections from Ceuta and Melilla having as their sole destination any other place on Spanish territory.", "To this same end, Spain shall maintain checks on domestic flights and on regular ferry connections departing from the cities of Ceuta and Melilla to a destination in another State party to the Convention.”", "E. Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)", "45. The relevant provisions of the Schengen Borders Code read as follows:", "“THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,", "...", "Whereas:", "...", "(6) Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations.", "...”", "Article 1 - Subject matter and principles", "“This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the Union.", "It lays down rules governing border control of persons crossing the external borders of the Member States of the Union.”", "Article 4 – Crossing of external borders", "“1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day.", "...", "3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. These penalties shall be effective, proportionate and dissuasive.”", "Article 6 – Conduct of border checks", "“1. Border guards shall, in the performance of their duties, fully respect human dignity.", "Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures.", "2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”", "Article 7 - Border checks on persons", "“1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter.", "...", "2. All persons shall undergo a minimum check in order to establish their identities on the basis of the production or presentation of their travel documents. Such a minimum check shall consist of a rapid and straightforward verification, where appropriate by using technical devices and by consulting, in the relevant databases, information exclusively on stolen, misappropriated, lost and invalidated documents, of the validity of the document authorising the legitimate holder to cross the border ...", "3. On entry and exit, third-country nationals shall be subject to thorough checks. ...”", "Article 12 – Border surveillance", "“1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally.", "...”", "Article 13 - Refusal of entry", "“1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.", "...”", "Article 14 - Staff and resources for border control", "“Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 6 to 13, in such a way as to ensure an efficient, high and uniform level of control at their external borders.”", "F. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification)", "46. The codified version of Articles 14 and 15 of the Schengen Borders Code corresponds to former Articles 13 and 14.", "G. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (“the Return Directive”)", "1. The text of the Directive", "47. The relevant provisions of the Return Directive read as follows:", "Article 1 – Object", "“This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.”", "Article 2 – Scope", "“1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.", "2. Member States may decide not to apply this Directive to third-country nationals who:", "(a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;", "...”", "Article 4 – More favourable provisions", "“...", "3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive.", "4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall:", "(a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1) (b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and", "(b) respect the principle of non-refoulement.”", "Article 5 – Non-refoulement, best interests of the child, family life and state of health", "“ When implementing this Directive, Member States shall take due account of:", "(a) the best interests of the child;", "(b) family life;", "(c) the state of health of the third-country national concerned,", "and respect the principle of non-refoulement.”", "Article 8 – Removal", "“1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.", "...”", "Article 12 – Form", "“ 1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.", "The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.", "...”", "Article 13 – Remedies", "“1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.", "2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.", "3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance.", "4. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.”", "2. Relevant case-law of the CJEU in relation to this Directive", "48. The principles established by the case-law of the Court of Justice of the European Union (“the CJEU”) concerning the right to be heard under the Return Directive are set out in detail in the judgment in Khlaifia and Others (cited above, §§ 42-45).", "In a recent ruling (judgment of 7 June 2016, Affum, C-47/15), the CJEU clarified the interpretation to be given to Article 2 § 2 (a) of that directive, stating that it concerned third-country nationals who had been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it had been so crossed.", "The relevant paragraphs of the judgment read as follows:", "“72. Finally, still in relation to that second situation, Article 2(2)(a) of Directive 2008/115 specifies that the apprehension or interception of the third-country nationals concerned must take place ‘in connection with the irregular crossing’ of an external border, which, as Ms Affum, the Greek Government and the Commission submit in essence, and as the Advocate General has observed in point 41 of his Opinion, implies a direct temporal and spatial link with that crossing of the border. That situation therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed.", "73. In the second place, it is to be noted that the exception provided for in Article 2(2)(a) of Directive 2008/115, unlike the exception provided for in Article 2(2)(b), is coupled with certain obligations which are set out in Article 4(4) of the directive.", "74. The fact that Article 4(4) of Directive 2008/115 thus regulates in detail the exercise by the Member States of the power provided for in Article 2(2)(a) of the directive can be explained, as the Commission set out at the hearing, by the purpose of Article 2(2)(a), as apparent from the directive’s history, of permitting the Member States to continue to apply simplified national return procedures at their external borders, without having to follow all the procedural stages prescribed by the directive, in order to be able to remove more swiftly third-country nationals intercepted when crossing those borders. Article 4(4) of Directive 2008/115 is intended in that context to ensure that those simplified national procedures observe the minimum guarantees prescribed by the directive, which include, in particular, the detention conditions laid down in Articles 16 and 17.”", "The CJEU has also defined the expression “irregular crossing of a border” as a crossing that does not fulfil “the conditions imposed by the legislation applicable in the Member State in question” and which must necessarily be considered “irregular” within the meaning of Article 13 § 1 of the Dublin III Regulation (judgment of 26 July 2017, Jafari, C-646/16, §§ 74 et seq.). The CJEU’s judgment of 19 March 2019 in Arib (C-444/17) is also interesting in this regard as it reiterates that, according to the CJEU’s case-law, the two situations covered by Article 2 § 2 (a) of Directive 2008/115 relate exclusively to the crossing of a member State’s external border, as defined in Article 2 of the Schengen Borders Code, and do not concern the crossing of a common border of member States forming part of the Schengen Area (see Affum, cited above, § 69).", "H. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [subsequent version: Directive 2013/32/EU of 26 June 2013]", "49. The relevant provisions of Directive 2005/85/EC read as follows:", "Article 6 – Access to the procedure", "“1. Member States may require that applications for asylum be made in person and/or at a designated place.", "2. Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf.", "3. Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf.", "Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted.", "...", "5. Member States shall ensure that authorities likely to be addressed by someone who wishes to make an application for asylum are able to advise that person how and where he/she may make such an application and/or may require these authorities to forward the application to the competent authority.”", "Article 7 – Right to remain in the Member State pending the examination of the application", "“1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.", "...”", "Article 8 – Requirements for the examination of applications", "“1. Without prejudice to Article 23(4)(i), Member States shall ensure that applications for asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.", "2. Member States shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. To that end, Member States shall ensure that:", "(a) applications are examined and decisions are taken individually, objectively and impartially;", "(b) precise and up-to-date information is obtained from various sources, such as the United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;", "(c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law.", "3. The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 2(b), necessary for the fulfilment of their task.", "4. Member States may provide for rules concerning the translation of documents relevant for the examination of applications.”", "Article 9 – Requirements for a decision by the determining authority", "“1. Member States shall ensure that decisions on applications for asylum are given in writing.", "2. Member States shall also ensure that, where an application is rejected, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing.", "Member States need not state the reasons for not granting refugee status in a decision where the applicant is granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC. In these cases, Member States shall ensure that the reasons for not granting refugee status are stated in the applicant’s file and that the applicant has, upon request, access to his/her file.", "Moreover, Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with this information at an earlier stage either in writing or by electronic means accessible to the applicant.", "3. For the purposes of Article 6(3), and whenever the application is based on the same grounds, Member States may take one single decision, covering all dependants.”", "Article 10 - Guarantees for applicants for asylum", "“1. With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for asylum enjoy the following guarantees:", "(a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/EC. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 11;", "(b) they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant to be interviewed as referred to in Articles 12 and 13 and appropriate communication cannot be ensured without such services. In this case and in other cases where the competent authorities call upon the applicant, these services shall be paid for out of public funds;", "(c) they shall not be denied the opportunity to communicate with the UNHCR or with any other organisation working on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with that Member State;", "(d) they shall be given notice in reasonable time of the decision by the determining authority on their application for asylum. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to give notice of the decision to him/her instead of to the applicant for asylum;", "(e) they shall be informed of the result of the decision by the determining authority in a language that they may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 9(2).", "2. With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants for asylum enjoy equivalent guarantees to the ones referred to in paragraph 1(b), (c) and (d) of this Article.”", "I. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast)", "50. The relevant provisions of Directive 2011/95/EU read as follows:", "Article 14 - Revocation of, ending of or refusal to renew refugee status", "“...", "4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when:", "(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;", "(b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.", "5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken.", "...”", "51. In its judgment of 14 May 2019 (C-391/16, C-77/17 and C-78/17, M. v. Ministerstvo vnitra and Others ), the CJEU clarified the interpretation of the terms “refugee” and “refugee status” for the purposes of Article 2(d) and Article 2(e) respectively of this directive and also, among other points, the material conditions required in order for a third-country national or stateless person to be regarded as a refugee.", "The relevant paragraphs of the CJEU judgment read as follows:", "“84. ... it should be noted that, regarding the term ‘refugee’, Article 2(d) of that directive reproduces, in essence, the definition set out in Article 1(A)(2) of the Geneva Convention. In that regard, the provisions of Chapter III of Directive 2011/95, entitled ‘Qualification for being a refugee’ provide clarification regarding the material conditions necessary to enable a third-country national or a stateless person to be considered a refugee for the purposes of Article 2(d) of that directive.", "85. For its part, Article 2(e) of Directive 2011/95 defines ‘refugee status’ as ‘the recognition by a Member State of a third-country national or a stateless person as a refugee’. As can be seen from recital 21 of that directive, that recognition is declaratory and not constitutive of being a refugee.", "...", "90. The fact that being a ‘refugee’ for the purposes of Article 2(d) of Directive 2011/95 and Article 1(A) of the Geneva Convention is not dependent on formal recognition thereof through the granting of ‘refugee status’ as defined in Article 2(e) of that directive is, moreover, borne out by the wording of Article 21(2) of that directive, which states that a ‘refugee’ may, in accordance with the condition laid down in that provision, be refouled ‘whether formally recognised or not’.", "...", "95. Thus, where the refoulement of a refugee covered by one of the scenarios referred to in Article 14(4) and (5) and Article 21(2) of Directive 2011/95 would expose that refugee to the risk of his fundamental rights, as enshrined in Article 4 and Article 19(2) of the Charter, being infringed, the Member State concerned may not derogate from the principle of non-refoulement under Article 33(2) of the Geneva Convention.", "...", "105. It must therefore be held that Member States, when implementing Article 14(4) or (5) of that directive, are, in principle, required to grant refugees who are present in their respective territories only the rights expressly referred to in Article 14(6) of that directive and the rights set out in the Geneva Convention that are guaranteed for any refugee who is present in the territory of a Contracting State and do not require a lawful stay.”", "J. European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI))", "52. The relevant parts of this resolution read as follows:", "“The European Parliament,", "...", "73. Recalls that, since the establishment of the Schengen Area, the Union is an area without internal borders, that the Schengen Member States have developed a step ‑ by ‑ step common policy towards the Schengen external borders, and that the inherent logic of such a system has always been that the abolition of internal border controls has to go hand in hand with compensatory measures strengthening the external borders of the Schengen Area and the sharing of information through the Schengen Information System (‘SIS’);", "74. Acknowledges that the integrity of the Schengen Area and the abolition of internal border controls are dependent on having effective management of external borders, with high common standards applied by all Member States at the external borders and an effective exchange of information between them;", "75. Accepts that the Union needs to strengthen its external border protection and further develop the CEAS [1], and that measures are necessary to enhance the capacity of the Schengen Area to address the new challenges facing Europe and preserve the fundamental principles of security and free movement of persons;", "76. Points out that access to the territory of the Schengen Area is generally controlled at the external border under the Schengen Borders Code and that, in addition, citizens of many third countries require a visa to enter the Schengen Area;", "77. Reiterates the UNHCR’s call that respect for fundamental rights and international obligations can only be ensured if operating procedures and plans reflect those obligations in practical, clear guidance to border personnel, including those at land, sea and air borders; points out to the need to further strengthen the Union Civil Protection Mechanism in order to respond to events with wide-ranging impacts which affect a significant number of Member States;", "78. Emphasises again that, as for legislation specifically in the area of asylum and migration, in order for legislation on internal and external borders to be effective, it is essential that measures agreed at Union level are implemented properly by the Member States; underlines that better implementation of measures by Member States at the external borders, following increased pressure, is essential and will go some way towards allaying the security fears of citizens;", "...", "80. Considers that the Schengen Area is one of the major achievements of European integration; notes that the conflict in Syria and other conflicts elsewhere in the region have triggered record numbers of refugees and migrants arriving in the Union, which in turn has revealed deficiencies at parts of the Union’s external borders; is concerned at the fact that, in response, some Member States have felt the need to close their internal borders or introduce temporary border controls, thus calling into question the proper functioning of the Schengen Area;", "...”", "III. COUNCIL OF EUROPE DOCUMENTS", "A. Twenty Guidelines of the Committee of Ministers of the Council of Europe on Forced Return, adopted on 4 May 2005 at the 925th meeting of the Ministers’ Deputies", "53. The relevant parts of this document provide as follows:", "Preamble", "“... member states have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens on their territory;", "... in exercising this right, member states may find it necessary to forcibly return illegal residents within their territory; ...”", "Guideline 2. Adoption of the removal order", "“Removal orders shall only be issued in pursuance of a decision reached in accordance with the law.", "1. A removal order shall only be issued where the authorities of the host state have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to:", "a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment;", "b. a real risk of being killed or subjected to inhuman or degrading treatment by non ‑ state actors, if the authorities of the state of return, parties or organisations controlling the state or a substantial part of the territory of the state, including international organisations, are unable or unwilling to provide appropriate and effective protection; or", "c. other situations which would, under international law or national legislation, justify the granting of international protection.", "...”", "54. The Committee of Ministers of the Council of Europe took note of the comments on these Guidelines drafted by the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR). The relevant parts concerning the scope of application of the guidelines read as follows:", "“... The Guidelines apply to procedures leading to the expulsion of non-nationals from the territory of members states of the Council of Europe. Refusals to enter the national territory at the border are not included in their scope of application, although certain norms restated in the Guidelines are applicable to such decisions ...”", "B. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "55. From 14 to 18 July 2014 a delegation from the CPT visited Spain. One objective of the visit was to examine certain aspects of the treatment of irregular migrants intercepted along the border with Morocco, in the Melilla enclave.", "56. In its report published on 9 April 2015 the CPT found as follows:", "“...", "38. The CPT acknowledges that a number of European States have to cope with frequent influxes of irregular migrants. It is notably the case for those countries situated at the external frontiers of the European Union which act as the gateway to the rest of Europe. Spain is one of these countries facing such pressures.", "39. The autonomous municipality of Melilla is a Spanish exclave of 12 km² located on the northern coast of Africa, surrounded by Moroccan territory. The autonomous municipality lies on the migration route from North and Sub-Saharan Africa towards Europe; it is also used by Syrian migrants. The delegation was informed that the number of foreign nationals trying to cross Melilla’s border irregularly has increased drastically over the last year and a half.", "The Guardia Civil is responsible for patrolling the land border and the coast to prevent clandestine entry. The delegation was informed in Melilla that the Guardia Civil has institutionalised co-operation with the Moroccan Gendarmerie but no formal co-operation with the Moroccan Auxiliary Forces (‘MAF’), which have the prime responsibility for border surveillance.", "40. The Spanish authorities have built a multi-fence barrier along the 13 km land border separating Melilla from Morocco to prevent irregular migrants from accessing Spanish territory. The CPT notes that it was built within Spanish territory and is therefore, on both sides, under the full jurisdiction of Spain.", "The barrier consists of a six meter high fence, slightly tilted towards Morocco, a three dimensional tow-line followed by a second three meter high fence and, on the other side of a patrol road, another six meter high fence. At regular intervals, gates have been inserted into the fences to enable access through the barrier from both sides. In addition, a sophisticated CCTV system (including infrared cameras) combined with movement sensors has been installed. Most of the fences are also equipped with anti-climbing grids.", "41. On 13 February 1992, Spain concluded a Bilateral Agreement with the Kingdom of Morocco on the movement of persons, transit and readmission of foreign nationals who entered illegally (‘the Readmission Agreement’). According to the Readmission Agreement, ‘following the formal request of the border authorities of the requesting State, border authorities of the requested State shall readmit in its territory the third-country nationals who have illegally entered the territory of the requesting State from the requested State.’ The application for readmission shall be submitted within ten days after the illegal entry into the territory of the requesting State.", "...", "48. Groups of foreign nationals of varying sizes – from a few persons to a thousand – attempt, on a regular basis, to access Spanish territory. Regarding the attempts to access Spanish territory by sea, the CPT was informed about an incident that took place on 6 February 2014, which was widely reported in the media. Members of the Guardia Civil fired rubber bullets from the beach at persons who were attempting to swim from Moroccan territory to Melilla and forced them to head back to Morocco. However, not all the persons were able to swim back and it was reported that 15 foreign nationals drowned.", "As regards attempts to access Spanish territory by climbing the border fences, the delegation received consistent allegations, confirmed by video footage, that irregular migrants were stopped within or right after the border by members of the Guardia Civil, occasionally handcuffed, before being immediately forcibly returned to Morocco without being identified. Several foreign nationals also stated to the delegation that they had been returned to Morocco after being apprehended by the Guardia Civil several hundred meters from the border. It seems that the duty of the Guardia Civil was seen as encompassing apprehending irregular migrants on their way to the CETI in Melilla and forcibly returning them to Morocco. Further, foreign nationals were allegedly sometimes returned to Morocco despite the fact that they were injured and could hardly walk (see also paragraph 51).", "The CPT considers that such practices of immediately and forcibly returning irregular migrants, without any prior identification or screening of their needs, would be clearly contrary to the principles and standards mentioned above.", "...", "50. ... the CPT recommends that:", "- clear instructions be given to Spanish law enforcement officials to ensure that irregular migrants who have entered Spanish territory will not be forcibly returned to Morocco prior to an individualised screening with a view to identifying persons in need of protection, assessing those needs and taking appropriate action;", "- adequate guarantees in this respect be provided in national legislation.”", "C. The 2015 annual activity report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”), dated 14 March 2016", "57. The parts of the report of relevance to the present case read as follows:", "“1.2. Visits", "Visit to Spain", "The Commissioner visited Melilla and Madrid from 13 to 16 January 2015 in order to discuss issues pertaining to the human rights of migrants, refugees and asylum ‑ seekers in Ceuta and Melilla, Spain’s territories in Northern Africa.", "In Melilla, the Commissioner held meetings with the Government’s Delegate, Mr Abdelmalik El Barkani and the President of the city, Mr Juan José Imbroda Ortiz. He also met with the Head of the Guardia Civil in Melilla, Colonel Ambrosio Martín Villaseñor; the Head of the National Police, Mr José Angel González Jiménez; and representatives of civil society organisations. He visited the border check-point of Beni Ansar, where an office to register asylum claims started operating in November 2014. He also visited the triple-fence surrounding Melilla and the Centre for Temporary Stay of Migrants (CETI), where he met with Centre’s Director, Mr Carlos Montero Díaz, other staff members and with persons accommodated in it.", "In Madrid, the Commissioner met with the Secretary of State for Security, Mr Francisco Martínez Vázquez. He also met with the Ombudsperson, Ms Soledad Becerril Bustamante, UNHCR’s Representative in Spain and civil society representatives. Additionally, the Commissioner held, on 27 January 2015, an exchange of views with members of the Spanish delegation to the Parliamentary Assembly of the Council of Europe on issues raised during the visit.", "The main issue of the visit was the draft amendment to the Aliens Act aimed at establishing a special regime for Ceuta and Melilla and allowing the immediate return of migrants who did not enter Ceuta and Melilla through a regular border post. While recognising that Spain has the right to establish its own immigration and border management policies, the Commissioner stressed that it must also uphold its human rights obligations. Therefore, he urged the Spanish authorities to ensure that any future legislation fully comply with these obligations, which include ensuring full access to an effective asylum procedure, providing protection against refoulement and refraining from collective expulsions. He also underscored Spain’s obligation to ensure that no push-backs of migrants occur in practice and to effectively investigate all allegations of excessive use of force against migrants by law enforcement officials at the border.", "The Commissioner welcomed the opening of an asylum office at one of Melilla’s border check-points and the effective co-operation of the police with UNHCR. At the same time, he highlighted the need to strengthen the asylum system in Melilla so as to allow all persons in need of protection, irrespective of their country of origin, to access the territory safely, to have their situation assessed on an individual basis and to submit international protection claims. Additionally, he urged the authorities to take urgent steps to improve existing arrangements for the reception of migrants in Melilla and clarify rules governing transfers to the mainland.", "The press release issued at the end of the visit (16 January) is available on the Commissioner’s website. The visit also served as a basis for the written comments the Commissioner submitted to the Court as third party in November on two cases against Spain (N.D. and N.T., Applications No 8675/15 and No. 8697/15). These cases related to alleged pushbacks of migrants from the Spanish city of Melilla to Morocco (see below, European Court of Human Rights).", "...", "2. Thematic activities", "...", "2.3. Human rights of immigrants, refugees and asylum seekers", "Human rights of immigrants, refugees and asylum seekers featured prominently in the Commissioner’s work in 2015. He took an active part in various debates on these issues, reminding Council of Europe member states of their human rights obligations towards immigrants, asylum-seekers and refugees. Issues pertaining to migration were addressed in the Commissioner’s ... ad hoc visits to ... Spain, as well as through third party interventions before the Court.", "...", "6. European Court of Human Rights", "In 2015, the Commissioner made extensive use of his right to submit written comments in cases before the European Court of Human Rights, pursuant to Article 36, paragraph 3 of the ECHR. He did so in ... two cases against Spain, relating to alleged push-backs of migrants from the Spanish city of Melilla to Morocco. ...", "On 12 November 2015, the Commissioner published the written comments he submitted to the Court on two cases against Spain (N.D. and N.T., Applications No. 8675/15 and No. 8697/15) relating to alleged pushbacks of migrants from the Spanish city of Melilla to Morocco. Based inter alia on his visit to Melilla and Madrid from 13 to 16 January 2015 ..., the Commissioner points to the existence of a practice whereby migrants who attempt to enter Melilla in groups by climbing the fence surrounding the city are summarily returned by Spain’s border guards to Morocco. The Commissioner underlines that these returns take place outside of any formal procedure and without identification of the persons concerned or assessment of their individual situation, a circumstance which prevents them from effectively exercising their right to seek international protection in Spain. Additionally, he stresses that migrants summarily returned from Melilla have no access to an effective remedy which would enable them to challenge their removal or seek redress for any ill ‑ treatment they may have been subjected to during such operations.”", "D. Report dated 3 September 2018 of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, to Spain, 18 ‑ 24 March 2018 (SG/Inf(2018)25)", "58. The relevant parts of this report read as follows:", "“3. THE SITUATION IN MELILLA AND CEUTA", "3.1. Preventing access to the territory", "Asylum-seekers and migrants in an irregular situation enter into the autonomous cities of Melilla and Ceuta both through the land and sea borders. As regards land borders, Melilla is surrounded by a 12 km triple fence – the external and internal fences are six metres high and the middle one is a lower three dimensional barrier which is a structure of steel cables tied to stakes. The fence is equipped with sensors to detect movements towards its external part. When such movements are detected the Guardia Civil notifies the Moroccan authorities, which in turn often prevent people in the Moroccan territory from jumping the fence. ...", "On previous occasions, I have drawn attention to practices involving information sharing by the border police with the relevant authorities of a neighbouring country regarding suspected unauthorised border crossings and the subsequent action of the authorities in the neighbouring country to intercept migrants and refugees before they cross the border. I have underlined the questions that these practices raise with regard to the right to seek asylum and the respect for the principle of non- refoulement. It is legitimate that Council of Europe member states, in the exercise of their right to prevent unauthorised border crossings as well as to prevent and combat cross-border criminal activities co-operate with neighbouring countries including through the sharing of relevant information. However, as a matter of principle, member states should exercise human rights due diligence in the context of such co-operation. They should take into account the situation in their neighbouring countries and refrain from sharing information with or requesting the latter to intercept people before they reach member states’ borders when they know, or should have known, that the intercepted persons would as a result be exposed to a real risk of torture or inhuman and degrading treatment or punishment and that they would not be given protection in the neighbouring countries. ...", "3.2. Summary returns", "According to the Spanish Law no. 4/2000 on the rights and freedoms of aliens in Spain and their social integration (the Law on Aliens), foreigners who attempt to cross the border irregularly, including persons intercepted at and near the border, may be denied entry or may be rejected at the border in order to prevent their illegal entry into Spain. In accordance with the Law on Aliens, their return shall in all cases be carried out in compliance with the international human rights standards; applications for international protection shall be submitted in dedicated placed provided for that purpose at the border crossings. The Guardia Civil explained to us that attempts by foreigners to jump the fences happened on a daily basis, although not by massive groups of people as it had been frequently the case in 2016 and 2017. When foreigners attempt to jump the fences in both Melilla and Ceuta the Guardia Civil does not intervene unless they have climbed down the internal fences. In most of the cases foreigners endure physical injuries while jumping over the fences. This is the reason why the authorities have entered into a co-operation protocol with the Spanish Red Cross, which provides immediate medical assistance to intercepted foreigners.", "The Guardia Civil explained to us that foreigners who jump the fences are usually violent and that they do not communicate with authorities but rather attempt to escape from them. The Guardia Civil also does not seek to establish any communication with foreigners. Hence, no claims for international protection are expressed by foreigners either while climbing or when intercepted at or near the border after jumping the fences. Shortly after receiving the Spanish Red Cross assistance they are returned to Morocco through special doors, which are spread throughout the border fences and are distinct from border-crossing points. Foreigners do not have access to interpreters, lawyers or the asylum offices located at border crossing point. Finally, they are returned to Morocco without any identification or registration having taken place.", "In a Chamber judgment, the European Court of Human Rights found that the immediate return to Morocco of Sub-Saharan migrants who were attempting to enter into Melilla amounted to a collective expulsion and held that there had been a violation of Article 4 Protocol 4 and Article 13 of the ECHR taken together with Article 4 Protocol 4. The case has been referred to the Grand Chamber.", "Articles 2 and 3 of the ECHR entail an obligation on the part of Council of Europe member states not to return a person to his/her country of origin, any other country to which removal is to be effected or any other country to which he/she may subsequently be removed, where there are substantial grounds for believing that the person would run a real risk to his/her life or a real risk of being subjected to torture and other forms of ill-treatment. On the basis of the principle of non- refoulement enshrined in Article 33 of the 1951 Geneva Convention on the Status of Refugees and the relevant jurisprudence of the European Court of Human Rights, states are obliged to screen intercepted migrants with a view to identifying persons in need of protection, assessing those needs and enabling the relevant persons’ access to asylum procedures.", "While the Spanish Law on Aliens contains a general guarantee that the returns described above will be carried out in compliance with international human rights standards, in practice the Guardia Civil does not yet have a protocol on screening foreigners who irregularly cross the borders in Melilla and Ceuta which would provide instructions to its officers on identifying persons in need of international protection and taking necessary action regarding their access to a fair and efficient asylum procedure. As international bodies, including the Commissioner for Human Rights, the CPT and the UNHCR, have called for the issuance of such instructions for some years it is now necessary that Spain takes action. The Council of Europe can provide its human rights expertise to ensure that the relevant instructions provide for the respect of the principle of non- refoulement, prohibit collective expulsion and contain the necessary procedural guarantees regarding access to a fair and effective asylum procedure.", "4. ACCESS TO THE ASYLUM PROCEDURE", "Anyone who wishes to seek international protection in Spain must lodge a formal application with the competent authorities. In cases when the asylum seeker is at an airport, maritime port or land borders he/she must lodge a formal application with the border control authority. If the person is already on Spanish territory he/she must lodge a formal application with the OAR, in Detention Centres for Foreigners ( Centro de Internamiento de Extranjeros, CIEs)or police stations. The admissibility and merits of applications lodged at the borders and in CIEs are assessed within shorter periods of time compared to applications lodged in Spanish territory, which are examined under the regular procedure. However, procedural safeguards for applications lodged at the border or in CIEs concerning the presence of interpreters and legal assistance are the same as those applicable under the regular procedure.", "4.1. At the land border", "At the Beni Enzar border-crossing point in Melilla we were informed that the persons who crossed the border in a regular manner in order to seek asylum are mostly Syrians, Palestinians, Algerians or nationals of other Northern African countries. They are given an appointment for a preliminary interview by Ministry of Interior officials within two or three days, but no later than nine days, from the time they express their intention to seek asylum. The registration of asylum applications and a preliminary interview takes place in dedicated premises adjacent to Beni Enzar. At the time of our visit there had been around 700 asylum requests for 2018. The OAR in Madrid usually makes a decision on the admissibility of the applications within 48 hours of the registration of the application. The admissibility rate is rather high at 90%. After a decision on admissibility the merits of the asylum application is examined with priority within three months under the regular asylum procedure (see section 4.3. below). At the El Trajal border-crossing point in Ceuta we were informed by the Spanish authorities that no single asylum application had been lodged since 1993.", "A number of reports have underlined that persons from sub-Saharan Africa are effectively prevented by Moroccan authorities from approaching regular border crossing points, notably in Melilla (see section 3.1. above). Consequently, they do not have access to the asylum procedure. Spanish authorities explained that one of the possible reasons why sub-Saharan Africans cannot approach the border are the sizeable daily flows of persons involved in the so-called ‘atypical trade’ who cross the border daily into and out of Melilla. While I understand the difficulties that the Spanish authorities encounter in managing such flows I was not convinced that they affect the ability of sub-Saharan Africans to approach the Spanish border. Without any possibility for legal and safe access to the Spanish territory, persons from sub ‑ Saharan Africa, including women and young children, turn to organised crime networks, hiding in cars or embarking on rafts to gain access to the autonomous cities of Melilla and Ceuta, thereby exposing themselves to risks of trafficking in human beings, violence and sexual abuse. It is, therefore, important that the Spanish authorities provide to persons in need of international protection the possibility to access the Spanish territory safely so that they can submit their asylum claims ...”", "E. Resolution 2299 (2019) of the Parliamentary Assembly of the Council of Europe, adopted on 28 June 2019: Pushback policies and practice in Council of Europe member States", "59. The relevant parts of this report read as follows:", "“1. To control and manage migration flows, Council of Europe member States concentrate much of their efforts on guarding frontiers. In this context, refusals of entry and expulsions without any individual assessment of protection needs have become a documented phenomenon at Europe’s borders, as well as on the territory of member States further inland. As these practices are widespread, and in some countries systematic, these “pushbacks” can be considered as part of national policies rather than incidental actions. The highest risk attached to pushbacks is the risk of refoulement, meaning that a person is sent back to a place where they might face persecution in the sense of the 1951 United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”), or inhuman or degrading treatment in the sense of the European Convention on Human Rights (ETS No. 5, “the Convention”).", "2. This is why the European Court of Human Rights, for instance in its judgment Hirsi Jamaa and Others v. Italy (Application No. 27765/09), but also in N.D. and N.T. v. Spain (Applications Nos. 8675/15 and 8697/15), requires the individual assessment of protection needs and of the safety of a return in order to prevent violation of Article 3 of the European Convention on Human Rights and of the prohibition of collective expulsions, as enshrined in Article 4 of Protocol No. 4 to the Convention (ETS No. 46). Pushbacks take place in particular at European Union borders, which is at least in part a consequence of the shortcomings of the current Dublin Regulation and of the failure of attempts to introduce fair responsibility-sharing in Europe.", "3. Pushbacks often take place where migrants attempt to enter the territory of a member State in large numbers because the passage is, or appears to be, more “open” than elsewhere, or is geographically close to the countries of origin of asylum seekers. However, recent evidence of pushbacks shows that they also take place where numbers of arrivals are low, but where national policies are hostile towards migration in general. There are also cases of “multiple pushbacks” where migrants are expelled by various countries successively.", "4. The Parliamentary Assembly is concerned about the persistent and increasing practice and policies of pushbacks, which are in clear violation of the rights of asylum seekers and refugees, including the right to asylum and the right to protection against refoulement, which are at the core of international refugee and human rights law. In view of the gravity of the human rights violations involved, the Assembly urges member States to provide adequate protection to asylum seekers, refugees and migrants arriving at their borders, and thus to refrain from any pushbacks, to allow for independent monitoring and to fully investigate all allegations of pushbacks.", "5. The Assembly is extremely worried about persistent reports and evidence of inhuman and degrading treatment of migrants by member States and their agencies in the framework of these pushbacks, through intimidation, confiscating or destroying migrants’ belongings, and even through the use of violence and by depriving migrants of food and basic services. In denying having carried out such pushbacks, these types of (sometimes systematic) inhuman and degrading treatment are denied as well, and are therefore not adequately examined or not examined at all.", "6. The Assembly therefore calls on Council of Europe member States to comply with their international obligations in this regard, in particular those set out in the European Convention on Human Rights concerning the prohibition of collective expulsion and inhuman and degrading treatment, as well as the right of access to asylum procedures and the prohibition of refoulement as established in the United Nations Refugee Convention.", "...”", "IV. OTHER INTERNATIONAL MATERIALS", "A. Charter of the United Nations (UN Charter), signed on 26 June 1945 in San Francisco", "60. The relevant provision of this international instrument reads as follows:", "Article 51", "“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”", "B. Vienna Convention on the Law of Treaties of 23 May 1969", "61. The relevant provisions of the Vienna Convention read as follows:", "Article 27 - Internal law and observance of treaties", "“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”", "Article 31 - General rule of interpretation", "“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.", "2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:", "( a ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;", "( b ) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.", "3. There shall be taken into account, together with the context:", "( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;", "( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;", "( c ) any relevant rules of international law applicable in the relations between the parties.", "4. A special meaning shall be given to a term if it is established that the parties so intended.”", "Article 32 - Supplementary means of interpretation", "“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:", "( a ) leaves the meaning ambiguous or obscure; or", "( b ) leads to a result which is manifestly absurd or unreasonable.”", "C. Geneva Convention of 28 July 1951 relating to the Status of Refugees", "62. The relevant provisions of the 1951 Geneva Convention read as follows:", "Article 1 - Definition of the term ‘refugee’", "“A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:", "(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;", "...", "(2) As a result of events occurring before 1 January 1951 and owing to well ‑ founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.", "...”", "Article 3 – Non-discrimination", "“The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.”", "Article 4 – Religion", "“The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.”", "Article 16 – Access to courts", "“1. A refugee shall have free access to the courts of law on the territory of all Contracting States.", "2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.", "3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.”", "Article 22 – Public education", "“1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.", "2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.”", "Article 31 – Refugees unlawfully in the country of refugee", "“1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.", "2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”", "Article 32 – Expulsion", "“1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.", "2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.", "3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.”", "Article 33 – Prohibition of expulsion or return (‘refoulement’)", "1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.", "2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”", "D. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (UNCAT)", "63. The relevant provision of this international instrument reads as follows:", "Article 3", "“1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.", "2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”", "E. Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (Resolution 2312 (XXII))", "64. The relevant parts of the declaration provide:", "Article 1", "“1. Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights ... shall be respected by all other States.", "...”", "Article 3", "“1. No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.", "...”", "F. International Law Commission’s Draft Articles on the Expulsion of Aliens", "65. At its sixty-sixth session, in 2014, the International Law Commission adopted a set of Draft Articles on the Expulsion of Aliens. The text, of which the United Nations General Assembly took note (Resolution A/RES/69/119 of 10 December 2014), includes the following provisions:", "Article 1 – Scope", "“1. The present draft articles apply to the expulsion by a State of aliens present in its territory.", "...”", "Commentary", "“...", "(2) In stating that the draft articles apply to the expulsion by a State of aliens who are present in its territory, paragraph 1 defines the scope of the draft articles both ratione materiae and ratione personae. With regard to scope ratione materiae, which relates to the measures covered by the draft articles, reference is made simply to the ‘expulsion by a State’, which covers any and all expulsion measures; no further elaboration is provided, since ‘expulsion’ is defined in draft article 2, subparagraph (a), below. With regard to scope ratione personae, that is, the persons covered by the draft articles, it follows from paragraph 1 that the draft articles apply in general to the expulsion of all aliens present in the territory of the expelling State, with no distinction between the various categories of persons involved, for example, aliens lawfully present in the territory of the expelling State, aliens unlawfully present, displaced persons, asylum seekers, persons granted asylum and stateless persons. The term ‘ alien’ is defined in draft article 2, subparagraph (b).", "(3) The draft articles cover the expulsion of both aliens lawfully present and those unlawfully present in the territory of the expelling State, as paragraph 1 of the draft article indicates. The category of aliens unlawfully present in the territory of the expelling State covers both aliens who have entered the territory unlawfully and aliens whose presence in the territory has subsequently become unlawful, primarily because of a violation of the laws of the expelling State governing conditions of stay. Although the draft articles apply in general to the expulsion of aliens present lawfully or unlawfully in the territory of the expelling State, it should be noted at the outset that some provisions of the draft articles draw necessary distinctions between the two categories of aliens, particularly with respect to the rights to which they are entitled. It should be also noted that the inclusion within the scope of the draft articles of aliens whose presence in the territory of the expelling State is unlawful is to be understood in conjunction with the phrase in article 2, subparagraph (a), in fine, which excludes from the scope of the draft articles questions concerning non-admission of an alien to the territory of a State.”", "Article 2 – Use of terms", "“For the purposes of the present draft articles:", "(a) ’expulsion’ means a formal act or conduct attributable to a State by which an alien is compelled to leave the territory of that State; it does not include extradition to another State, surrender to an international criminal court or tribunal, or the non ‑ admission of an alien to a State;", "(b) ’alien’ means an individual who does not have the nationality of the State in whose territory that individual is present.”", "Commentary", "“(1) Draft article 2 defines two key terms, ‘expulsion’ and ‘alien’, for the purposes of the present draft articles.", "...", "(4) Conduct – other than the adoption of a formal decision – that could result in expulsion may take the form of either an action or an omission on the part of the State. Omission might in particular consist of tolerance towards conduct directed against the alien by individuals or private entities, for example, if the State failed to appropriately protect an alien from hostile acts emanating from non-State actors. What appears to be the determining element in the definition of expulsion is that, as a result of either a formal act or conduct – active or passive – attributable to the State, the alien in question is compelled to leave the territory of that State. In addition, in order to conclude that there has been expulsion as a result of conduct (that is, without the adoption of a formal decision), it is essential to establish the intention of the State in question, by means of that conduct, to bring about the departure of the alien from its territory.", "(5) For the sake of clarity, the Commission thought it useful to specify, in the second clause of subparagraph (a), that the concept of expulsion within the meaning of the draft articles did not cover extradition of an alien to another State, surrender to an international criminal court or tribunal or the non-admission of an alien to a State. With respect to non-admission, it should be explained that, in some legal regimes, the term ‘return ( refoulement )’ is sometimes used instead of ‘non-admission’. For the sake of consistency, the present draft articles use the latter term in cases where an alien is refused entry. The exclusion relates to the refusal by the authorities of a State – usually the authorities responsible for immigration and border control – to allow an alien to enter the territory of that State. On the other hand, the measures taken by a State to compel an alien already present in its territory, even if unlawfully present, to leave it are covered by the concept of ‘expulsion’ as defined in draft article 2, subparagraph (a). This distinction should be understood in the light of the definition of the scope ratione personae of the draft articles, which includes both aliens lawfully present in the territory of the expelling State and those unlawfully present. Moreover the exclusion of matters relating to non-admission from the scope of the draft articles is without prejudice to the rules of international law relating to refugees. That reservation is explained by draft article 6, subparagraph (b), which references the prohibition against return ( refoulement ) within the meaning of article 33 of the Convention on the Status of Refugees of 28 July 1951 and hence inevitably touches on questions of admission.", "...”", "Article 3 – Right of expulsion", "“A State has the right to expel an alien from its territory. Expulsion shall be in accordance with the present draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.”", "Article 6 – Prohibition of the expulsion of refugees", "“The present draft articles are without prejudice to the rules of international law relating to refugees, as well as to any more favourable rules or practice on refugee protection, and in particular to the following rules:", "(a) a State shall not expel a refugee lawfully in its territory save on grounds of national security or public order;", "(b) a State shall not expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion, unless there are reasonable grounds for regarding the person as a danger to the security of the country in which he or she is, or if the person, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”", "Commentary", "“(1) Draft article 6 deals with the expulsion of refugees, which is subject to restrictive conditions by virtue of the relevant rules of international law. It contains a ‘without prejudice’ clause aimed at ensuring the continued application to refugees of the rules concerning their expulsion, as well as of any more favourable rules or practice on refugee protection. In particular, subparagraphs (a) and (b) of draft article 6 recall two particularly important rules concerning the expulsion or return ( refoulement ) of refugees.", "...", "(5) Draft article 6, subparagraph (a), reproduces the wording of article 32, paragraph 1, of the Convention relating to the Status of Refugees of 28 July 1951. The rule contained in that paragraph, which applies only to refugees lawfully in the territory of the expelling State, limits the grounds for expulsion of such refugees to those relating to reasons of national security or public order.", "(6) The prohibition of expulsion of a refugee lawfully in the territory of the expelling State for any grounds other than national security or public order has also been extended to any refugee who, being unlawfully in the territory of the State, has applied for refugee status, as long as this application is under consideration. However, such protection can be envisaged only for so long as the application is pending. This protection, which reflects a trend in the legal literature and finds support in the practice of some States and of UNHCR, would constitute a departure from the principle whereby the unlawfulness of the presence of an alien in the territory of a State can in itself justify expulsion of the alien. The protection might be set aside only in cases where the manifest intent of the application for refugee status was to thwart an expulsion decision likely to be handed down against the individual concerned. It concerns only individuals who, while not enjoying the status of refugee in the State in question, did meet the definition of ‘refugee’ within the meaning of the 1951 Convention or, in some cases, other relevant instruments, such as the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, and should therefore be regarded as refugees under international law. Any individual who does not correspond to the definition of refugee within the meaning of the relevant legal instruments is ineligible to enjoy the protection recognized in draft article 6 and can be expelled on grounds other than those stipulated in subparagraph (a), including on the sole ground of the unlawfulness of his or her presence in the territory of the expelling State. In any event, article 6 is without prejudice to the right of a State to expel, for reasons other than those mentioned in subparagraph (a), an alien whose application for refugee status is manifestly abusive.", "(7) Draft article 6, subparagraph (b), which concerns the obligation of non ‑ refoulement, combines paragraphs 1 and 2 of article 33 of the 1951 Convention. Unlike the other provisions of the draft articles, which do not cover the situation of non-admission of an alien to the territory of a State, draft article 6, subparagraph (b), provides that these draft articles are without prejudice to that situation as well, as indicated by the opening phrase: ‘A State shall not expel or return ( refouler ) ...’. Moreover, unlike the protection stipulated in subparagraph (a), the protection mentioned in subparagraph (b) applies to all refugees, regardless of whether their presence in the receiving State is lawful or unlawful. It should also be emphasized that the mention of this specific obligation of non-refoulement of refugees is without prejudice to the application to them of the general rules prohibiting expulsion to certain States as contained in draft articles 23 and 24.”", "Article 9 – Prohibition of collective expulsion", "“1. For the purposes of the present draft article, collective expulsion means expulsion of aliens, as a group.", "2. The collective expulsion of aliens is prohibited.", "3. A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles.", "4. The present draft article is without prejudice to the rules of international law applicable to the expulsion of aliens in the event of an armed conflict involving the expelling State.”", "Commentary", "“(1) Paragraph 1 of draft article 9 contains a definition of collective expulsion for the purposes of the present draft articles. According to this definition, collective expulsion is understood to mean the expulsion of aliens ‘as a group’. This criterion is informed by the case-law of the European Court of Human Rights. It is a criterion that the Special Rapporteur on the rights of non-citizens of the Commission on Human Rights, Mr. David Weissbrodt, had also endorsed in his final report of 2003. Only the ‘collective’ aspect is addressed in this definition, which must be understood in the light of the general definition of expulsion contained in draft article 2, subparagraph (a).", "...", "(4) The prohibition of the collective expulsion of aliens set out in paragraph 2 of the present draft article should be read in the light of paragraph 3, which elucidates it by specifying the conditions under which the members of a group of aliens may be expelled concomitantly without such a measure being regarded as a collective expulsion within the meaning of the draft articles. Paragraph 3 states that such an expulsion is permissible provided that it takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. ...”", "Article 13 – Obligation to respect the human dignity and human rights of aliens subject to expulsion", "“1. All aliens subject to expulsion shall be treated with humanity and with respect for the inherent dignity of the human person at all stages of the expulsion process.", "2. They are entitled to respect for their human rights, including those set out in the present draft articles.”", "Article 17 – Prohibition of torture or cruel, inhuman or degrading treatment or punishment", "“The expelling State shall not subject an alien subject to expulsion to torture or to cruel, inhuman or degrading treatment or punishment.”", "66. In his second report on the expulsion of aliens, dated 20 July 2006 (Document A/CN.4/573), examined in connection with the writing of the Draft Articles, Mr Maurice Kamto, Special Rapporteur, stated as follows:", "“40. ... The traditional notion of expulsion ... concerns aliens whose entry or stay are lawful, whereas non-admission concerns those whose entry into or stay on its territory a State seeks to prevent; removal of an illegal immigrant who is at the border or has just crossed it is strictly speaking non-admission, not expulsion. It is by virtue of this judicious distinction that non-admission does not, in the opinion of the Special Rapporteur, fall within the scope of this topic.", "...", "170. As can be seen, no real terminological distinction can be drawn among the three terms ‘expulsion’, ‘escort to the border’ and ‘refoulement’; they are used inter ‑ changeably, without any particular semantic rigour. The word ‘expulsion’ will consequently be used in the context of the present topic as a generic term to mean all situa ­ tions covered by all three terms and many others, such as ‘return of an alien to a country’ or ‘exclusion of an alien’, this list not being exhaustive.”", "G. Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme 1975 – 2017", "67. The relevant conclusions provide as follows:", "No. 6 (XXVIII), Non-refoulement (1977) – 28th Session of the Executive Committee", "“The Executive Committee,", "...", "(c) Reaffirms the fundamental importance of the observance of the principle of non ‑ refoulement – both at the border and within the territory of a State – of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.”", "No. 22 (XXXII), Protection of asylum-seekers in situations of large-scale influx (1981) – 32nd Session of the Executive Committee", "“...", "II. Measures of protection", "A. Admission and non-refoulement", "1. In situations of large-scale influx, asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below.", "...", "2. In all cases the fundamental principle of non-refoulement – including non ‑ rejection at the frontier – must be scrupulously observed.", "...”", "No. 82 (XLVIII), Safeguarding asylum (1997) – 48th Session of the Executive Committee", "“The Executive Committee,", "...", "(d) Reiterates ... the need for full respect to be accorded to the institution of asylum in general, and considers it timely to draw attention to the following particular aspects:", "(i) the principle of non-refoulement, which prohibits expulsion and return of refugees in any manner whatsoever to the frontiers of territories where their lives or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, whether or not they have been formally granted refugee status, or of persons in respect of whom there are substantial grounds for believing that they would be in danger of being subjected to torture, as set forth in the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment;", "...", "(iii) the need to admit refugees into the territories of States, which includes no rejection at frontiers without fair and effective procedures for determining status and protection needs;", "...”", "No. 99 (LV) General conclusion (2004)1 – 55th Session of the Executive Committee", "“The Executive Committee,", "...", "(l) Expresses concern at the persecution, generalized violence and violations of human rights which continue to cause and perpetuate displacement within and beyond national borders and which increase the challenges faced by States in effecting durable solutions; and calls on States to address these challenges while ensuring full respect for the fundamental principle of non-refoulement, including non-rejection at frontiers without access to fair and effective procedures for determining status and protection needs;", "...”", "H. Views adopted by the Committee on the Rights of the Child on 12 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016", "68. The relevant parts of these views read as follows:", "“...The facts as submitted by the complainant", "2.4. On 2 December 2014, the author and a group of people of sub-Saharan origin left Mount Gurugu with the intention of entering Melilla. The author reached the top of the third fence and saw that other people climbing down the fence on the other side were being summarily pushed back by the Spanish Civil Guard and handed over to Moroccan forces. Then, for fear of being deported and subjected to possible ill ‑ treatment and violence by Moroccan forces, the author waited for several hours at the top of the fence. During this period, he was not offered any form of assistance. He had no access to water or food. He was also unable to communicate with the Civil Guard, since he did not speak Spanish and there were no interpreters present. Finally, he climbed down the fence with the help of a ladder provided by the Civil Guard. As soon as he set foot on the ground, he was arrested and handcuffed by the Civil Guard, handed over to the Moroccan forces and summarily deported to Morocco. At no time was his identity checked. He was also denied the opportunity to explain his personal circumstances, give his age, challenge his imminent deportation or claim protection as an unaccompanied child. He was not assisted by lawyers, interpreters or doctors...", "2.5. The author submits that there were no effective domestic remedies available to him that could have served to suspend his deportation from Spain to Morocco on 2 December 2014. He points out that the deportation was summarily executed without him being notified of a formal expulsion decision that he could have challenged before the competent authorities.", "2.6. On or around about 30 December 2014, the author entered Spain through Melilla and went to stay in the temporary reception centre for migrants. In February 2015, he was transferred from the enclave of Melilla to mainland Spain. At the end of July 2015, thanks to the assistance of Fundación Raíces, a non ‑ governmental organization (NGO), and the consular registration card issued to him by the Malian consulate in Madrid, which showed his date of birth as 10 March 1999, the author obtained protection as an unaccompanied child and was placed in a residential centre for minors under the care of the Spanish authorities.", "2.7. The author states that, on 30 March 2015, Spain adopted Organic Act No. 4/2015 on safeguarding the security of citizens, which entered into force on 1 April 2015. This law, and in particular its tenth additional provision concerning the special regime applicable in Ceuta and Melilla, legalizes the Spanish practice of indiscriminate summary deportations at the border and makes no reference to unaccompanied minors nor establishes any procedure for their identification and protection.", "...", "Issues and proceedings before the Committee", "Consideration of admissibility", "...", "13.3. As to the mismatches between the details of the person registered by the Spanish authorities and those of the author, the Committee notes that the file provides no conclusive evidence that shows that the author is not the person who attempted to gain access to Melilla on 2 December 2014 in the circumstances described. The Committee considers that the burden of proof cannot rest solely on the author of the communication, especially given that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information. In the present case, the Committee considers that the author has provided a credible and consistent account of the facts, which is supported by evidence. The Committee also notes the author’s allegations that the State party could have compared the fingerprints of the person registered as Y.D. with those of the author. The Committee therefore finds the present communication admissible rationae personae.", "13.4. The Committee takes note of the State party’s argument that the communication is inadmissible rationae loci because the actions of the Moroccan authorities are not attributable to Spain. The Committee notes, however, that the scope of the present communication is limited to the actions of the Spanish authorities on 2 December 2014, to the exclusion of those of the Moroccan authorities. In this regard, the Committee notes that, according to the author, he was arrested by Spanish security forces at the third fence of the Melilla border crossing and was handcuffed and returned to Moroccan territory. Given these circumstances, and irrespective of whether or not the author is considered to have arrived in Spanish territory, he was under the authority or effective control of the State party. The Committee therefore finds the present communication admissible rationae loci.", "13.5. The Committee also notes the State party’s argument that the communication is inadmissible rationae materiae because it refers to the author’s right to asylum, which is not covered by the Convention. The Committee notes, however, that the present communication concerns alleged violations of the author’s rights under articles 3, 20 and 37 of the Convention and not his right to asylum. The Committee therefore finds that the communication is admissible rationae materiae.", "13.6. Lastly, the Committee notes the State party’s argument that the complainant did not exhaust available domestic remedies ... The Committee also notes that it can be gleaned from the case file that on 2 December 2014 no formal expulsion order against the author had been issued. Accordingly, the Committee considers that, in the context of the author’s imminent expulsion on 2 December 2014, and in the absence of a formal expulsion order that could have been challenged by the author, the judicial remedies mentioned in point (d) of the State party’s argument would have been worthless, as they were neither available nor effective. ...", "13.7. ... The Committee therefore finds the complaint admissible and proceeds to consider it on the merits.", "Consideration of the merits", "...", "14.2. The issue before the Committee is whether, in the circumstances of this case, the author’s return to Morocco by the Spanish Civil Guard on 2 December 2014 violated his rights under the Convention. In particular, the author claimed that, by summarily deporting him to Morocco on 2 December 2014, without performing any form of identity check or assessment of his situation, the State party: (a) failed to provide the author with the special protection and assistance to which he was entitled as an unaccompanied minor (art. 20); (b) failed to respect the principle of non ‑ refoulement and exposed the author to the risk of violence and cruel, inhuman and degrading treatment in Morocco (art. 37); and (c) failed to consider the best interests of the child (art. 3).", "14.3. The Committee is of the view that the State’s obligations to provide special protection and assistance to unaccompanied children, in accordance with article 20 of the Convention, apply even ‘with respect to those children who come under the State’s jurisdiction when attempting to enter the country’s territory’. Similarly, the Committee considers that ‘the positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border’. Accordingly, it is imperative and necessary that, in order to comply with its obligations under article 20 of the Convention and to respect the best interests of the child, the State conducts an initial assessment, prior to any removal or return, that includes the following stages: (a) assessment, as a matter of priority, of whether the person concerned is an unaccompanied minor, with, in the event of uncertainty, the individual being accorded the benefit of the doubt such that, if there is a possibility that the individual is a child, he or she is treated as such; (b) verification of the child’s identity by means of an initial interview; and (c) assessment of the child’s specific situation and particular vulnerabilities, if any.", "14.4. The Committee is also of the view that, in compliance with its obligations under article 37 of the Convention, in order to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment, the State should not return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee therefore considers that, in accordance with article 37 of the Convention and the principle of non-refoulement, the State has an obligation to carry out a prior assessment of the risk, if any, of irreparable harm to the child and serious violations of his or her rights in the country to which he or she will be transferred or returned, taking into account the best interests of the child, including, for example, ‘the particularly serious consequences for children of the insufficient provision of food or health services’. In particular, the Committee recalls that, in the context of best interest assessments and within best interest determination procedures, children should be guaranteed the right to: (a) access the territory, regardless of the documentation they have or lack, and be referred to the authorities in charge of evaluating their needs in terms of protection of their rights, ensuring their procedural safeguards.", "...", "14.6. The Committee also notes the State party’s allegation that the principle of non-refoulement does not apply in the present case because it only applies when the person comes from a territory where there is a risk of persecution. However, the Committee reiterates that the State party has an obligation not to return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee also notes that, before returning the author to Morocco, the State party did not ascertain his identity, did not ask about his personal circumstances and did not conduct a prior assessment of the risk, if any, of persecution and/or irreparable harm in the country to which he was to be returned. The Committee considers that, given the violence faced by migrants in the Moroccan border area and the ill-treatment to which the author was subjected, the failure to assess the risk of irreparable harm to the author prior to his deportation or to take into account his best interests constitutes a violation of articles 3 and 37 of the Convention.", "14.7. The Committee considers that, in the light of the circumstances of the case, the fact that the author, as an unaccompanied child, did not undergo an identity check and assessment of his situation prior to his deportation and was not given an opportunity to challenge his potential deportation violates his rights under articles 3 and 20 of the Convention.", "14.8. Lastly, the Committee considers that the manner in which the author was deported, as an unaccompanied child deprived of his family environment and in a context of international migration, after having been detained and handcuffed and without having been heard, without receiving the assistance of a lawyer or interpreter and without regard to his needs, constitutes treatment prohibited under article 37 of the Convention.", "14.9. The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts before it amount to a violation of articles 3, 20 and 37 of the Convention.", "...”", "THE LAW", "I. PRELIMINARY ISSUES", "A. Continued examination of the case – Article 37 § 1 (a)", "69. In their observations before the Grand Chamber in reply to a written question to the parties concerning the maintenance of contact between the applicants and their representatives, the latter stated that both applicants were living in precarious circumstances and had no fixed address. The first applicant was reportedly in Mali and was moving from one place to another within the country. The second applicant was apparently moving around within Spain. One of the applicants’ representatives stated that he remained in contact with both applicants, through his legal assistant, by telephone and WhatsApp. With the help of Bambara interpreters, he and his assistant received updates from the applicants and had informed them of developments concerning the Chamber judgment and of the referral of their case to the Grand Chamber. The applicants had retained an interest in the case.", "70. For their part, the Government made no reference, either in the Chamber proceedings or in their written observations before the Grand Chamber, to the issue of continued examination of the case by the Court. In a letter received by the Court on 25 April 2018 they complained of a lack of information from the applicants’ representatives in that regard, but did not request the striking-out of the case on that ground, although they referred at the hearing to the judgment in V.M. and Others v. Belgium (striking out) ([GC], no. 60125/11, 17 November 2016) concerning the lack of an address and contact details for the applicants.", "71. In view of these circumstances, the Court considers it necessary first to examine the need to continue the examination of the application in the light of the criteria set forth in Article 37 of the Convention. That provision reads as follows:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. ...”", "72. The Court observes that in the case of V.M. and Others v. Belgium (cited above), it examined the need to continue the examination of the case with reference to the criteria set forth in Article 37 of the Convention. It specified, in the light of Article 37 § 1 (a), that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court), but that it was also important that contact between the applicant and his or her representative be maintained throughout the proceedings, both in order to learn more about the applicant’s particular circumstances and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see also Sharifi and Others v. Italy and Greece, no. 16643/09, §§ 124-34, 21 October 2014).", "73. The Court notes that in some cases in which the applicant’s representative had lost touch with his or her client, including in cases concerning the expulsion of aliens, it found that such a situation might warrant striking the application out of the list under Article 37 § 1. The lack of contact was sometimes taken as an indication that the applicant no longer wished to pursue the application within the meaning of Article 37 § 1 (a) (see Ibrahim Hayd v. the Netherlands (dec.), no. 30880/10, 29 November 2011, and Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013) or that examination of the application was no longer justified because the representative could not “meaningfully” pursue the proceedings before it in the absence of instructions from the applicant, despite the fact that the lawyer had authority to continue with the proceedings (see Ali v. Switzerland, 5 August 1998, §§ 30-33, Reports of Judgments and Decisions 1998-V, and Ramzy v. the Netherlands (striking out), no. 25424/05, §§ 64-66, 20 July 2010). In some cases, the Court’s findings combined these two reasons (see M.H. v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014, and M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015). In Sharifi and Others (cited above), the Court struck the application out of its list with regard to some of the applicants in respect of whom the information provided by the lawyer was vague and superficial and insufficiently substantiated (§§ 127-29 and 131-34).", "74. The Court notes that in the present case the Government did not request that the case be struck out of the list for this reason. It observes that the applicants’ representatives stated that they remained in touch with the applicants, who could be contacted by telephone and WhatsApp. Furthermore, one of the lawyers read out at the hearing an extract from a conversation he had reportedly had with the first applicant, in which the latter had told him that he “could still not accept that human beings could treat other human beings like that”, that he had suffered harm when his rights had been breached by Spain, and that he wanted to see “steps taken so that other people did not suffer the same harm”. The Court also notes that the powers of attorney included in the case file are signed and bear fingerprints. In the Court’s view, there is nothing in the case file that could call into question the lawyers’ account or the exchange of information with the Court (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 54, ECHR 2012).", "75. That being said, the Court observes that, even if the circumstances of a case lead to the conclusion that an applicant no longer wishes to pursue the application, it may continue its examination “if respect for human rights as defined in the Convention and the Protocols thereto so requires” (Article 37 § 1 in fine ). In the cases cited at paragraph 73 above the Court considered that there were no special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto requiring it to continue the examination of the application (Article 37 § 1 in fine ).", "76. By contrast, in the Grand Chamber judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 81-82, ECHR 2016), the Court considered that the circumstances of the case justified striking the case out of its list under Article 37 § 1 (c) since there was no longer a risk that the expulsion order would be enforced. It nevertheless decided to continue its examination of the application for the following reasons:", "“81. It will be recalled that on 2 June 2014 the case was referred to the Grand Chamber in accordance with Article 43 of the Convention ...", "82. The Court notes that there are important issues involved in the present case, notably concerning the duties to be observed by the parties in asylum proceedings. Thus, the impact of the current case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber.”", "77. The Court reached a similar conclusion in its Grand Chamber judgment in Paposhvili v. Belgium ([GC], no. 41738/10, 13 December 2016). In that case it found that there were important issues at stake, notably concerning the interpretation of the case-law on the expulsion of aliens who were seriously ill. It therefore considered that the impact of the case went beyond the applicant’s particular situation (§§ 132 and 133).", "78. The Court observes that the present case was referred to the Grand Chamber in accordance with Article 43 of the Convention, which provides that a case can be referred if it raises “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”. It notes that important issues are also at stake in the present case, particularly concerning the interpretation of the scope and requirements of Article 4 of Protocol No. 4 with regard to migrants who attempt to enter a Contracting State in an unauthorised manner by taking advantage of their large numbers. This is especially important in the context of the “new challenges” facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East (see Khlaifia and Others, cited above, § 241). The participation of numerous third parties, both governments and NGOs (see paragraph 12 above), testifies to the public’s interest in the case. Thus, the impact of this case goes beyond the particular situation of the applicants (see F.G. v. Sweden, cited above, § 82).", "79. In view of the foregoing, the Court reiterates that there is no reason to cast doubt on the credibility of the information provided by the applicants’ representatives as to the truth of their contact with the applicants (see paragraph 74 above). In any event, the Court considers that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention.", "B. Assessment of the evidence and establishment of the facts by the Court", "80. The Government submitted that the applicants had not demonstrated that they had taken part in the attempt to enter Spain at the Melilla border at daybreak on 13 August 2014. They noted the applicants’ claim to recognise themselves on the video-footage which they provided (see paragraph 27 above). Basing their assertions on expert assessments, the Government criticised the poor quality of the video-recordings in question, which in their view made it impossible to compare the footage with the photographs in the official identity archives, which had been checked when the applicants had entered Spanish territory subsequently. The applicants had not provided proof of their participation in the storming of the fences, although the burden of proof lay with them. In any event, on the basis of the images provided by the applicants and in view of the injuries and fractures they claimed to have sustained prior to their attempted entry, the first applicant would have been unable to climb over the three fences and the second applicant, who had allegedly had a painful knee, could not be the person shown on the video-footage provided, who appeared to have a problem with his heel and a broken arm. The Government contested the Chamber judgment in that regard and argued, relying on Article 34 of the Convention, that the applications should be declared inadmissible for lack of victim status.", "81. The applicants, meanwhile, submitted that the evidence they had gathered – videos of the storming of the fences in which they claimed to recognise themselves among the other migrants, and reports by independent international institutions and organisations – was sufficient to demonstrate that they had indeed been part of the group that had attempted to enter Spain by scaling the fence at Melilla on 13 August 2014 in large numbers, and that they had been summarily returned to Morocco. The Spanish Government had already acknowledged the existence of a systematic practice of collective summary expulsions at the Melilla border fence. The applicants called into question the independence and quality of the reports submitted by the Government, arguing that no “comparison” was possible since the photographs from the official identity archives used by the Government were not the relevant images. They criticised the Government for not producing the video-recordings made by the infrared security cameras and movement sensors installed at the Melilla fence. In the applicants’ submission, those images would have been clearer than the ones which they had themselves produced (see paragraph 27 above) and which had been taken by third parties (journalists and other eyewitnesses) despite the threats issued by the Guardia Civil officials in an attempt to prevent them from filming.", "82. The applicants observed that it was of the utmost importance for the effective operation of the system of individual petition that States should furnish all necessary facilities to make possible a proper and effective examination of applications (they referred to Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000-VI). They also observed that in its judgment in Hirsi Jamaa and Others (cited above), the Court had attached particular weight to the applicants’ version because it was corroborated by a large number of witness statements gathered by UNHCR, the CPT and Human Rights Watch (§ 203), as in the present case (see, by way of example, paragraphs 55 et seq. above concerning the reports of the Commissioner for Human Rights, the CPT and the Special Representative of the Secretary General of the Council of Europe on migration and refugees). They argued that their inability to provide additional evidence of their participation in the storming of the fences on 13 August 2014 was the result of the Spanish government’s failure to comply with the procedures for identifying persons and assessing their individual circumstances as required by Article 4 of Protocol No. 4.", "83. In the light of the parties’ submissions the Court will now examine the Government’s objection that the applicants lack victim status as a preliminary issue concerning the establishment of the facts.", "84. In this regard the Court observes significant differences in the parties’ accounts of the facts. The question is therefore whether the Grand Chamber is persuaded of the truthfulness of the applicants’ statements regarding their participation in the storming of the fences on 13 August 2014, notwithstanding the fact that the evidence adduced by them does not appear conclusive.", "85. According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151). In this context it must be borne in mind that the absence of identification and personalised treatment by the authorities of the respondent State in the present case, which has contributed to the difficulty experienced by the applicants in adducing evidence of their involvement in the events in issue, is at the very core of the applicants’ complaint. Accordingly, the Court will seek to ascertain whether the applicants have furnished prima facie evidence in support of their version of events. If that is the case, the burden of proof should shift to the Government (see, mutatis mutandis, El-Masri, cited above, § 152, and Baka v. Hungary [GC], no. 20261/12, § 149, 23 June 2016).", "86. The Court notes that the applicants gave a coherent account of their individual circumstances, their countries of origin, the difficulties that had led them to Mount Gurugu and their participation on 13 August 2014, together with other migrants, in the storming of the fences erected at the land border between Morocco and Spain (see paragraphs 24 et seq. above), the storming of which was immediately repelled by the Spanish Guardia Civil. In support of their assertions the applicants provided video-footage showing the storming of the fences as described by them, and on which they claimed to recognise themselves. The expert reports provided by the Government, meanwhile, served only to demonstrate the impossibility of identifying the applicants in the footage, but did not refute the applicants’ arguments.", "87. The Court further observes that, as noted in paragraph 59 of the Chamber judgment, the Government did not deny the existence of the summary expulsions of 13 August 2014 and, shortly after the events in the present case, even amended the Institutional Law on the rights and freedoms of aliens in Spain in order to legalise this practice (see paragraphs 20 and 33 above).", "88. In such circumstances and in view of the background to the present case, the Court considers that the applicants have presented prima facie evidence of their participation in the storming of the border fences in Melilla on 13 August 2014 which has not been convincingly refuted by the Government. Consequently, the Court dismisses the Government’s preliminary objection of lack of victim status, and will presume the account of the events presented by the applicants to be truthful.", "II. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION", "89. Article 1 of the Convention provides:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "A. The Chamber judgment", "90. The Chamber did not consider it necessary to determine whether the fences scaled by the applicants were located on Spanish or Moroccan territory. It took the view that from the point in time at which the applicants climbed down from the fences they had been under the continuous and exclusive control, at least de facto, of the Spanish authorities. There were no considerations regarding the powers, functions and actions of the Spanish security forces capable of leading to any other conclusion. Referring to the judgment in Hirsi Jamaa and Others (cited above), the Chamber thus held that, in any event, the alleged facts came within Spain’s “jurisdiction” within the meaning of Article 1 of the Convention.", "B. The parties’ submissions", "91. The Government contested the assertion that Spain was responsible for events occurring in the border area separating the Kingdom of Morocco and the Kingdom of Spain. They confirmed that the fences had been erected on Spanish territory. However, they submitted that the three fences at the Melilla border constituted an “operational border” designed to prevent unauthorised entry by non-nationals. After the introduction of the system of border controls, Spain had limited its “jurisdiction”, which began beyond the police line forming part of “measures against persons who [had] crossed the border illegally” within the meaning of Article 13 of the Schengen Borders Code. In other words, it came into play only at the point where migrants had crossed all three of the fences comprising the system of border controls and had passed the police line (see paragraphs 15 et seq. above). In the Government’s assertion, it was only after that point that Spain was bound by the obligation under the Convention to identify the persons concerned and by the procedural safeguards applicable to expulsion procedures. Were it otherwise, the result would be a “calling effect” liable to degenerate into a humanitarian crisis of major proportions.", "92. The Government maintained that the applicants, after scaling the fences, had not climbed down from the “inner” fence (the third fence, on the Spanish side) by themselves, but had been apprehended by the Guardia Civil officials and escorted back to Morocco. As they had not passed the police line they had not come within Spain’s full jurisdiction.", "93. The applicants took the view that Spain’s jurisdiction was not open to question in the present case in so far as the fences were located on Spanish territory, a fact which had been acknowledged by the Government. The concept of “jurisdiction” was principally territorial and was presumed to be exercised normally throughout the State’s territory (the applicants referred to Hirsi Jamaa and Others, cited above, § 71). No exceptions could be made to that principle.", "94. In any event, the applicants were of the view that the removal of non-national migrants, the effect of which was to prevent them from reaching the borders of the State or to send them back to another State, constituted an exercise of jurisdiction within the meaning of Article 1 of the Convention which engaged the responsibility of the State in question under Article 4 of Protocol No. 4 (ibid., § 180). Where there was control over another by agents of the State, this was exercised by the State in question over the individuals concerned (ibid., § 77).", "C. The third parties’ observations", "95. The French Government did not subscribe to the Chamber’s assessment regarding the nature of the control exercised over the applicants, taking the view that the applicants had not been within the jurisdiction of the Spanish State for the purposes of Article 1 of the Convention. In their view, “effective and continuous” control for the purposes of the Court’s case-law implied a certain duration and actual control (physical or in the form of authority) over the persons concerned. A form of control that was confined, as in the present case, to a brief, limited intervention in the context of action to defend the country’s land borders and protect national security could not, in their submission, give rise to extraterritorial application of the Convention.", "96. The Italian Government, for their part, noted that the applicants had not been staying on the territory of the Spanish State. They stressed that Directive 2008/115/EC (the “Return” Directive) applied only to third ‑ country nationals staying illegally on the territory of a member State. They referred to the European Union rules and, in particular, to the Schengen Borders Code (see paragraphs 45 et seq. above), which required member States with EU external borders to operate tight border controls.", "97. The Belgian Government submitted that the facts of the case fell exclusively within the scope of surveillance of the external borders of the Schengen Area. Where a member State operated border controls, it could not be required to admit persons attempting to cross the border illegally. Where such persons were turned back – with or without being intercepted – they could not be said to have entered the territory of the State concerned and to come within its jurisdiction. The findings regarding the issue of jurisdiction in Hirsi Jamaa and Others and Khlaifia and Others could not be transposed to the instant case since the international law of the sea, which had played a key role in those cases, was not applicable in the present case.", "98. The non-State third parties argued in the Chamber and Grand Chamber proceedings that Spanish jurisdiction applied in the border area. Some of them contested, in particular, the Guardia Civil border control operations protocol of 26 February 2014 and service order no. 6/2014 of 11 April 2014, which excluded application of the legislation on aliens’ rights in the border area and Spain’s jurisdiction in that regard, unless the migrants in question had climbed down from the inner fence and gone beyond the police line. They pointed out that this land came within Spain’s jurisdiction under domestic and international law in all other contexts.", "99. The CEAR argued that Spanish jurisdiction was applicable in the present case, finding support, in particular, in the passages from the annual reports of the Spanish Ombudsperson’s Office set out at paragraphs 39 et seq. above.", "100. The AIRE Centre, Amnesty International, ECRE, the International Commission of Jurists and the Dutch Council for Refugees, which submitted joint observations as third ‑ party interveners, cited the judgment in Hirsi Jamaa and Others (cited above, § 180) to the effect that “the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which [was] to prevent migrants from reaching the borders of the State or even to push them back to another State, constitute[d] an exercise of jurisdiction within the meaning of Article 1 of the Convention which engage[d] the responsibility of the State in question under Article 4 of Protocol No. 4”. In their view, the same must apply to situations in which persons arriving in Spain illegally were refused entry into the country (they referred to Sharifi and Others, cited above, § 212). These persons were under the effective control of the authorities of that State, whether they were inside the State’s territory or on its land borders.", "101. The United Nations High Commissioner for Human Rights stressed in the Chamber proceedings that border control measures were not exempt from the concept of jurisdiction and that international human rights obligations were fully applicable in that regard.", "D. The Court’s assessment", "1. General principles", "102. Under Article 1 of the Convention, the undertaking of the Contracting States is to “secure” (“ reconnaître ” in French) to everyone within their “jurisdiction” the rights and freedoms defined in the Convention (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.), [GC], no. 52207/99, § 66, ECHR 2001-XII). Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I, and Matthews v. the United Kingdom [GC], no. 24833/94, § 29, ECHR 1999-I). The exercise of “jurisdiction” is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).", "103. A State’s jurisdictional competence under Article 1 is primarily territorial (see Banković and Others, cited above, § 59; Ilaşcu and Others, cited above, § 3 12; and Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 178, 29 January 2019). It is presumed to be exercised normally throughout the State’s territory. Only in exceptional circumstances may this presumption be limited, particularly where a State is prevented from exercising its authority in part of its territory (see Assanidze v. Georgia [GC], no. 71503/01, §§ 137-39, ECHR 2004-II, and Ilaşcu and Others, cited above, §§ 312-13 and 333).", "2. Application to the present case", "104. The Court notes at the outset that it is not disputed that the events in issue took place on Spanish territory. Moreover, the Government acknowledged that the three border fences at Melilla had been erected on their territory. However, they invoked an exception to territorial jurisdiction which not only encompassed any land between the Moroccan-Spanish border and the outer fence of the Melilla border-protection system, but extended up to the point of descent from the “inner” (third) fence (on the Spanish side) and the area between that fence and the police line, up to the point where the latter had been passed.", "105. As a State’s jurisdiction is presumed to be exercised throughout its territory, the question to be addressed is whether the Spanish State may, by invoking exceptional circumstances as it has done, alter or reduce the extent of its jurisdiction by claiming an “exception to jurisdiction” applicable to the part of its territory where the events in issue took place.", "106. In that regard the Court observes at the outset that its case-law precludes territorial exclusions (see Matthews, cited above, § 29, and Assanidze, cited above, § 140) other than in the instance referred to in Article 56 § 1 of the Convention (dependent territories), which is not applicable in the present case. However, it has previously acknowledged that the States which form the external borders of the Schengen Area are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011; Hirsi Jamaa and Others, cited above, § 122; and Sharifi and Others, cited above, § 176), but did not draw any inferences with regard to the jurisdiction of the States concerned.", "107. In the instant case the Government referred to the difficulty of managing illegal immigration through the Melilla enclave and, in particular, the storming of the border fences by groups generally comprising several hundred non-nationals. However, they did not allege that this situation prevented them from exercising their full authority over this part of the national territory. Indeed it is clear that the Spanish authorities alone were acting there, as is apparent from the case file and from the video-footage provided by the parties, which shows that it was Spanish law-enforcement officials who helped the migrants concerned to climb down from the fences.", "108. Hence, the Court cannot discern any “constraining de facto situation” or “objective facts” capable of limiting the effective exercise of the Spanish State’s authority over its territory at the Melilla border and, consequently, of rebutting the “presumption of competence” in respect of the applicants (see Ilaşcu and Others, cited above, §§ 313 and 333).", "109. The Court further reiterates that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term’s meaning in public international law (see Ilaşcu and Others, cited above, § 312, and Assanidze, cited above, § 137). Under that law, the existence of a fence located some distance from the border does not authorise a State to unilaterally exclude, alter or limit its territorial jurisdiction, which begins at the line forming the border. Furthermore, as regards the argument of some of the third-party interveners that EU law required member States to protect the European Union’s external borders under the Schengen Borders Code (see paragraphs 45-46 above), the Court observes that Article 1, Article 2 § 2 (a) and Article 4 §§ 3 and 4 of the Return Directive make clear that States may adopt or maintain provisions that are more favourable to persons to whom they apply, without their decisions and actions in that regard coming within the European Union’s sphere of competence (see paragraph 47 above). Furthermore, this EU legislation does not affect Spanish jurisdiction under international law. Besides, as is stipulated in Article 27 of the Vienna Convention on the Law of Treaties, the provisions of internal law may not be invoked as justification for failure to perform a treaty (see paragraph 61 above).", "110. Furthermore, the Court has previously stated that the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see, mutatis mutandis, Hirsi Jamaa and Others, cited above, § 178). As a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310, and Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, ECHR 2011), the Convention cannot be selectively restricted to only parts of the territory of a State by means of an artificial reduction in the scope of its territorial jurisdiction. To conclude otherwise would amount to rendering the notion of effective human rights protection underpinning the entire Convention meaningless (see Assanidze, cited above, § 142).", "111. Accordingly, the events giving rise to the alleged violations fall within Spain’s “jurisdiction” within the meaning of Article 1 of the Convention. Consequently, the Court dismisses the Government’s objection as to lack of jurisdiction.", "III. THE GOVERNMENT’S OTHER PRELIMINARY OBJECTIONS", "A. The applicants’ alleged loss of victim status", "112. The Government submitted that, even assuming that the persons visible in the video-footage were indeed the applicants (see paragraphs 80 ‑ 88 above), the latter had ceased to have victim status in so far as, a few months later, they had succeeded in entering Spanish territory illegally and had been the subject of expulsion orders issued in the context of proceedings which, in the Government’s view, had been attended by all the necessary safeguards (see paragraphs 28 et seq. above ). Furthermore, by the time they lodged their applications with the Court the applicants had already been the subject of the aforementioned individualised expulsion procedures. Only the first applicant had subsequently applied for asylum, although both applicants had been assisted by lawyers and interpreters. They had therefore ceased to have victim status when they had succeeded in entering Spain in late 2014 without seeking to take full advantage of the procedures available to them. Accordingly, in the Government’s view, the applications should be struck out of the list of cases under Article 37 § 1 (b) and (c) of the Convention.", "113. With regard to the administrative expulsion proceedings commenced in 2015, the applicants stressed that their applications related solely to the summary expulsions of 13 August 2014 and not to the subsequent proceedings referred to by the Government, which had been instituted on the basis of different facts.", "114. In a case of alleged expulsion such as the present one, the Court cannot take into consideration events that occurred following a separate crossing of the border. Consequently, it dismisses the Government’s request to strike the case out of its list on this ground.", "B. Exhaustion of domestic remedies", "1. The Government", "115. In the Government’ submission, the two applicants could have tried to obtain entry visas for Spain in their respective countries of origin, under section 27(1) of the LOEX (see paragraph 32 above). The first applicant, in particular, could have applied for a special working visa under the Framework Agreement on cooperation in the field of immigration between Spain and Mali of 23 January 2007. Between 2015 and 2017, 34 working visas had been issued to Malian nationals and 31 to nationals of Côte d’Ivoire. The applicants could also have applied for asylum in Morocco or in any Spanish consulate in the countries they had travelled through on their way to Morocco, including in their countries of origin (section 38 of Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection, see paragraph 34 above). They could likewise have applied at the Spanish embassy in Rabat, the consulate in Nador (16.8 km from Melilla) or at the Beni Enzar official border crossing point, from where they would have been taken to the Melilla police station (section 21(1) of Law no. 12/2009, cited above).", "116. The Government also observed that the orders for the applicants’ expulsion had not been challenged in the administrative courts and that only the first applicant had lodged an asylum application, aimed solely at obtaining a stay of execution of his expulsion. This had been rejected following two reports from UNHCR concluding that there were no grounds for granting asylum. In the absence of any administrative appeal against the expulsion order, it had been enforced on 31 March 2015 and the first applicant had been sent back to Mali. As to the second applicant, he had not challenged the decision of 23 February 2015 dismissing his administrative appeal against the order for his expulsion, despite the fact that, like the first applicant, he had been represented by a lawyer (see paragraphs 28 et seq. above).", "2. The applicants", "117. In the applicants’ submission, there had been no mechanism enabling them to gain lawful access to Spanish territory in order to apply for asylum there. They maintained that the Beni Enzar official border crossing point was not accessible to migrants from sub-Saharan Africa. According to the reports furnished by the applicants and some of the third-party interveners in the Grand Chamber proceedings, the Moroccan authorities restricted access to that crossing point in practice. In the applicants’ submission, the only options available to them in order to enter Spain had been to climb the fences or cross the border illegally with the help of smugglers.", "118. The applicants argued that the Moroccan authorities had not recognised any international protection mechanism until 2013. In 2013 ‑ 2014, when the Moroccan Office for Refugees and Stateless Persons (BRA) had resumed operations, its activities had been confined to regularising the status of refugees who had been recognised by UNHCR in the meantime. Likewise, Mauritania had no effective refugee protection system (operated either by the State itself or by UNHCR), and the situation was the same in Algeria. In Mali, the national asylum system, which existed in theory but operated on a discretionary basis, did not make available any data regarding asylum applications; moreover, UNHCR had ceased its activities there in 2002. Furthermore, the countries mentioned – Morocco, Algeria, Mauritania and Mali – were not on the list of safe countries in that regard. In the applicants’ view, the possibility of applying for international protection in third countries did not constitute an effective remedy and was in any event non-existent. The remedies in question would have had to be available, effective and have suspensive effect, and to prove workable in respect of the collective nature of the expulsion; this had clearly not been the case.", "119. The applicants stressed that their applications concerned the summary expulsions of 13 August 2014 and not the subsequent proceedings referred to by the Government, which related to different facts. In any event, only domestic remedies which had suspensive effect, and were therefore deemed effective, had to be exhausted. In the applicants’ submission, Article 4 of Protocol No. 4 to the Convention and Article 13 of the Convention were closely linked (they referred to Georgia v. Russia (I) [GC], no. 13255/07, § 212, ECHR 2014 (extracts)). As far as their summary expulsion on 13 August 2014 was concerned, they had not had access to any effective remedy which they could have exercised before or after the enforcement of the orders for their expulsion.", "3. The Court’s assessment", "120. The Court observes that the Government have outlined the different procedures which, they maintain, were available to the applicants in order to enter Spanish territory lawfully with an entry visa or a contract of employment or as asylum-seekers (see paragraph 115 above). In the light of the applicants’ complaint that they were subjected to a collective expulsion, the procedures proposed by the Government cannot be regarded as effective remedies in respect of the alleged violation. The Government themselves presented them as alternatives to illegal entry rather than as remedies. This question will be examined further below.", "121. Furthermore, and in so far as the Government refer to the expulsion orders issued after the events under consideration in the present applications, and to the asylum proceedings begun by the first applicant in 2015 while he was still in Spain (see paragraphs 112 et seq. above), the Court has already found (see paragraph 114 above) that, although the applicants did not exhaust the available remedies in respect of the expulsion orders or the refusal of asylum, these matters do not constitute the subject matter of the present case, which concerns the alleged collective expulsion following the events of 13 August 2014.", "122. The Government’s objection of non-exhaustion must therefore be dismissed.", "IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "123. The applicants contended that they had been subjected to a collective expulsion without an individual assessment of their circumstances and in the absence of any procedure or legal assistance. In their view, this situation reflected a systematic policy of removing migrants without prior identification, which had been devoid of legal basis at the relevant time. They specified that the present applications did not concern the right to enter the territory of a State but rather the right to an individual procedure in order to be able to challenge an expulsion. They relied in this regard on Article 4 of Protocol No. 4 to the Convention, which provides:", "“Collective expulsion of aliens is prohibited.”", "A. The Chamber judgment", "124. The Chamber found that the Government’s preliminary objection regarding the applicability ratione materiae of Article 4 of Protocol No. 4 in the present case was closely linked to the substance of the applicants’ complaint and should be joined to the merits of the case. The Chamber did not deem it necessary to determine whether the applicants had been removed after entering Spanish territory, or before managing to do so as argued by the Government. It held that if interceptions on the high seas came within the ambit of Article 4 of Protocol No. 4 (see Hirsi Jamaa and Others, cited above, § 180, and Sharifi and Others, cited above, § 212), the same must also apply to the refusal of entry to the national territory in respect of persons arriving in Spain illegally. The Chamber concluded from this that the case did indeed concern an “expulsion” for the purposes of Article 4 of Protocol No. 4 (see paragraphs 98 et seq. of the Chamber judgment, in particular paragraphs 102-05). As to the merits of the complaint concerning the “collective” nature of the expulsion, the Chamber concluded that, since the removal measures had been taken in the absence of any procedure whatsoever and without any assessment of the applicants’ individual circumstances or any prior administrative or judicial decision, their expulsion had indeed been collective, in breach of the aforementioned provision.", "B. The parties’ submissions before the Grand Chamber", "1. The Government", "125. The Government submitted that the scope of application of Article 4 of Protocol No. 4 had been widened by the Court’s case-law, and argued that the provision in question was inapplicable in the present case.", "126. In the Government’s view, the provision in question was applicable to aliens arriving in a State’s territory in a peaceful manner. In this context the Government relied on Article 51 of the UN Charter, which articulates States’ inherent right of individual or collective self-defence if an armed attack occurs against a member State. In the Government’s submission, Article 4 of Protocol No. 4 further required the existence of a dangerous situation for the applicants (either in their country of origin or because they were arriving by sea) and an inability on their part to apply for asylum or lawful entry because they were not yet on the territory of the aforementioned State.", "127. Article 4 of Protocol No. 4 was therefore inapplicable where there was no danger to the applicants and/or there was a possible means of requesting asylum or entering from a safe country. The Government referred in that regard to paragraphs 177 and 174 of the judgment in Hirsi Jamaa and Others (cited above), and emphasised the fact that the applicants in the present case were migrants who had attempted to enter Spain illegally by crossing a land border. The applicants had provided no evidence that they fell into one of the internationally recognised categories for the granting of asylum.", "128. The Government maintained that the principle of non-refoulement could be applied only to persons who were in danger or faced a risk recognised under international law. The applicants in the present case had not faced any such risk in Morocco, as confirmed by the Court in its decision declaring the complaint under Article 3 inadmissible. Moreover, even after they had succeeded in entering Spain the applicants had requested asylum belatedly (N.D.), or not at all (N.T.). In the Government’s view, they could not therefore be regarded as asylum-seekers. The applicants came from safe third countries, they had not been exposed to risk and they could have entered Spain lawfully if they had submitted asylum applications at the Spanish embassy or consulates in Morocco (see paragraph 34 above) or in the other countries they had travelled through, or at the authorised border crossing point at Beni Enzar. Alternatively, they could have secured contracts to work in Spain from their countries of origin. The Government referred in that regard to the report of 18 December 2015 by the Melilla police directorate, which stated that six asylum applications had been submitted at Beni Enzar between 1 January and 31 August 2014 and that, after the office for registering asylum claims had been opened by the Spanish authorities at Beni Enzar on 1 September 2014, 404 applications had been lodged at the same location during the last four months of that year. The Government stated that “before the Special International Protection Unit was built and deployed at [Beni Enzar], the applicant for asylum was informed of his rights, with the help of an interpreter and assisted by a free of charge specialized lawyer assigned by the Bar. He/she was then driven to an open Centre for the Temporary Stay of Migrants, where their basic needs were taken care of. Health services, social services and NGO’s [ sic ] develop their work in these centres too.” In the Government’s view, the applicants had taken part in an illegal storming of the border fences in an attempt to enter Spanish territory without using the designated border crossing points. Furthermore, migratory pressures had been especially intense in 2014 owing to the proliferation of networks of smugglers organising repeated, large-scale and violent assaults on the fences in order to enter Spain through Melilla.", "129. In the Government’s view, the right to enter Spanish territory as claimed by the applicants, that is to say, the right to enter at any point along the border without undergoing any checks, was contrary to the Convention system and posed a threat to the enjoyment of human rights both by the citizens of the member States and by migrants, while affording substantial profits to the criminal organisations engaged in human trafficking. The Government argued that a decision by the Court legitimising such illegal conduct would create an undesirable “calling effect” and would result in a migration crisis with devastating consequences for human rights protection.", "130. In that regard, Articles 72 and 79 of the TFEU itself (see paragraph 43 above) stipulated that policies on border checks, asylum and immigration must not affect the exercise of the responsibilities incumbent upon member States with regard to the maintenance of law and order and the safeguarding of internal security. In the Government’s submission, compliance with the obligations flowing from the Convention and from Article 4 of Protocol No. 4 was compatible with the maintenance of a system for the protection of Spain’s borders.", "131. The Government referred to the special rules for Ceuta and Melilla laid down in the tenth additional provision of the LOEX, as amended by Institutional Law no. 4/2015, cited above (see paragraph 33 above). As a sovereign State belonging to the European Union and forming part of the Schengen external border, Spain had a duty to protect, monitor and safeguard its borders. Hence, that duty transcended the purely national context and constituted a responsibility towards the European Union as a whole.", "132. The Government argued that, in any event, the facts of the present case did not amount to a “collective expulsion of aliens”, since, in order to come within the scope of Article 4 of Protocol No. 4, the measure in question had to constitute the “expulsion” of persons who were in the territory of the respondent State. In their view, the present case did not concern an “expulsion”, but rather the prevention of illegal entry into Spanish territory. They stressed the clear distinction made in the Schengen Borders Code between preventing entry into a European Union member State and the procedure to be followed with regard to persons who had succeeded in entering illegally.", "133. The Government added that the expulsion also had to be “collective” (that is, it had to affect a group of persons linked by the same set of circumstances, specific to that group), and had to be applied to “aliens”.", "134. They contested the findings of the Chamber judgment in so far as no right existed in their view to enter a given State without using the border crossing points. In support of their argument they cited the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights and Articles 2 and 3 of Protocol No. 4 to the Convention. They also referred to paragraph 184 of Hirsi Jamaa and Others (cited above), according to which the Court took into account, in its case-law on Article 4 of Protocol No. 4, whether the lack of an individual removal decision could be attributed to the culpable conduct of the person concerned (the Government cited Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, ECHR 2005-VIII (extracts), and Dritsas and Others v. Italy (dec.), no. 2344/02, 1 February 2011). They requested the Court to find that the applications were inadmissible or, failing that, that there had been no violation of Article 4 of Protocol No. 4 or of Article 13 of the Convention.", "2. The applicants", "135. Referring to the travaux préparatoires of Protocol No. 4, cited in Hirsi Jamaa and Others (cited above, §§ 171 and 174), the applicants observed that no distinction could be made between refugees and non ‑ refugees or between regular and irregular migrants with regard to the protection guaranteed by Article 4 of Protocol No. 4. They noted that the Committee of Experts charged with drafting the Protocol had expressly stated that the term “aliens” applied to “all those who [had] no actual right to nationality in a State, whether they [were] merely passing through a country or reside[d] or [were] domiciled in it, whether they [were] refugees or [had] entered the country on their own initiative, or whether they [were] stateless or possess[ed] another nationality” ( travaux préparatoires, section 61, § 34). This position was reflected in the Court’s case-law (the applicants referred to Sharifi and Others, § 211, and Georgia v. Russia (I), both cited above) and in international law, where the applicability of the prohibition of the collective expulsion of aliens was not linked to their refugee status or to their intention or ability to claim asylum in the country concerned or in a transit country.", "136. The applicants referred to the observations of the United Nations High Commissioner for Human Rights (OHCHR) in the Chamber proceedings, which stated that the prohibition on collective expulsion was distinct from the principle of non-refoulement in so far as it was part of the right to a fair trial, and that this rule required States which were planning to expel a group of aliens to examine the individual situation of each person concerned by the expulsion measure and to take decisions on a case-by-case basis, by means of a procedure ensuring that sufficient consideration was given to each individual’s circumstances. OHCHR had added that individuals might have reasons other than asylum for appealing against their expulsion.", "137. As to the Government’s argument that, in accordance with the concept of an operational border, the present case did not concern an expulsion but rather a refusal of entry or a defensive mechanism against unauthorised entry, the applicants submitted that this was irrelevant in so far as the word “expulsion” was to be interpreted “in the generic meaning, in current use (to drive away from a place)” (they referred to Hirsi Jamaa and Others, cited above, § 174, and Khlaifia and Others, cited above, §§ 243 ‑ 44). In the applicants’ view, Article 4 of Protocol No. 4 was therefore applicable in the present case.", "138. As to the “collective” nature of the expulsion, the applicants submitted that the key point in determining whether or not their expulsion had been contrary to Article 4 of Protocol No. 4 was whether the removal procedure had been individualised. As the Court had reaffirmed in Khlaifia and Others (cited above), “[t]he purpose of Article 4 of Protocol No. 4 [was] to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority” (ibid., § 238). In ruling on the existence of a collective expulsion the Court sought to ascertain, in the light of the circumstances of the case, whether each of the persons concerned had had “a genuine and effective possibility of submitting arguments against his or her expulsion” and whether those arguments “[had been] examined in an appropriate manner by the authorities of the respondent State” (ibid., § 248).", "139. The applicants alleged that they had been part of a group of individuals who had attempted to climb over the Melilla fences and that they had been expelled in similar fashion to the migrants in the cases of Hirsi Jamaa and Others and Sharifi and Others (both cited above). They maintained that they had been quite simply expelled without any procedure, on the basis of the automatic application of the Guardia Civil operations protocol of 26 February 2014 and service order no. 6/2014 of 11 April 2014, without being identified and without any papers being drawn up or issued to them. The applicants observed that, according to the Court’s case-law, the fact of belonging to a group was relevant only in so far as it reflected the collective manner in which the State had dealt with the persons concerned in ordering and enforcing their expulsion.", "140. The applicants noted that the Guardia Civil officials who had been in the vicinity of the fences on 13 August 2014 had not been in a position to consider the applicants’ arguments against their expulsion, as their task was confined to patrolling the border.", "141. In the applicants’ view, their collective expulsion was also contrary to European Union law, which was applicable in Melilla, a Spanish autonomous city. The EU Directive on asylum procedures required EU member States, among other things, to facilitate access to their asylum procedures for persons who had made an application for protection and who “[could] be understood to seek refugee status”, including “at the border, in the territorial waters or in the transit zones”. Even the Schengen Borders Code expressly set limits on States’ obligation to monitor their external borders, requiring them to provide “a substantiated decision stating the precise reasons for the refusal [of entry]”, taken “by an authority empowered by national law”, and to notify the persons concerned of the decision by means of a “standard form”.", "C. The third parties’ observations", "1. The Commissioner for Human Rights of the Council of Europe", "142. The Commissioner for Human Rights and her predecessor observed that collective expulsions made it impossible to protect migrants’ fundamental rights, and in particular the right to seek asylum, and that in practice immediate returns deprived migrants of their right to an effective remedy by which to challenge their expulsion. The Commissioner for Human Rights stressed that the border fences in question were part of Spanish territory and that the question that arose in the present case was not so much whether the applicants should have requested asylum but whether their right to protection against collective expulsions had been breached.", "143. The Commissioner for Human Rights observed that the territories of Ceuta and Melilla were part of the Schengen Area. Under the LOEX (Institutional Law no. 4/2000) as in force at the time of the events, aliens could be refused entry at border posts and aliens attempting to enter the country in an unauthorised manner, including those intercepted near the border, could be sent back. However, these procedures required the identification and registration of the persons intercepted, respect for procedural guarantees, access to a lawyer and an interpreter, and access to the relevant legal remedies. The Commissioner noted that the LOEX had been amended in 2015 in order to lend coherence to the Government’s concept of an “operational border”, and that this amendment was liable to erode migrants’ fundamental rights protections and encourage the practice of summary returns by other member States. She had therefore called on the national authorities to reconsider the amendment, to improve the ambiguous legal framework governing rejections at the border (“push-backs”) and to put in place a clear procedural system, compliant with international human rights law, for the border police in Ceuta and Melilla. She observed that an office responsible for dealing with asylum applications had been opened in Beni Enzar in November 2014. However, access to this border crossing point continued to be impossible for persons from sub ‑ Saharan Africa who were on the Moroccan side of the border, whose only option in order to enter Spain was to climb over the border fences. The Commissioner for Human Rights referred in particular to the report of the fact ‑ finding mission to Spain by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, the relevant paragraphs of which are set out at paragraph 58 above.", "2. The third-party Governments", "(a) The Belgian Government", "144. The Belgian Government submitted that the facts of the case fell exclusively within the scope of surveillance of the external borders of the Schengen Area for the purposes of Article 77 § 1 (b) of the Treaty on the Functioning of the European Union. They pointed out that the rules regarding the crossing of borders had also been adopted at European level and that the member States were required to monitor their external borders and to take measures to prevent irregular crossings. The aim, in their submission, was to prevent third-country nationals from crossing the external Schengen borders illegally in unauthorised places.", "145. They observed that, under Article 5 § 1 of the Schengen Borders Code, “[e]xternal borders [could] be crossed only at border crossing points ...”. They also referred to Article 13 of the Code, according to which the aim of border surveillance was “to apprehend individuals crossing the border illegally”. The procedure provided for in Directive 2008/115/EC (the Return Directive) applied to persons who had already crossed the border without authorisation. In the Belgian Government’s view, that directive was therefore inapplicable in the present case, since the border surveillance authorities had merely repelled an illegal crossing attempt by non-nationals, namely third-country nationals who had sought to enter the State’s territory without complying with the rules in force (that is to say, without requesting asylum or reporting to the border crossing point). Hence, these persons could not be considered to have entered the country’s territory. In the intervener’s view, allowing persons who circumvented the rules on crossing borders to enter the territory, when they did not report to an authorised crossing point and did not have the necessary documents to enter and remain in the country, would be wholly contrary to the European rules on border controls and the crossing of borders, depriving those rules of any purpose and encouraging human trafficking. Persons attempting to cross the border in this way had to be intercepted and handed over, if necessary using coercive means, to the authorities of the State from whose territory they had attempted to cross illegally.", "146. As to the “collective” nature of the expulsion the Belgian Government argued, referring to Khlaifia and Others (cited above, § 234), that in order for Article 4 of Protocol No. 4 to be applicable it had first to be established that the aliens in question were on the territory of a member State and that the authorities of that State had taken measures and/or engaged in conduct aimed at compelling the aliens concerned to leave the State’s territory; this did not include measures such as the non-admission of an alien to the State. The fact of preventing a third-country national from crossing a Schengen external border illegally at an unauthorised point on a member State’s border necessarily implied that the person concerned had never entered the territory of that State, with the result that Article 4 of Protocol No. 4 to the Convention could not come into play.", "(b) The French Government", "147. The French Government referred to paragraph 238 of the judgment in Khlaifia and Others (cited above) regarding the purpose of Article 4 of Protocol No. 4, which was to prevent States from being able to remove aliens without examining their personal circumstances. They pointed out that there was no violation of that provision “where the lack of an individual expulsion decision [could] be attributed to the culpable conduct of the person concerned”. They cited the decisions in Berisha and Haljiti and Dritsas and Others (both cited above).", "148. The French Government submitted that the present case differed from that of Hirsi Jamaa and Others (cited above) and that the circumstances of the instant case and those of interceptions on the high seas could not be compared. The applicants in Hirsi Jamaa, who had been intercepted on the high seas, had not had any opportunity to have their individual circumstances examined and, in particular, to apply for asylum or for a residence permit. That was not the situation in the present case, as there had been nothing to prevent the applicants from making use of the avenues that were available to them in law and in practice in order to obtain individualised consideration of their circumstances by the competent Spanish authorities. The French Government took the view that the applicants had placed themselves in an unlawful situation resulting in the present proceedings and in the fact that no decisions could be taken.", "149. As to the impact of European Union law in the present case, the French Government were of the view that the “Reception” Directive (Directive 2003/9, replaced on 21 July 2015 by Directive 2013/33/EU) and the “Procedures” Directive (Directive 2005/85, replaced on 21 July 2015 by Directive 2013/32/EU) were not applicable, as they applied only where a third-country national had lodged an asylum application at the border or on the territory of a member State (Article 3 of the directives). The applicants had not undertaken any such procedures on the date of the events in issue. Furthermore, the border guards were not required under those directives to inform third-country nationals apprehended at locations other than the border crossing points of the possibility of applying for asylum on the territory of the member State concerned. Even assuming that such a requirement to inform could be inferred from Article 6 § 5 of Directive 2005/85 or Article 8 of Directive 2013/32 where there was evidence to suggest that the persons concerned actually wished to apply for international protection, there was in any event no such evidence in the present case.", "(c) The Italian Government", "150. The Italian Government observed that, according to the Court’s settled case-law, Contracting States had the right to control the entry, residence and removal of non-nationals (they referred, among many other authorities, to Saadi v. Italy [GC], no. 37201/06, § 124, ECHR 2008), and that neither the Convention nor its Protocols conferred the right to political asylum (they cited Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI).", "151. They noted that the applicants had not entered Spanish territory, and observed that Directive 2008/115/EC (the Return Directive) applied only to third-country nationals staying illegally on a member State’s territory. The present case concerned an attempt by third-country nationals to enter Spanish territory illegally despite having the option of applying for international protection, and therefore came within the sphere of the security policy and sovereignty of States and of Europe as a whole. The Italian Government pointed out that States had to comply with their obligations to monitor and control the European Union’s external borders, in the interests of all its member States and of efforts to combat human trafficking and illegal immigration. This, they argued, was wholly compatible with the Convention.", "3. The other third-party interveners", "(a) UNHCR", "152. In its written observations and at the hearing before the Court, UNHCR stated that prior to November 2014 it had not been possible to request asylum at the Beni Enzar border crossing point in Melilla or at any other location, and that there had been no system for identifying persons in need of international protection.", "153. The removal of migrants attempting to enter Spain illegally through an unauthorised border crossing had to comply with certain safeguards laid down by the LOEX as in force at the relevant time. However, this was not the case in Ceuta and Melilla, resulting in “rejections at the border”.", "154. UNHCR observed that the LOEX had been amended in 2015, after the events in the present case, and that the amendment had introduced into the Law the concept of “rejection at the border”, allowing the authorities to expel aliens attempting to cross the Spanish border at Ceuta and Melilla, in order to prevent their illegal entry into the country. In UNHCR’s view, this practice did not conform to the standards of international human rights law and asylum law, especially because of the lack of identification of the persons concerned and the lack of access to fair, efficient and effective procedures without discrimination. Since the entry into force of the amendment regular reports of such rejections (“push-backs”) continued to be received.", "155. UNHCR observed that, in reality, migrants from sub-Saharan Africa did not have access to the immigration and asylum procedures at the authorised border crossing point in Melilla, as they were systematically prevented from reaching the border on the Moroccan side. Worse still, the placement of asylum-seekers in immigration detention in the Melilla and Ceuta enclaves, the length of the asylum procedure and the conditions in the detention centres, particularly the problem of overcrowding, deterred aliens acting in good faith from seeking international protection there. According to the intervener, expulsions and push-backs of migrants without individual identification and in inadequate reception conditions continued.", "(b) OHCHR", "156. OHCHR observed that the prohibition of collective expulsion was a rule of international law inherent in the right to a fair trial. That rule required individualised examination by means of a procedure affording sufficient guarantees demonstrating that the personal circumstances of each of the persons concerned had been genuinely and individually taken into account; in the absence of such examination, expulsions were deemed to be collective in nature. The term “aliens” applied to all non-nationals of the country concerned, irrespective of whether or not they had refugee status. In OHCHR’s submission, the prohibition of collective expulsion differed from the principle of non-refoulement in that it formed part of the right to a fair trial. States had a duty to secure to the victims of collective expulsion the right to an effective remedy with automatic suspensive effect so that they could challenge the measure in question, and also to prevent measures being taken that were contrary to international human rights law, and, if appropriate, to provide redress for the violation, put an end to it, eliminate its consequences and afford compensation to the persons expelled in breach of the prohibition of collective expulsion.", "(c) The CEAR", "157. The CEAR argued that there was no justification for applying the special rules for Ceuta and Melilla laid down by the tenth additional provision of the LOEX, which allowed the administrative authorities to send back migrants in the absence of any procedure, in a manner wholly incompatible with the principle of legal certainty. The intervener referred to the Guardia Civil operations protocol which, even before the legislative amendment in question, had allowed collective expulsions to be carried out without a requirement to afford any safeguards whatsoever at the time of expulsion.", "158. In the CEAR’s view, the legal framework in Morocco regarding international protection was inadequate. Since ratification of the Geneva Convention Relating to the Status of Refugees in 1956, no asylum law had been passed. The BRA (see paragraph 118 above), which was responsible for recognising persons under UNHCR’s mandate, had been inactive from 2004 to 2013, when it had resumed operations. In practice, since 2013, the UNHCR office in Rabat had dealt with asylum applications, with the BRA taking the decisions on the recognition of refugee status in Morocco. However, most migrants trying to reach the UNHCR office in Rabat were arrested and detained, which prevented them from applying for protection (see paragraph 163 below). It was clear from the report of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment that sub-Saharan refugees were subjected to serious violence and sexual abuse on their route to Ceuta and Melilla.", "159. The CEAR submitted that the Return Directive (2008/115/EU, see paragraph 47 above) was not applied to persons who entered Melilla by scaling the fences, who did not undergo any procedure and were immediately removed. In the intervener’s view, while it was possible not to apply the directive to persons who were subject to a refusal of entry or who were intercepted while crossing the border illegally (Article 2 § 2), the provisions of Articles 12 and 13 always had to be taken into account. The directive did not permit any exceptions to the right of asylum or the principle of non-refoulement, and required safeguards against arbitrary and/or collective expulsions. Immediate returns also breached the provisions of the Procedures Directive (2013/32/EU) and the Reception Directive (2013/33/EU) of 26 June 2013 concerning international protection and persons seeking such protection, owing to the lack of individual consideration of applications and the lack of information, procedural safeguards and so on. In cases of immediate return, the persons concerned were deprived of the right to claim asylum and were excluded from the benefit of these two directives.", "(d) The AIRE Centre, Amnesty International, the European Council on Refugees and Exiles (ECRE), the Dutch Council for Refugees and the International Commission of Jurists, acting jointly", "160. These interveners submitted that, where Article 4 of Protocol No. 4 was engaged, it was for the State to provide an effective remedy with suspensive effect, at the very least where there was a risk to life or a risk of ill-treatment or collective expulsion.", "161. They pointed out that Article 19 § 1 of the Charter of Fundamental Rights of the European Union prohibited collective expulsions, adding that States were not exempted from their obligations in that regard because the applicants might have omitted to expressly request asylum or to describe the risks to which they would be exposed in the event of expulsion.", "162. The third-party interveners referred to the Procedures Directive (2013/32/EU, see paragraph 49 above), indicating that the acquis concerning the right to asylum applied not only to requests for international protection made by persons authorised to enter a State’s territory, but also to border procedures. In their view, the prohibition of refoulement applied to actions or omissions resulting in the expulsion from the national territory of non-nationals within the State’s territorial or extraterritorial jurisdiction. Refusing a group of non-nationals access to the territory or to the border without taking the individual circumstances of each of them into consideration amounted to a violation of Article 4 of Protocol No. 4 to the Convention. In the interveners’ view, the responsibility of European Union member States under the EU asylum system was engaged in respect of any individual who might wish to seek international protection. Hence, certain measures constituted an aggravated violation of Article 4 of Protocol No. 4 because of the additional breach of the obligations arising out of EU law.", "163. The interveners contended that Spain was the EU member State with the highest rate of refusal of asylum applications. They noted that certain nationalities were prevented by the Moroccan police from gaining access to the Beni Enzar border crossing point for reasons of racial profiling, as evidenced by various reports from NGOs including Amnesty International and the CEAR.", "D. The Court’s assessment", "1. Applicability", "164. In order to determine whether Article 4 of Protocol No. 4 is applicable the Court must seek to establish whether the Spanish authorities subjected the applicants to an “expulsion” within the meaning of that provision.", "165. In the Government’s view (see paragraphs 125 et seq. above), Article 4 of Protocol No. 4 did not apply to the facts of the present case because the applicants had not been subjected to an “expulsion” but rather had been refused admission into the respondent State. They argued that the applicants had not entered Spanish territory but had merely attempted to enter Spain illegally by crossing a land border. It was true that they had come under the control of the border guards after crossing two fences, but in any event they had not been given leave to enter Spanish territory lawfully. For an expulsion to occur, the person concerned had to have first been admitted to the territory from which he or she was expelled. The Government called into question the Court’s case-law, which, they argued, had departed from the intentions of the drafters of Article 4 of Protocol No. 4 by extending its scope of application to extraterritorial situations (the Government referred to Hirsi Jamaa and Others, cited above, §§ 170-71). In their view, that case-law could not apply in any circumstances to events which, as in the present case, took place in the vicinity of States’ land borders, given that the Hirsi Jamaa and Others judgment itself drew a distinction between “migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State ... [and] those travelling by land” (ibid., § 177). Article 4 of Protocol No. 4 did not afford any protection to the latter, who had the opportunity to cross a land border lawfully but did not make use of it. In the instant case the applicants had not demonstrated that they had been unable to enter Spanish territory lawfully. The Governments of Belgium, France and Italy, in their capacity as third-party interveners, agreed with this argument (see paragraphs 144 et seq. above).", "(a) General principles", "166. The Court notes that in the present case it is called upon for the first time to address the issue of the applicability of Article 4 of Protocol No. 4 to the immediate and forcible return of aliens from a land border, following an attempt by a large number of migrants to cross that border in an unauthorised manner and en masse. Although the Government referred to States’ inherent right of individual or collective self-defence if an armed attack occurred against a member State of the United Nations, the Court notes that Spain has not indicated that it has referred the matter to the Security Council of the United Nations, as anticipated by Article 51 of the UN Charter (see paragraph 60 above) in this regard. In the circumstances of the case, the Court sees no need to pursue this argument further.", "167. The Court finds it appropriate in the present case to place Article 4 of Protocol No. 4 in the context of its case-law on migration and asylum. It should be stressed at the outset that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Paposhvili, cited above, § 172; Hirsi Jamaa and Others, cited above, § 113; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI; and N. v. the United Kingdom [GC], no. 26565/05, § 30, ECHR 2008). The Court also reiterates the right of States to establish their own immigration policies, potentially in the context of bilateral cooperation or in accordance with their obligations stemming from membership of the European Union (see Georgia v. Russia (I), cited above, § 177; Sharifi and Others, cited above, § 224; and Khlaifia and Others, cited above, § 241).", "168. With this in mind, the Court stresses the importance of managing and protecting borders and of the role played in that regard, for those States concerned, by the Schengen Borders Code, which provides that “[b]order control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control” and “should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations” (recital 6, see paragraph 45 above). For that reason, the Contracting States may in principle put arrangements in place at their borders designed to allow access to their national territory only to persons who fulfil the relevant legal requirements.", "169. Furthermore, the Court has previously emphasised the challenges facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East (see M.S.S. v. Belgium and Greece, cited above, § 223; Hirsi Jamaa and Others, cited above, §§ 122 and 176; and Khlaifia and Others, cited above, § 241). This also applies to the situation in Ceuta and Melilla, the Spanish enclaves in North Africa.", "170. Nevertheless, the Court has also stressed that the problems which States may encounter in managing migratory flows or in the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179).", "171. In that regard it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005 ‑ XI; Hirsi Jamaa and Others, cited above, § 175; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 272, 13 September 2016). The Court has also emphasised, like UNHCR, the link between the scope of Article 4 of Protocol No. 4 as defined by the Grand Chamber, and that of the Geneva Convention and of the principle of non-refoulement (see Sharifi and Others, cited above, § 211). Hence, the domestic rules governing border controls may not render inoperative or ineffective the rights guaranteed by the Convention and the Protocols thereto, and in particular by Article 3 of the Convention and Article 4 of Protocol No. 4.", "172. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969. Pursuant to the Vienna Convention, the Court must establish the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of the provision from which they are taken. It must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions. Thus the Court has never considered the provisions of the Convention to be the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see, among many other authorities, Al ‑ Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016; Güzelyurtlu and Others, cited above, § 235; and Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, § 23, ECHR 2014).", "173. In the present case, since the Government argued that the applicants’ case concerned a refusal of admission to Spanish territory rather than an expulsion, the Court is called upon to ascertain whether the concept of “expulsion” as used in Article 4 of Protocol No. 4 also covers the non ‑ admission of aliens at a State border or – in respect of States belonging to the Schengen Area – at an external border of that Area, as the case may be.", "174. In that context the Court notes that Article 2 of the International Law Commission’s Draft Articles on the Expulsion of Aliens (cited at paragraph 65 above and in Khlaifia and Others, cited above, § 243) defines the term “expulsion” as “a formal act” or as “conduct attributable to a State by which an alien is compelled to leave the territory of that State”, emphasising that the term “does not include extradition to another State ... or the non-admission of an alien to a State”. The comments on the Guidelines of the Committee of Ministers of the Council of Europe reach a similar conclusion (see paragraphs 53-54 above).", "175. As regards the concept of “non-admission”, the commentary on Article 2 of the Draft Articles states that it refers to cases where an alien is refused entry and that, in some legal regimes, the term “return” ( refoulement ) is sometimes used instead of “non-admission” (see paragraph 5 of the commentary on Article 2 of the International Law Commission’s Draft Articles on the Expulsion of Aliens, cited at paragraph 65 above).", "176. However, it appears from this commentary that the exclusion of matters relating to non-admission from the scope of the Draft Articles is “without prejudice to the rules of international law relating to refugees”. This is provided for by Article 6 (b), which references the prohibition against refoulement within the meaning of Article 33 of the Geneva Convention relating to the Status of Refugees of 28 July 1951 (see paragraph 62 above). It should be noted that the second report on the expulsion of aliens examined in connection with the writing of the Draft Articles observed that the terms “expulsion”, “escort to the border” and “ refoulement ” were used interchangeably, without any particular semantic rigour. The International Law Commission’s Special Rapporteur, Mr Maurice Kamto, concluded that the word “expulsion” would consequently be used in the context of the present topic as a “generic term” to mean all situations covered by all three terms and many others, such as “return of an alien to a country” or “exclusion of an alien”, the list not being exhaustive (see paragraph 170 of the report, cited at paragraph 66 above).", "177. Article 6 (b) of the Draft Articles provides that a State may not expel or return ( refouler ) a refugee in any manner whatsoever to a State or to the frontiers of territories where the person’s life or freedom would be threatened. In substance, this prohibition is also echoed, inter alia, in Articles 18 and 19 of the Charter of Fundamental Rights of the European Union (see paragraph 42 above), Article 78 § 1 of the TFEU (see paragraph 43 above), Article 3 of UNCAT (see paragraph 63 above), and Article 3 of the Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (see paragraph 64 above), and also in Guideline 2 of the Guidelines of the Committee of Ministers of the Council of Europe on Forced Return (see paragraph 53 above).", "178. It is crucial to observe in this regard that the prohibition of refoulement includes the protection of asylum-seekers in cases of both non-admission and rejection at the border, as stated by UNHCR in its observations in the Chamber proceedings and in the conclusions on international protection adopted by its executive committee (see paragraph 67 above).", "179. As regards the rules of international law concerning the prohibition of refoulement, it is also important to note that the commentary on Article 6 of the International Law Commission’s Draft Articles states that the notion of refugee covers not only refugees lawfully in the territory of the expelling State but also any person who, being unlawfully in that territory, has applied for refugee status, while his or her application is under consideration. However, this is without prejudice to the State’s right to expel an alien whose application for refugee status is manifestly abusive (see paragraph 65 above).", "180. The Court also notes, like UNHCR, that in the specific context of migratory flows at borders, the wish to apply for asylum does not have to be expressed in a particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection (see M.A. and Others v. Lithuania, no. 59793/17, § 109, 11 December 2018; see also Article 8 of the Procedures Directive, cited at paragraph 49 above).", "181. If therefore, as indicated by the International Law Commission, the “non-admission” of a refugee is to be equated in substance with his or her “return ( refoulement )”, it follows that the sole fact that a State refuses to admit to its territory an alien who is within its jurisdiction does not release that State from its obligations towards the person concerned arising out of the prohibition of refoulement of refugees. The Draft Articles on the Expulsion of Aliens apply in general to “the expulsion of all aliens present in the territory of the expelling State, with no distinction between the various categories of persons involved, for example, aliens lawfully present in the territory of the expelling State, aliens unlawfully present, displaced persons, asylum seekers, persons granted asylum and stateless persons” (see paragraph 2 of the commentary on Article 1 of the Draft Articles). Hence, they cover the expulsion both of aliens who are lawfully present and of “those unlawfully present in the territory of the ... State” (see paragraph 3 of the commentary).", "182. Meanwhile, EU law, to which several of the intervening Governments referred, enshrines in primary law the right to asylum and the right to international protection (Article 78 TFEU and Article 18 of the Charter of Fundamental Rights, cited at paragraphs 43 and 42 above), and also the prohibition of collective expulsion and the principle of non-refoulement (Article 19 of the Charter, cited at paragraph 42 above). As regards third-country nationals who are staying illegally on the territory of a member State, the Return Directive (2008/115) sets out the standards and procedures governing their return, “in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations” (Article 1). Furthermore, the Schengen Borders Code stipulates that third-country nationals who do not fulfil all the entry conditions are to be refused entry to the territories of the member States, by means of a substantiated decision, without prejudice to the special provisions concerning the right to asylum and international protection (Articles 13 and 14 of the Schengen Borders Code applicable at the relevant time, corresponding to the new Articles 14 and 15 of the codified version of Regulation (EU) 2016/399 of 9 March 2016 (the Schengen Borders Code), and Article 2 of Directive 2008/115, cited at paragraphs 45, 46 and 47 above). Moreover, member States may decide not to apply the Return Directive to third-country nationals who are subject to such a refusal of entry, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a member State and who have not subsequently obtained an authorisation or a right to stay in that member State (Article 2 § 2 (a) of the Return Directive). In such cases, the member States may apply simplified national return procedures, subject to compliance with the conditions laid down in Article 4 § 4 of the Directive, including the principle of non-refoulement (see the CJEU judgment in the case of Affum, cited above, §§ 72-74).", "183. Furthermore, under Article 14 §§ 4 and 5 of Directive 2011/95 (the Qualification Directive) the principle of non-refoulement, and certain rights enshrined in EU law on the basis of the Geneva Convention (Articles 3, 4, 16, 22, 31, 32 and 33 of that Convention) are applicable, unlike the other rights enumerated in those two instruments, to any person present in the territory of a member State who fulfils the material conditions to be considered a refugee, even if he or she has not formally obtained refugee status or has had it withdrawn. It appears that the enjoyment of these rights is therefore not conditional on having already obtained refugee status, but derives from the sole fact that the person concerned satisfies the material conditions referred to in Article 1 § A (2) of the Geneva Convention and is present in the territory of a member State (see the CJEU judgment in the case of M. v. Ministerstvo vnitra and Others, cited above, §§ 84, 85, 90 and 105). Moreover, under Articles 4 and 19 § 2 of the Charter, EU law does not permit member States to derogate from the principle of non-refoulement under Article 33 § 2 of the Geneva Convention (ibid., § 95).", "184. For its part, the Court has not hitherto ruled on the distinction between the non-admission and expulsion of aliens, and in particular of migrants or asylum-seekers, who are within the jurisdiction of a State that is forcibly removing them from its territory. For persons in danger of ill ‑ treatment in the country of destination, the risk is the same in both cases, namely that of being exposed to such treatment. Examination of the international and EU law materials referred to above supports the Court’s view that the protection of the Convention, which is to be interpreted autonomously (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009; Del Río Prada v. Spain [GC], no. 42750/09, § 81, ECHR 2013; and Allen v. the United Kingdom [GC], no. 25424/09, § 95, ECHR 2013) cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3 (see, mutatis mutandis, M.S.S. v. Belgium and Greece, cited above, § 216, and Amuur v. France, 25 June 1996, § 43, Reports 1996 ‑ III).", "185. These reasons have led the Court to interpret the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others, cited above, § 243, and Hirsi Jamaa and Others, cited above, § 174), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. The Court has also used the term in the context of Articles 3 and 13 of the Convention (see, for example, J.K. and Others v. Sweden, no. 59166/12, §§ 78-79, 4 June 2015, and Saadi, cited above, §§ 95, 124-25), and especially with regard to the removal of aliens at the border (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 54-58, ECHR 2007 ‑ II; Kebe and Others v. Ukraine, no. 12552/12, § 87, 12 January 2017; M.A. and Others v. Lithuania, cited above, §§ 102-03; and Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 123-28, 21 November 2019).", "186. As a result, Article 3 of the Convention and Article 4 of Protocol No. 4 have been found to apply to any situation coming within the jurisdiction of a Contracting State, including to situations or points in time where the authorities of the State in question had not yet examined the existence of grounds entitling the persons concerned to claim protection under these provisions (see, among other authorities, Hirsi Jamaa and Others, cited above, §§ 180 et seq., and M.A. and Others v. Lithuania, cited above, § 70). In the Court’s view, this approach is confirmed by the International Law Commission’s Draft Articles on the Expulsion of Aliens, which, with regard to refugees, equate their non-admission to a State’s territory with their return ( refoulement ) and treat as a refugee any person who applies for international protection, while his or her application is under consideration (see Articles 2 and 6 of the Draft Articles and the commentary thereto, cited at paragraph 65 above; see also the Special Rapporteur’s second report on the expulsion of aliens, cited at paragraph 66 above).", "187. In the Court’s view these considerations, which formed the basis for its recent judgments in Hirsi Jamaa and Others, Sharifi and Others and Khlaifia and Others (all cited above), concerning applicants who had attempted to enter a State’s territory by sea, have lost none of their relevance. There is therefore no reason to adopt a different interpretation of the term “expulsion” with regard to forcible removals from a State’s territory in the context of an attempt to cross a national border by land. Nevertheless, it should be specified that this approach follows from the autonomous interpretation of Convention terms.", "188. The Court would also emphasise that neither the Convention nor its Protocols protect, as such, the right to asylum. The protection they afford is confined to the rights enshrined therein, including particularly the rights under Article 3. That provision prohibits the return of any alien who is within the jurisdiction of one of the Contracting States for the purposes of Article 1 of the Convention to a State in which he or she faces a real risk of being subjected to inhuman or degrading treatment or even torture. In that respect, it embraces the prohibition of refoulement under the Geneva Convention.", "(b) Application to the present case", "189. In the instant case the Government argued that the applicants had not been subjected to an expulsion. It was true that they had come under the control of the border guards after crossing two fences, but in any event they had not been given leave to enter Spanish territory lawfully. For an expulsion to occur, the person concerned had to have first been admitted to the territory from which he or she was expelled.", "190. The Court is in no doubt that the applicants were apprehended on Spanish territory by Spanish border guards and were therefore within Spain’s jurisdiction within the meaning of Article 1 of the Convention. The Court refers in that regard to the considerations it outlined in reply to the Government’s preliminary objection that Spain lacked jurisdiction in the present case (see paragraphs 104 et seq. above). Those considerations were based on the fact that a State may not unilaterally claim exemption from the Convention, or modify its effects, in respect of part of its territory, even for reasons it considers legitimate. The Court observes in that regard that, in accordance with Article 27 of the Vienna Convention, the provisions of internal law may not be invoked as justification for failure to perform a treaty (see paragraph 61 above).", "191. It is further beyond dispute that the applicants were removed from Spanish territory and forcibly returned to Morocco, against their will and in handcuffs, by members of the Guardia Civil. There was therefore an “expulsion” within the meaning of Article 4 of Protocol No. 4. Accordingly, that provision is applicable in the present case. The Court therefore dismisses the Government’s preliminary objection on this point and declares the applications admissible in this regard.", "2. Merits", "192. It must now be ascertained whether the expulsion was “collective” within the meaning of Article 4 of Protocol No. 4.", "(a) General principles", "193. The Court points to its case-law concerning Article 4 of Protocol No. 4, as set out, with regard to migrants and asylum-seekers, in the judgments in Hirsi Jamaa and Others, Sharifi and Others, and Khlaifia and Others (all cited above). According to that case-law, an expulsion is deemed to be “collective” for the purposes of Article 4 of Protocol No. 4 if it compels aliens, as a group, to leave a country, “except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Khlaifia and Others, cited above, §§ 237 et seq.; Georgia v. Russia (I), cited above, § 167; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Davydov v. Estonia (dec.), no. 16387/03, 31 May 2005; Sultani v. France, no. 45223/05, § 81, ECHR 2007-IV (extracts); and Ghulami v. France (dec.), no. 45302/05, 7 April 2009).", "194. As to whether an expulsion is “collective” within the meaning of Article 4 of Protocol No. 4, the Court reiterates its case-law according to which, when it uses the adjective “collective” to describe an expulsion, it is referring to a “group”, without thereby distinguishing between groups on the basis of the number of their members (see Georgia v. Russia (I), cited above, § 167; Sultani, cited above, § 81; Ghulami, cited above; and Khlaifia and Others, cited above, § 237; see also Article 9 § 1 of the International Law Commission’s Draft Articles on the Expulsion of Aliens, which provides that “collective expulsion means expulsion of aliens, as a group”, and the accompanying commentary, cited in Khlaifia and Others (cited above, §§ 46-47, and at paragraph 65 above)). The group does not have to comprise a minimum number of individuals below which the collective nature of the expulsion would be called into question. Thus, the number of persons affected by a given measure is irrelevant in determining whether or not there has been a violation of Article 4 of Protocol No. 4.", "195. Moreover, the Court has never hitherto required that the collective nature of an expulsion should be determined by membership of a particular group or one defined by specific characteristics such as origin, nationality, beliefs or any other factor, in order for Article 4 of Protocol No. 4 to come into play. The decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (see Khlaifia and Others, cited above, §§ 237 et seq., with further references).", "196. The cases of Hirsi Jamaa and Others and Sharifi and Others (cited above) concerned the removal to Libya and Greece respectively of a group of people who had been intercepted together at sea, without their identity or individual circumstances being taken into account. In Hirsi Jamaa and Others (§ 185), the applicants had not undergone any identity checks and the authorities had merely put the migrants, who had been intercepted on the high seas, onto military vessels to take them back to the Libyan coast. In Sharifi and Others (§§ 214-25), the Court found that the migrants, who had been intercepted in Adriatic ports, had been subjected to “automatic returns” to Greece and had been deprived of any effective possibility of seeking asylum. In both cases, many of the applicants were asylum-seekers whose complaint concerning the respondent State, under Article 3 of the Convention, was that they had not been afforded an effective possibility of challenging their return. The applicants’ main allegation in those cases, therefore, was that their return to Libya and Greece respectively would clearly expose them to a “real risk” of ill ‑ treatment or of being repatriated to Eritrea, Somalia and Afghanistan (see Sharifi and Others, cited above, §§ 135, 180 and 215, and Hirsi Jamaa and Others, cited above, §§ 131 and 158).", "197. In the most recent case, that of Khlaifia and Others, the applicants had arrived in Italy across the Mediterranean and had been returned to Tunisia by the Italian authorities. In the proceedings before the Court, they did not allege a violation of Article 3 on account of that expulsion. The Grand Chamber, referring to Hirsi Jamaa and Others (cited above, § 177) and Sharifi and Others (cited above, § 210), reiterated that Article 4 of Protocol No. 4 established a set of procedural conditions aimed at preventing States from being able to remove aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Khlaifia and Others, cited above, § 238, and Andric, cited above). It found that, in order to determine whether there had been a sufficiently individualised examination, it was necessary to have regard to the particular circumstances of the expulsion and to the “general context at the material time” (see Khlaifia and Others, cited above, § 238; Georgia v. Russia (I), cited above, § 171; and Hirsi Jamaa and Others, cited above, § 183).", "198. It is apparent from this case-law that Article 4 of Protocol No. 4, in this category of cases, is aimed at maintaining the possibility, for each of the aliens concerned, to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of his or her return and, for the authorities, to avoid exposing anyone who may have an arguable claim to that effect to such a risk. For that reason, Article 4 of Protocol No. 4 requires the State authorities to ensure that each of the aliens concerned has a genuine and effective possibility of submitting arguments against his or her expulsion (see Hirsi Jamaa and Others, cited above, § 177; Sharifi and Others, cited above, § 210; and Khlaifia and Others, cited above, §§ 238 and 248).", "199. In this context, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion, if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others, cited above, § 239; see also M.A. v. Cyprus, no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248). In Khlaifia and Others, the applicants’ representatives were unable to indicate “the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude[d] their removal”. This called into question the usefulness of an individual interview in that case (ibid., § 253).", "200. Lastly, the applicant’s own conduct is a relevant factor in assessing the protection to be afforded under Article 4 of Protocol No. 4. According to the Court’s well-established case-law, there is no violation of Article 4 of Protocol No. 4 if the lack of an individual expulsion decision can be attributed to the applicant’s own conduct (see Khlaifia and Others, cited above, § 240, and Hirsi Jamaa and Others, cited above, § 184; see also M.A. v. Cyprus, cited above, § 247; Berisha and Haljiti, cited above; and Dritsas and Others, cited above). In the last two cases, it was the lack of active cooperation with the available procedure for conducting an individual examination of the applicants’ circumstances which prompted the Court to find that the Government could not be held responsible for the fact that no such examination was carried out.", "201. In the Court’s view, the same principle must also apply to situations in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety. In this context, however, in assessing a complaint under Article 4 of Protocol No. 4, the Court will, importantly, take account of whether in the circumstances of the particular case the respondent State provided genuine and effective access to means of legal entry, in particular border procedures. Where the respondent State provided such access but an applicant did not make use of it, the Court will consider, in the context in issue and without prejudice to the application of Articles 2 and 3, whether there were cogent reasons not to do so which were based on objective facts for which the respondent State was responsible.", "(b) Application to the present case", "(i) The fact that there were only two applicants", "202. In the present case the Court observes at the outset that the Government disputed the “collective” nature of the expulsion to which the applicants had allegedly been subjected, because the case concerned only two individuals. The Court notes in that regard that the applicants in the present case were part of a large group of aliens acting simultaneously and that they were subjected to the same treatment as the other members of the group.", "203. Irrespective of this factual consideration, the Court reiterates its case-law according to which the number of persons affected by a given measure is irrelevant in determining whether or not there has been a violation of Article 4 of Protocol No. 4. Moreover, the decisive criterion in order for an expulsion to be characterised as “collective” has always been the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (see paragraph 193 above). The Court sees no reason to reach a different conclusion in the present case and therefore rejects the Government’s arguments in this regard.", "(ii) The applicants’ conduct", "(α) The parties’ submissions", "204. The Government further alleged that the applicants’ removal had been the consequence of their own “culpable conduct” for the purposes of the Court’s settled case-law. The applicants had tried to enter Spanish territory in an unauthorised manner (see section 25 of the LOEX and paragraph 32 above) and had in no way demonstrated that they had been incapable of using the numerous legal procedures available in order to obtain permission to cross the border into Spain. The Government argued that it was open to any alien wishing to enter Spain in order to claim asylum or international protection in general to submit such a claim at the Beni Enzar border crossing point (section 21 of Law no. 12/2009, cited at paragraph 34 above) or at the Spanish embassy in Rabat or the Spanish consulates in Morocco (in particular in Nador), or a Spanish embassy or consulate in another country (section 38 of Law no. 12/2009, cited at paragraph 34 above). Hence the applicants could – if they had needed to claim asylum or obtain international protection on other grounds – have submitted such a claim to the aforementioned institutions (section 38 of Law no. 12/2009, see paragraph 34 above). Furthermore, in the proceedings following their eventual entry into Spain in 2015, the applicants had not demonstrated the existence of any risks to which they had been exposed as a result of their removal to Morocco or to their country of origin.", "205. The applicants contested the Government’s assertion that the respondent State had afforded them genuine and effective legal options for obtaining lawful entry into Spain. They simply stressed the impossibility of gaining access to most of the locations referred to by the Government, especially for individuals from sub-Saharan Africa.", "(ß) The Court’s assessment", "206. The Court notes at the outset that the applicants in the present case were members of a group comprising numerous individuals who attempted to enter Spanish territory by crossing a land border in an unauthorised manner, taking advantage of their large numbers and in the context of an operation that had been planned in advance. It further observes that the applicants’ complaints under Article 3 were declared inadmissible by the Chamber.", "207. In the present case the applicants were not identified, as no written procedure was undertaken on 13 August 2014 to examine their individual circumstances. Their return to Morocco was therefore a de facto individual but immediate handover, carried out by the Spanish border guards on the sole basis of the Guardia Civil ’s operations protocol (see paragraph 37 above).", "208. The Court notes the Government’s argument that the applicants had engaged in “culpable conduct” by circumventing the legal procedures that existed for entry into Spain. The question therefore arises whether such procedures existed at the material time; whether they afforded the applicants a genuine and effective opportunity of submitting reasons – assuming that such reasons existed – against their handover to the Moroccan authorities; and, if this was the case, whether the applicants made use of them.", "209. With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case, the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4 § 1 of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution.", "210. However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive, paragraph 49 above). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons (as described in paragraph 201 above), to comply with these arrangements by seeking to cross the border at a different location, especially, as happened in this case, by taking advantage of their large numbers and using force.", "211. The Court must therefore ascertain whether the possibilities which, in the Government’s submission, were available to the applicants in order to enter Spain lawfully, in particular with a view to claiming protection under Article 3, existed at the material time and, if so, whether they were genuinely and effectively accessible to the applicants. In the event that this was the case and the applicants did not make use of these legal procedures, but instead crossed the border in an unauthorised manner (in this instance taking advantage of their large numbers and using force), only the absence of cogent reasons (as described in paragraph 201 above) preventing the use of these procedures could lead to this being regarded as the consequence of the applicants’ own conduct, justifying the fact that the Spanish border guards did not identify them individually.", "212. In this regard, the Court notes that Spanish law afforded the applicants several possible means of seeking admission to the national territory, either by applying for a visa (see paragraph 115 above) or by applying for international protection, in particular at the Beni Enzar border crossing point, but also at Spain’s diplomatic and consular representations in their countries of origin or transit or else in Morocco (see sections 21 and 38 of Law no. 12/2009, cited at paragraph 34 above, and Articles 4, 16 and 29 § 4 of Royal Decree no. 203/1995, cited at paragraph 35 above). The availability and actual accessibility of these legal avenues in the applicants’ case were discussed in detail in the Grand Chamber proceedings, including at the hearing.", "213. It has been established that on 1 September 2014, shortly after the events in the present case, the Spanish authorities set up an office for registering asylum claims (the Special International Protection Unit), open around the clock, at the Beni Enzar international border crossing point. According to the report of the Melilla police directorate (see paragraph 128 above), even before the setting-up of an asylum registration office on that date, a legal avenue to that effect had been established under section 21 of Law no. 12/2009 (see paragraph 34 above). The Government stated that on this basis, twenty-one asylum applications had been lodged between 1 January and 31 August 2014 in Melilla, including six asylum applications lodged at the Beni Enzar border crossing point, with the asylum-seekers being escorted to the Melilla police station in order for them to lodge a formal application. The people in question came from Algeria, Burkina Faso, Cameroon, Congo, Côte d’Ivoire and Somalia.", "214. The Court notes that the applicants and the third-party interveners did not convincingly challenge the accuracy of the statistics submitted by the Government on this issue. Neither did they challenge the statement by the Government according to which “before the Special International Protection Unit was built and deployed at [Beni Enzar], the applicant for asylum was informed of his rights, with the help of an interpreter and assisted by a free of charge specialized lawyer assigned by the Bar. He/she was then driven to an open Centre for the Temporary Stay of Migrants, where their basic needs were taken care of too” (see paragraph 128 above). The Court therefore has no reason to doubt that even prior to the setting-up on 1 September 2014 of the Special International Protection Unit at Beni Enzar, there had not only been a legal obligation to accept asylum applications at this border crossing point but also an actual possibility to submit such applications.", "215. The uncontested fact that, according to the Government’s statistics, 404 asylum applications were submitted at Beni Enzar between 1 September and 31 December 2014 – thus, many more than the six applications in the first eight months of 2014 – does not alter that conclusion. As indicated by the Commissioner for Human Rights of the Council of Europe, referring to the 2014 annual report of the Spanish Ombudsman, those 404 applications were all submitted by Syrian refugees at a time when the Syrian crisis had intensified. This is confirmed by Annex 14 of the Government’s submissions, according to which, owing to the notable increase in the number of applicants for international protection at the end of 2014, and in order to facilitate the processing of asylum applications, the number of national police officers in Beni Enzar and Tarajal was increased, and the officers received the appropriate training to deal with the asylum applications that were submitted. Thus, the higher number of applications from 1 September 2014 onwards would appear to be primarily the result of an increased number of requests for protection by Syrian nationals in that period and, as such, does not call into question the accessibility of Beni Enzar prior to 1 September 2014.", "216. This conclusion would appear to be confirmed by the fact that, according to the statistics, the number of applications for asylum from persons from sub-Saharan Africa did not increase after 1 September 2014, unlike the number of applications from Syrian nationals. Indeed, not a single asylum request from persons from sub-Saharan Africa was submitted at Beni Enzar between 1 September and 31 December 2014 or in the whole of 2015, while only two such requests were submitted in 2016 and none in 2017. These figures were also relied on by the applicants in their pleadings before the Grand Chamber.", "217. Consequently, the mere fact – not disputed by the Government ‑ that only very few asylum requests were submitted at Beni Enzar prior to 1 September 2014 (see paragraph 213 above) does not allow the conclusion that the respondent State did not provide genuine and effective access to this border crossing point. The applicants’ general allegation in their pleadings before the Grand Chamber that “at the material time, it was not possible for anyone to claim asylum at the Beni Enzar border post”, is insufficient to invalidate this conclusion.", "218. The Court will next ascertain whether the applicants had cogent reasons (as described in paragraph 201 above) for not using these border procedures at the Beni Enzar border crossing point. In this regard the Court observes that several third parties to the proceedings before the Grand Chamber argued that physically approaching the Beni Enzar border crossing point was, in practice, impossible or very difficult for persons from sub ‑ Saharan Africa staying in Morocco. However, the various reports submitted to that effect, particularly by UNHCR and the Commissioner for Human Rights of the Council of Europe, are not conclusive as to the reasons and factual circumstances underlying these allegations. Some of them mention racial profiling or severe passport checks on the Moroccan side. However, none of these reports suggests that the Spanish government was in any way responsible for this state of affairs.", "219. As regards the findings of Mr Boček in his report from 2018 to the effect that the Guardia Civil would notify the Moroccan authorities of any movements at the Melilla fence, with the result that the latter would prevent people in Moroccan territory from jumping the fence, those findings would appear to apply only to unauthorised border crossings (see paragraph 58 above). There is nothing to suggest that a similar situation prevailed at official border crossing points, including Beni Enzar.", "220. As regards the applicants in the present case, in the Grand Chamber proceedings they at first did not even allege that they had ever tried to enter Spanish territory by legal means, referring to the aforementioned difficulties only in the abstract. In their second set of observations to the Grand Chamber they still denied any link between their claim under Article 4 of Protocol No. 4 and a possible asylum claim. Only at the hearing before the Grand Chamber did they allege that they had themselves attempted to approach Beni Enzar but had been “chased by Moroccan officers”. Quite apart from the doubts as to the credibility of this allegation arising from the fact that it was made at a very late stage of the procedure, the Court notes that at no point did the applicants claim in this context that the obstacles allegedly encountered, should they be confirmed, were the responsibility of the Spanish authorities. Hence, the Court is not persuaded that the applicants had the required cogent reasons (as described in paragraph 201 above) for not using the Beni Enzar border crossing point at the material time with a view to submitting reasons against their expulsion in a proper and lawful manner.", "221. The Court stresses that the Convention is intended to guarantee to those within its jurisdiction not rights that are theoretical and illusory, but rights that are practical and effective (see paragraph 171 above). This does not, however, imply a general duty for a Contracting State under Article 4 of Protocol No. 4 to bring persons who are under the jurisdiction of another State within its own jurisdiction. In the present case, even assuming that difficulties existed in physically approaching this border crossing point on the Moroccan side, no responsibility of the respondent State for this situation has been established before the Court.", "222. This finding suffices for the Court to conclude that there has been no violation of Article 4 of Protocol No. 4 in the present case. The Court notes the Government’s submission to the effect that, in addition to being afforded genuine and effective access to Spanish territory at the Beni Enzar border crossing point, the applicants also had access to Spanish embassies and consulates where, under Spanish law, anyone could submit a claim for international protection. As the Court has already found that the respondent State provided genuine and effective access to Spanish territory at Beni Enzar at the material time, it is not required to take a position in the present case on whether or to what extent such embassies and consulates would have brought the applicants within the jurisdiction of Spain, if they had sought international protection there, and whether these embassies and consulates would thus also have been capable of providing them with the required level of access. However, in the light of the Government’s reliance on these procedures and the detailed submissions received, the Court will proceed to consider this issue.", "223. In this context the Court notes that under section 38 of Law no. 12/2009, Spanish ambassadors were already required at the material time to arrange for the transfer to Spain of persons who were shown to be in need of protection (see paragraph 34 above). It will therefore examine the protective effect of section 38, which is disputed between the parties.", "224. At the hearing before the Grand Chamber, the applicants referred to a 2016 report of the Asylum Information Database, according to which this section of Law no. 12/2009 “still lack[ed] specific implementing legislation to enable it to become a reality”. However, the Government demonstrated that this allegation was mistaken, pointing out that Article 2 § 2 of the Civil Code provided that Royal Decree no. 203/1995 (cited in paragraph 35 above), laying down implementing arrangements for the previous version of the Law on asylum, was still in force. That decree provided for a specific procedure enabling the ambassadors to establish whether asylum applications submitted at the Spanish embassies and consulates were genuine and, if appropriate, to arrange for the transfer to Spain of the persons concerned, by means of an urgent admission in the event of a high risk in a third country. It also provided that an administrative decision had to be issued within six months and was subject to judicial review. The applicability of this procedure was confirmed by a circular letter of 20 November 2009, sent by the government to all Spanish ambassadors and containing instructions regarding the arrangements for such transfers. This circular letter provides that “if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum ‑ seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry)” (see paragraph 38 above). The applicants’ assertion that section 38 of Law no. 12/2009 was not applicable at the material time owing to the absence of an implementing decree is therefore erroneous.", "225. In this connection the Government also presented specific figures concerning the asylum applications registered in 2014 at Spanish embassies and consulates. According to these figures, which were not contested by the applicants, 1,308 asylum applications were submitted at Spanish embassies and consulates between 2014 and 2018, including 346 in 2014. In that year, eighteen asylum applications were submitted by nationals of Côte d’Ivoire at the Spanish embassies in Abidjan and Bamako. All nine asylum applications submitted at the Spanish embassy in Rabat in those five years were made by Moroccan nationals. Moreover, only four of them were submitted in 2014. The applicants, for their part, did not contest the actual accessibility of the Spanish embassies and consulates, including the Spanish embassy in Rabat and the Spanish consulate in Nador, or the possibility for themselves or other third-country nationals to apply for international protection there.", "226. The Court is aware of the limited powers of the Spanish ambassadors in the application of the special procedure under section 38 of Law no. 12/2009 and of the time-limit of six months for their decision, circumstances which may mean that not all asylum-seekers are provided with immediate protection. However, in the present case these circumstances were not decisive, as in its inadmissibility decision of 7 July 2015 the Court dismissed the applicants’ complaint under Article 3 concerning their fear of ill-treatment in Morocco and declared it manifestly ill-founded. There is therefore no indication that the applicants, had they made use of the procedure under section 38, would have been exposed, pending the outcome of that procedure, to any risk of ill-treatment in Morocco, where they had been living for a considerable time (see paragraphs 22-23 above).", "227. Accordingly, the Court is not persuaded that these additional legal avenues existing at the time of the events were not genuinely and effectively accessible to the applicants. It observes in that connection that the Spanish consulate in Nador is only 13.5 km from Beni Enzar and hence from the location of the storming of the fences on 13 August 2014. The applicants, who stated that they had stayed in the Gurugu camp for two years (in N.D.’s case) and for one year and nine months (in N.T.’s case), could easily have travelled there had they wished to apply for international protection. They did not give any explanation to the Court as to why they did not do so. In particular, they did not even allege that they had been prevented from making use of these possibilities.", "228. Lastly, the applicants likewise did not dispute the genuine and effective possibility of applying for a visa at other Spanish embassies, either in their countries of origin or in one of the countries they had travelled through since 2012. In N.D.’s case, a special treaty between Spain and Mali even afforded an additional possibility of obtaining a special working visa (see paragraph 115 above). At the hearing before the Grand Chamber, the Government gave concrete figures showing that a considerable number of working visas had been issued to citizens of Mali and Côte d’Ivoire in the relevant period. Those statistics were not contested by the applicants either.", "229. However that may be, for the reasons set out above (see paragraphs 213-20), the Court is not convinced that the respondent State did not provide genuine and effective access to procedures for legal entry into Spain, in particular by an application for international protection at the Beni Enzar border post, and that the applicants had cogent reasons based on objective facts for which the respondent State was responsible not to make use of those procedures.", "230. In any event, the Court observes that the applicants’ representatives, both in their written observations and at the Grand Chamber hearing, were unable to indicate the slightest concrete factual or legal ground which, under international or national law, would have precluded the applicants’ removal had they been registered individually (see, mutatis mutandis, Khlaifia and Others, § 253; however, see also the views of the Committee on the Rights of the Child cited at paragraph 68 above).", "231. In the light of these observations, the Court considers that it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group’s large numbers and using force. They did not make use of the existing legal procedures for gaining lawful entry to Spanish territory in accordance with the provisions of the Schengen Borders Code concerning the crossing of the Schengen Area’s external borders (see paragraph 45 above). Consequently, in accordance with its settled case-law, the Court considers that the lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct (see references in paragraph 200 above). Accordingly, there has been no violation of Article 4 of Protocol No. 4.", "232. However, it should be specified that this finding does not call into question the broad consensus within the international community regarding the obligation and necessity for the Contracting States to protect their borders – either their own borders or the external borders of the Schengen Area, as the case may be – in a manner which complies with the Convention guarantees, and in particular with the obligation of non ‑ refoulement. In this regard the Court notes the efforts undertaken by Spain, in response to recent migratory flows at its borders, to increase the number of official border crossing points and enhance effective respect for the right to access them, and thus to render more effective, for the benefit of those in need of protection against refoulement, the possibility of gaining access to the procedures laid down for that purpose.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No. 4", "233. The applicants complained of the lack of an effective remedy with suspensive effect by which to challenge their immediate return to Morocco. They relied on Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4.", "Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "234. The Government observed that the right to an effective domestic remedy was a procedural right which had to be linked to a possible violation of a substantive right under the Convention or the Protocols thereto. In their view, there were no grounds for finding a violation of Article 13 of the Convention.", "235. The applicants, for their part, submitted that they had not had access to a domestic remedy enabling them to complain of the collective nature of the expulsions of 13 August 2014; such a remedy would have to have been available and effective and have suspensive effect.", "236. In their view, the summary and automatic expulsions of which they had been the victims had been in direct breach of the Spanish legislation applicable at the relevant time. The procedure that should have been followed was the removal procedure provided for by section 58(3)(b) of the LOEX and Article 23 of Royal Decree no. 557/2011 (see paragraphs 32 and 36 above), which provides that border police officials who apprehended an alien had to escort him or her to the police station with a view to his or her identification and the possible commencement of a removal procedure. Any expulsion order issued on completion of that stage was subject to a judicial appeal in proceedings in which the person concerned had the right to be assisted free of charge by a lawyer and an interpreter.", "237. The applicants further submitted that, in so far as no formal individual decision had been taken in the present case and in the absence of any identification, information or procedure, they had been deprived of any domestic remedy in respect of their expulsion, including the remedies provided for by domestic and EU law. In their view, this amounted to a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4.", "A. Admissibility", "238. The Court considers that this complaint raises complex issues of law and fact which cannot be determined without an examination of the merits. It follows that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds and that no other preliminary objection was raised by the Government in that regard. It must therefore be declared admissible.", "B. Merits", "1. The Chamber judgment", "239. The Chamber considered that this complaint was “arguable” for the purposes of Article 13 of the Convention (see Hirsi Jamaa and Others, cited above, § 201) and that the applicants had been deprived of any remedy enabling them to lodge their complaint under Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before being sent back. The Chamber therefore held that there had been a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention.", "2. The Court’s assessment", "240. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief.", "241. In so far as the applicants complained of the lack of an effective remedy by which to challenge their expulsion on the grounds of its allegedly collective nature, the Court notes that, although Spanish law provided a possibility of appeal against removal orders at the border (see paragraphs 32 et seq. above), the applicants themselves were also required to abide by the rules for submitting such an appeal against their removal.", "242. As it stated previously in examining the complaint under Article 4 of Protocol No. 4 (see paragraph 231 above), the Court considers that the applicants placed themselves in an unlawful situation by deliberately attempting to enter Spain by crossing the Melilla border protection structures on 13 August 2014 as part of a large group and at an unauthorised location. They thus chose not to use the legal procedures which existed in order to enter Spanish territory lawfully, thereby failing to abide by the relevant provisions of the Schengen Borders Code regarding the crossing of the external borders of the Schengen Area (see paragraph 45 above) and the domestic legislation on the subject. In so far as the Court has found that the lack of an individualised procedure for their removal was the consequence of the applicants’ own conduct in attempting to gain unauthorised entry at Melilla (see paragraph 231 above), it cannot hold the respondent State responsible for not making available there a legal remedy against that same removal.", "243. It follows that the lack of a remedy in respect of the applicants’ removal does not in itself constitute a violation of Article 13 of the Convention, in that the applicants’ complaint regarding the risks they were liable to face in the destination country was dismissed at the outset of the procedure.", "244. Accordingly, there has been no violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Events of 17 November 2014", "5. On 17 November 2014 at 1.30 a.m. the Slovak Border and Foreigners Police (“the police”) apprehended, near the Ukrainian border, the nineteen applicants, together with other Afghan nationals. The applicants were found hidden in a truck whose driver fled after the police patrol had followed the vehicle which had not reacted to warning signs; none of them were carrying identity documents.", "6. According to the Government, thirty-two persons, including the applicants, were subsequently taken to the border police station in Petrovce (“the police station”) for the purposes of an identity check. Ten police officers were assigned to record their statements and document their cases; other officers were involved in undertaking certain actions around the site where the applicants had been apprehended and in providing transfers to the police station. A Persian-language translator was present from 9 a.m. for twenty-four hours and assisted the police in their dealings with the applicants. As to the other thirteen persons (the persons other than the nineteen applicants) brought to the police station, one of them was taken for a medical examination; the remaining twelve (five men, five women and two children) – who had asked for asylum – were transferred to a reception centre for asylum seekers on 18 November 2014 at 2 a.m. The Government provided a copy of the note on that transfer, which contained the names of the persons concerned.", "7. The Government submitted, in respect of the applicants, the following documents, dated 17 November 2014, most of which were signed by the applicants and the interpreter:", "- official notes, according to which the applicants had been brought to the police station for the purposes of establishing their identity;", "- transcripts of oral explanations provided by the applicants concerning their irregular border-crossing; according to those transcripts, all the applicants had answered in the negative when asked by the police whether they had suffered persecution in their country of origin and whether they wished to seek asylum in Slovakia, stating that they had left Afghanistan for economic reasons and wanted to go to Germany;", "- documents whereby the applicants had been informed of the commencement of the proceedings on their administrative expulsion and of their right to legal aid;", "- transcripts of the interviews conducted with the applicants in their capacity as parties to the expulsion proceedings, whereby they had declared that they had not suffered any kind of persecution in Afghanistan nor been sentenced to death there;", "- documents whereby each applicant had been informed of the possibility to comment on the contents of his respective case file and to adduce evidence, neither of which possibilities the applicants had used;", "- police decisions, rendered individually in respect of each applicant but with the same wording, on the applicants ’ administrative expulsion to Ukraine on the basis of sections 77 § 1 and 82 § 1 (a) of the Aliens Act (Law no. 404/2011 Coll., as amended), including a three-year ban on re-entering Slovak territory under Article 82 § 3 (b); pursuant to Article 83 § 2 (a) of the Aliens Act, the applicants had not been given any time-limit in respect of their voluntary departure, and the suspensive effect of any possible appeal had been excluded on the grounds of urgent public interest, pursuant to section 55(2) of the Administrative Proceedings Act (Law no. 71/1967 Coll., as amended); according to the instruction at the end of each decision regarding available remedies, an appeal against a decision could be lodged within fifteen days of the respective applicant being notified of that decision, and any subsequent decision was reviewable by a court; according to the note on the last page of that instruction, the decisions in question had been handed over to the applicants, as affirmed by the applicants ’ and the interpreter ’ s signatures;", "- documents whereby the applicants had been informed that their personal data would be registered in the information systems of the Slovak Ministry of Interior, in the EURODAC system, and in the Schengen information system;", "- documents whereby the applicants had been informed of the possibility for them to ask the International Organization for Migration to be voluntarily returned to their home country;", "- requests for the readmission of the applicants to Ukraine, issued by the police in a simplified procedure; documents certifying that the applicants had been returned to the Ukrainian authorities at 10.30 p.m. on 17 November 2014; and official notes on the execution of the expulsion decisions.", "8. According to the above documents, all the interviews lasted exactly ten minutes and were conducted by two police officers in the presence of the interpreter. The times of some interviews, as given in the documents, overlapped – for example, between 9.20 a.m. and 9.30 a.m. two police officers and the same interpreter were recorded as being present at three different interviews. The questions were standardised, and most of the applicants ’ recorded answers were identical; the only difference was in the respective amounts of money the applicants were recorded as having in their possession.", "9. Before the Court, the applicants submitted that the police had not properly identified all of them, that only a few of them had been interviewed, and that they had been made to sign documents of unknown content in the Slovak language, having been told that those documents related to their asylum requests and that they would be transferred to a reception centre for asylum seekers. They also maintained that they had been given no information regarding the asylum procedure in Slovakia; they had nevertheless approached police officers with requests for asylum and for legal assistance, but the police had ignored them – even though they had transferred the remaining twelve persons to an establishment for asylum seekers. Moreover, the interpreter was present for a few hours only, as affirmed by the transcripts of the interviews, according to which all those interviews had taken place between 9.10 a.m. and 12.30 p.m.", "10. It appears from the expulsion decisions of 17 November 2014 that the police took into account the economic situation of the applicants and the absence of any family ties in Slovakia, and that they examined the existence of any obstacles to the administrative expulsion, within the meaning of section 81 of the Aliens Act and with regard to Articles 3 and 8 of the Convention. In that the police also based their standpoint on the statements made by the applicants, who had not alleged any interference with their private and family life in Ukraine or any risk of torture, inhuman or degrading treatment or punishment if they were returned there. The police furthermore emphasised that the applicants were not at risk of any forced return to their country of origin (which had been confirmed at a bilateral meeting at the Slovak/Ukraine border of persons with the relevant authority), and that Ukraine had ratified the Convention.", "11. On the basis of the above decisions on their administrative expulsion, the applicants were expelled to Ukraine on the same day (17 November 2014) at 10.30 p.m. They maintained that they had not been given copies of the decisions while they had still been on Slovak territory and that they had obtained copies only later by authorising their current legal representative to inspect their respective case files.", "B. Developments after the applicants ’ expulsion to Ukraine", "12. In Ukraine, the applicants were placed in the temporary detention centre in the town of Chop.", "13. The file contains a copy of an email string between employees of an NGO in Ukraine who from 18 November 2014 onwards were allowed to talk to the applicants and lawyers from the Slovak branch of the Human Rights League, which resulted in the lodging of the appeals detailed. It appears from the email string that the applicants had been stating, since 18 November 2014, that they had asked for asylum in Slovakia and did not understand why they had been removed from Slovakia (unlike the other twelve migrants who had been arrested with the applicants); they also expressed the view that the interpreter had provided an inaccurate translation.", "14. On 25 November 2014, the first four applicants ( Zabi Asady, Farid Ahmad Ahmadi, Ali Ahmadi, Sher Badov Shinwari ) instructed a lawyer and lodged an appeal against the administrative expulsion decisions against them, alleging a violation of their procedural rights and a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4. They maintained that only one person from their group had been questioned by the police and that the others had merely been handed documents in Slovak for them to sign, having been told that they would be taken to a reception centre for asylum seekers; thus, the obstacles to their expulsion and the risk of their indirect refoulement to Afghanistan where they feared prosecution had not been examined. Furthermore, their requests for asylum had been ignored by the Slovak police, they had not had access to any legal aid, and they had been expelled without having been first served with the relevant decision and without having had an effective remedy at their disposal. In their view, the situation complained of had thus amounted to collective expulsion, which was prohibited by Article 4 of Protocol No. 4.", "15. On 10 and 25 December 2014, the applicants were transferred to another detention centre (in the municipality of Zhuravychi ).", "16. On 7 January 2015, the Slovak border police directorate dismissed their appeals and confirmed the impugned decisions of 17 November 2014. Referring to the contents of the file, the border police directorate pointed out that interpretation into Persian had been provided throughout the entire proceedings on expulsion; moreover, the applicants had been duly informed of their rights, had signed the relevant documents and had expressly stated that they did not want to ask for asylum. Furthermore, individual decisions had been delivered in respect of all the applicants and there had been no obstacles to their expulsion to Ukraine.", "C. The applicants ’ whereabouts and their contacts with their legal representative", "17. According to their legal representative, some applicants returned to Afghanistan, where they live under unstable conditions due to the deteriorating security situation in the country, which does not always allow them access to means of communication. Others are asylum seekers in Europe, with only occasional access to the Internet or telephone. In the light of those specific circumstances, their legal representative has created a Facebook group with a view to staying in contact with the applicants.", "18. In observations dated 10 May 2017, the applicants ’ legal representative provided the Court with the following information concerning the whereabouts of the applicants and her contacts with them:", "- Mr Zabi Asady currently resides in Sweden and maintains indirect contact with the applicants ’ legal representative via another applicant, Mr Sher Badov Shinwari. The legal representative provided the Court with a link to his Facebook account. He is also a member of a Facebook group dedicated to the instant case.", "- Mr Farid Ahmad Ahmadi currently resides in Vienna, Austria. The legal representative provided a link to his Facebook account.", "- Mr Ali Ahmadi ’ s place of residence is currently unknown.", "- Mr Sher Badov Shinwari currently resides in Austria as an asylum seeker and maintains direct contact with the legal representative via Facebook. He provided a statement regarding his just satisfaction claim.", "- Mr Abdul Hamid Nasri currently resides in Denmark as an asylum seeker and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.", "- Mr Mohammad Azam currently resides in Kabul, Afghanistan and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.", "- Mr Samiuddin Faizy currently resides in France as an asylum seeker and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.", "- Mr Mohammad Shakib currently resides in Odessa, Ukraine and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.", "- Mr Nasir Ahangarzada ’ s place of residence is currently unknown.", "- Mr Zabiullah Zazai currently resides in Mazar -e Sharif, Afghanistan, and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.", "- Mr Ali Ahmad Ali Zada ’ s place of residence is currently unknown.", "- Mr Abobaker Jamil currently resides in Afghanistan and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.", "- Mr Salman Faqiri and his brother Mr Sohrab Faqiri are no longer interested in pursuing the proceedings and wish to strike their applications out of the Court ’ s list of cases.", "- Mr Mohamad Farid Ekhlas ’ s place of residence is currently unknown.", "- Mr Edris Yusufi ’ s place of residence is currently unknown.", "- Mr Bezhan Rahimi currently resides in Germany. The legal representative provided a link to his Facebook account.", "- Mr Miramza Sidiqi currently resides in Berlin, Germany. His legal representative provided a link to his Facebook account.", "- Mr Rahim Rahimi currently resides in Zurich, Switzerland. He maintains indirect contact with the legal representative via a Facebook group dedicated to the instant case; the legal representative provided a link to his Facebook account." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Police Corps Act 1993 (Law no. 171/1993 Coll., as amended)", "19. Section 17(1) authorises the police to seek explanations, where required, from anyone who can contribute to the clarification of facts that are of importance in uncovering a misdemeanour or administrative offence and the perpetrator thereof, or facts of importance in tracking down missing or wanted persons or items.", "20. Under sections 18(3) and (4), the police can take a person to a police station for the purposes of verifying his or her identity if that person is unable to credibly prove his or her name and surname, date of birth and place of residence.", "B. Asylum Act (Law no. 480/2002 Coll., as amended)", "21. Under section 3(1), asylum proceedings are launched by means of a declaration by the individual concerned to the relevant police department that he or she is applying for asylum or subsidiary protection on the territory of the Slovak Republic. Section 3(2)(b) provides that if a foreigner requests asylum after entering the territory of the Slovak Republic, the authority authorised to receive the asylum request is the police office established within the asylum facility. Under section 3(8), if a foreigner applies for asylum at a police office that does not have authority to receive an asylum request, that police office is obliged to inform the applicant of the relevant police office and provide him or her with a travel document valid for twenty-four hours; alternatively, it may decide that he or she should be detained.", "C. Aliens Act (Law no. 404/2011 Coll., as amended)", "22. Under section 77 § 2, the collective expulsion of foreigners on the basis of one single decision is inadmissible.", "23. Section 81 enumerates the obstacles to administrative expulsion. Under section 81(1), it is not possible to expel an alien to a country where his life would be at risk on the grounds of race, nationality, religion, or association with a social group or political conviction, or where he would be at risk of torture or of cruel, inhuman or degrading treatment or punishment. It is also not possible to expel an alien to a country that has imposed on him the death penalty or where he can be expected to receive such a sentence in pending criminal proceedings.", "Under section 81(2), an alien cannot be expelled to a country where his liberty would be at risk on the grounds of race, nationality, religion, or association with a social group or political conviction; this does not apply if, by his behaviour, the alien puts national security at risk or if he has been convicted of a criminal offence and represents a danger to Slovakia.", "Under section 81(4), an alien cannot be expelled to a country where he would be at risk of a forced return to [his or her country of origin], as described in section 81(1) and (2).", "24. Section 82(1 )( a) provides that the border police can authorise the administrative expulsion of a third-country national if he or she has irregularly crossed the external border, or if he or she intentionally avoids or refuses to undergo border control checks when crossing the external border.", "25. Under section 83(1) and (2), a third-country national in respect of whom an administrative expulsion decision has been rendered is obliged to leave the territory within the period allowed for voluntary departure set out in the expulsion decision (which should fall between seven and thirty days of that decision gaining force). If it is deemed likely that the person in question might escape or otherwise obstruct or hinder the exercise of the administrative expulsion – and in particular if the person ’ s identity cannot be verified, or if the third-country national threatens the State ’ s security, public order, public health or the rights and freedoms of others – the police need not stipulate any deadline in respect of voluntary departure.", "D. Administrative Proceedings Act (Law no. 71/1967 Coll., as amended)", "26. An appeal can be lodged against an administrative expulsion decision within fifteen days of the person concerned being notified thereof (sections 53 and 54(2)).", "27. Under section 55(2), an appeal lodged against an administrative decision before the expiry of the relevant time-limit has suspensive effect, unless provided otherwise. The administrative authority may exclude the suspensive effect only if the urgent public interest so requires, or if there is a risk that by suspending the enforcement of a decision a party to the proceedings or a third person might suffer irreparable damage.", "III. Relevant international documents", "28. The relevant international documents are listed in Sharifi and Others v. Italy and Greece (no. 16643/09, §§ 51-82, 21 October 2014) and in N.D. and N.T. v. Spain ( [GC], nos. 8675/15 and 8697/15, §§ 41-67).", "29. In a 124-page report published in December 2010 entitled “ Buffeted in the Borderland. The Treatment of Asylum Seekers and Migrants in Ukraine ”, the NGO Human Rights Watch described the findings of its research into the experience of migrants and asylum seekers who had been returned to Ukraine from Hungary and Slovakia. The report states that “according to the bilateral agreements, migrants caught entering Poland, Slovakia and Hungary without permission can be summarily returned if caught within 48 hours of a crossing. The launching of an appeal in Slovakia and Hungary does not suspend the return and returnees do not have access to minimal information on arrest and return. In practice, Human Rights Watch found that migrants were often tricked into believing they would not be returned, were asked to sign papers they did not understand, and were not always given an opportunity to contact a lawyer, NGOs or UNHCR.” Specifically with regard to Slovakia, Human Rights Watch stated that “the most common complaint heard from migrants who had been returned from Slovakia was that their asylum claims were ignored and that they were treated in summary fashion [and] quickly sent back within hours of apprehension in Slovakia, with little opportunity to make any claim to remain.", "THE LAW", "I. PRELIMINARY ISSUES RAISED BY THE GOVERNMENT", "A. The applicants ’ whereabouts and loss of contact with their legal representative", "1. Parties ’ arguments", "30. The Government maintained that from the very beginning the applicants ’ legal representative had been able to communicate with them only through staff of the NGO in Ukraine, and that the Slovak branch of the Human Rights League had exerted extreme pressure on the applicants in order to secure their consent for it to lodge the application with the Court. While it was true that the applicants had authorised a lawyer from that NGO to represent them before the Court, they had not contacted her thereafter to inform her of their whereabouts or to provide her with a means of contacting them, which indicated that they had lost interest in the case. In additional observations, the Government maintained that the applicants ’ representative was not able to contact them in a standard manner, that the elements produced by the applicants ’ representative were of no probative value and that messages sent within their Facebook group could not be accepted in the proceedings before the Court; moreover, the whereabouts of applicants nos. 3, 9, 11, 15 and 16 still remained unknown (see paragraph 18 above).", "31. In such circumstances, given that the fact that the relevant authorisation forms have been correctly completed does not in itself justify pursuing the examination of the case (see Ramzy v. the Netherlands, no. 25424/05, § 64, 20 July 2010), the Government considered that the application should be struck out of the Court ’ s list of cases, in accordance with Article 37 § 1 of the Convention.", "32. In reply, the applicants ’ representative submitted information regarding the applicants ’ current whereabouts (including, in respect of some of them, copies of their identity documents and links to their respective Facebook accounts) and their claims for just satisfaction (see paragraph 18 above). She noted that she was in contact with most of them via Facebook, within a dedicated group that she had created. She also pointed to the applicants ’ vulnerable situation, their limited access to means of communication and – in some cases – their poor command of English, which may have resulted in delays to their replies to her messages or in a need to rely on others to facilitate communication.", "33. Furthermore, the applicants ’ representative informed the Court that the thirteenth and fourteenth applicants, Mr Salman Faqiri and his brother, Mr Sohrab Faqiri, were no longer interested in pursuing the proceedings and wished their applications to be struck out of the Court ’ s list of cases.", "2. The Court ’ s assessment", "34. The Court considers it necessary first to examine the criteria set forth in Article 37 of the Convention, which reads as follows:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.", "2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”", "35. On the one hand, the Court reiterates that an applicant ’ s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant ’ s particular circumstances and to confirm the applicant ’ s continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium ([GC], no. 60125/11, § 35, 17 November 2016, with further references; N.D. and N.T. v. Spain [GC], cited above, § 72 ).", "36. On the other hand, in cases concerning a context similar to that of the instant, the Court has held that it cannot ignore the generally precarious conditions of asylum seekers and other events that may temporarily prevent communication between a legal representative and applicants (see Sharifi and Others v. Italy and Greece (no. 16643/09, § 131, 21 October 2014 ). Thus, the Court has accepted contact between a legal representative and applicants that took place via third persons if such contact was regular and substantiated by relevant documents (ibid. , § 130). However, the Court has struck out applications for lack of contact between the applicants and their legal representative where information about the applicants ’ whereabouts or the circumstances of the contact appeared insufficient, contradictory or unsubstantiated ( ibid. , §§ 129, 133). By way of example, the Court has considered proof of contact to be unsubstantiated when applicants or their legal representative have failed to provide any document proving their legal status, or when they have provided only a link to the Facebook account of the applicant without any further explanation (ibid. , § 129).", "37. Turning to the facts of the present case, the Court observes that the applicants ’ legal representative has never met the applicants in person and that contact between the applicants and their representative was initially facilitated by lawyers visiting the detention centre in Ukraine at which they were being held. The latter secured the applicants ’ signatures on the authorisation forms and forwarded them to the legal representative in Slovakia, who then lodged the application with the Court. The Court notes that the authenticity of those authorisation forms has not been challenged by the Government and that nothing in the file raises any concerns about their validity.", "38. While it is true that the applicants ’ representative thus has power to represent them throughout the entire proceedings before the Court, the Court must nevertheless examine whether the subsequent contacts between the applicants and their representatives justify pursuing the examination of the case. In exercising such an examination, the Court does not lose sight of the complicated situation both of those applicants who seek asylum in Europe and those applicants who have returned to Afghanistan. It is therefore ready to accept that they may not be able to communicate with their legal representative regularly and via traditional means ( ibid., mutatis mutandis, § 131,).", "39. In this context, the Court observes, firstly, that the thirteenth and fourteenth applicants expressly stated that they no longer wished to pursue the proceedings. In so far as it concerns these two applicants, the application is to be struck out of the list of cases, pursuant to Article 37 § 1 (a) of the Convention.", "40. The Court notes, secondly, that applicants nos. 3, 9, 11, 15 and 16, whose whereabouts are unknown, have not attempted to contact their legal representative or the Court, and neither have they demonstrated in any way their interest in continuing the case.", "With regard to applicants nos. 1, 2, 17, 18 and 19, the legal representative provided the Court only with the name of their country of residence and a link to their respective Facebook accounts; with regard to applicants nos. 1 and 19, the representative explained that they were members of the above-mentioned dedicated Facebook group and that they had been in indirect contact with her via third persons (see paragraph 18 above). The Court observes, however, that the sole fact that a Facebook account exists under the applicant ’ s name or a similar name does not necessarily prove that there has been any real contact between the applicant and his or her representative through the means provided by that account, especially if no extract of any such conversation has been submitted. In the Court ’ s view, such information is insufficient to establish that the above applicants did indeed maintain contact with their legal representative ( ibid., §§ 129 and 133) and to conclude that the latter could meaningfully continue the proceedings before the Court in respect of those applicants.", "Having regard to the foregoing and in accordance with Article 37 § 1 (c) of the Convention, the Court considers that it is no longer justified to continue the examination of the application as regards applicants nos. 1, 2, 3, 9, 11, 15, 16, 17, 18 and 19. It points out that the complaints initially lodged by those applicants are identical to those submitted by the remaining applicants, in respect of which it will express its opinion below. Given the circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols that, under Article 37 § 1 in fine, would require the continuation of the examination of the applications of the above-mentioned ten applicants.", "41. Lastly, with regard to applicants nos. 4, 5, 6, 7, 8, 10 and 12, the legal representative informed the Court of their respective current places of residence and their residency status; most of them also provided copies of their personal documents. It furthermore appears from the extracts from the Facebook messages exchanged between them and their representative submitted by the legal representative that they have specified just satisfaction claims; applicant no. 10 also provided his bank account details. The Court accepts that such information is sufficient to establish that the above applicants have maintained contact with their legal representative and that they have an interest in pursuing the case before the Court. The Court therefore rejects the Government ’ s objection as to those seven applicants.", "42. In conclusion, the Court decides to strike the case out of the list in so far as it concerns applicants nos. 1, 2, 3, 9, 11, 13, 14, 15, 16, 17, 18 and 19, and to pursue the examination of the remainder of the application.", "B. Exhaustion of domestic remedies", "43. The Government pointed out that only the first four applicants had lodged appeals against the decisions on administrative expulsion. None of the other applicants had used this remedy, despite having been detained in the same centre at the time that applicants nos. 1-4 had signed the authorisation forms for the purpose of the appeal proceedings, and despite having authorised Ms Z. Števulová to represent them before the Court.", "44. The applicants replied that, as can be seen from her email communication with the lawyers in Ukraine, their Slovak legal representative was prepared to lodge appeals on behalf of all of them. However, the Ukrainian lawyers were able to meet only four of them in the Chop detention centre before the expiration of the fifteen-day time-limit set for lodging an appeal (the deadline being 2 December 2014), and they had not themselves been in a position to contact a Slovak lawyer. They had all been able to meet a lawyer only in the detention centre in Zhuravychi between 12 December 2014 and 5 January 2015, when it was no longer possible to lodge an appeal; thus, they could then sign only the authorisation forms for the proceedings before the Court. In any event, the applicants contested the effectiveness and accessibility of the impugned remedy since, firstly, they had received neither a copy of the decision in question nor a translation thereof and, secondly, any ex post remedy would have had no practical effect on their expulsion, and nor would it have offered them a possibility to re-enter the country.", "45. The Court notes that the applicants nos. 5, 6, 7, 8, 10 and 12 did not lodge an appeal against the decisions on their expulsion. However, having regard to the contents of the police directorate ’ s decisions of 7 January 2015 dismissing the appeals of the applicants nos. 1 to 4, there is nothing to suggest that, had the former applicants also filed an appeal, the decisions in their cases would have been any different from those in the cases of the latter applicants. In these circumstances, and taking into account the difficulties faced by the applicants to access a lawyer after their removal to Ukraine, the Court is of the view that those applicants were not required to exhaust the remedy referred to by the Government. The Government ’ s preliminary objection must therefore be dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION", "46. The applicants 4, 5, 6, 7, 8, 10 and 12 submitted that they had been victims of a collective expulsion.", "They relied on Article 4 of Protocol No. 4 to the Convention, which reads as follows:", "“Collective expulsion of aliens is prohibited.”", "A. Admissibility", "47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "48. The applicants complained that their expulsion to Ukraine had been collective in nature and, in particular, that the State authorities had not carried out an individual assessment and examination of their cases, since all the expulsion decisions had had the same wording. They had had no access to information, proper interpretation, legal aid or the assistance of UNHCR. In addition, they claimed that either their asylum claims had been ignored or the interpreter had not translated them, and that they had thus been denied access to the asylum procedure.", "49. The applicants were of the view that they had been dealt with as a group, not as individuals, and that the transcripts of their interviews indeed showed that they had not been interviewed separately since the official times of the respective interviews had overlapped in several cases, even though only one interpreter had been present. Moreover, the fact that the interpreter had been there for only a few hours meant that it had not been possible to properly examine each individual case. Furthermore, the applicants pointed out that they must have been interviewed under extreme time constraints, since within ten minutes they were supposed to have been briefed about the procedure and their rights and then interviewed – all allowing extra time for interpretation. In their view, the police had been in a position to invest more time and effort into examining each individual case – specifically, the police officers should have asked open questions (that is to say questions not requiring simple “yes” or “no” answers) about the reasons for the applicants leaving their home country and the factors preventing their return, and they should have made more effort to encourage the applicants to enlarge upon their answers.", "50. As to the Government ’ s argument concerning possible errors in noting the starting and ending times of the interviews and the length of their duration, the applicants asserted that they should be given the benefit of the doubt because they were in a vulnerable position and unable to collect evidence regarding the exact course of events. It was indeed the police who had been in control of the recording of their interviews and the documentation thereof, and it had been the police ’ s obligation to make precise recordings of those interviews; therefore, the transcriptions of those interviews should be relied on.", "51. Thus the applicants claimed that they had not been allowed to actively participate in the procedure and had not been offered an individual and effective opportunity to put forward individualised details and arguments against their expulsion, as required by the Court ’ s case-law (see Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts), and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 177 and 184, ECHR 2012).", "52. Concerning the Government ’ s argument regarding the police ’ s “longstanding experience” of interviewing illegal migrants, the applicants considered that this was a further indication of collective treatment. The statements of the police only confirmed the tendency to generalise as regards the behaviour of migrants apprehended at the Slovak-Ukrainian border, regardless of their individual circumstances. The applicants also emphasised in that regard that they had been complaining about their collective expulsion ever since their first meeting with the Ukrainian lawyers.", "53. Lastly, the applicants argued that the cases (referred to by the Government) of Sultani (cited above) and M.A. v. Cyprus (no. 41872/10, ECHR 2013 (extracts) – see paragraph 56 below) substantially differed from the present case. In M.A, the asylum claims of all the applicants had been dealt with on an individual basis over a period of more than five years and their appeals had been individually examined. By contrast, in the present case the applicants had been physically expelled from Slovak territory within twenty-four hours of their arrival, their asylum applications had been ignored and their arguments against expulsion had not been addressed. The fact that twelve other persons had been channelled into the asylum procedure did not prove, in the applicants ’ view, that their cases had been examined individually or that they had not been denied access to the asylum procedure.", "(b) The Government", "54. The Government referred to the transcripts of the interviews and submitted that the applicants had been interviewed separately and with the help of an interpreter, which was attested to by their signatures on those transcripts. The applicants had each been individually familiarised with their respective case files and the reasons for their expulsion and the ban on their re-entering Slovakia, and each of them had been handed a copy of the expulsion decision, their receipt of which they had confirmed by signing it in the presence of the interpreter. In that regard, the Government submitted a fee invoice from the interpreter, according to which he had been present at the police station from 9 a.m. on 17 November 2014 until 9 a.m. on 18 November 2014.", "55. The Government conceded that written errors could have occurred in the “course of recording the interviews” because those interviews had been conducted during the night and early morning hours. As to the identical wording of the transcripts, they submitted that in the longstanding experience of the police, irregular migrants – especially those arriving in Slovakia in an organised fashion with the help of smugglers – tended during interviews to cite identical facts and motives in respect of their irregular border-crossing, and they sometimes changed their statements when meeting a non-governmental organisation after readmission to Ukraine. In the present case, the identical wording of the applicants ’ statements would have been a consequence of them having travelled as a group; it did not constitute proof of a collective approach on the part of the police, but was rather the reason for the similar wording of the expulsion decisions. Indeed, the fact that the transcripts differed in respect of the amounts of money cited as being possessed by the applicants showed that the police had treated them individually.", "56. According to the Government, the applicants had been duly instructed regarding the possibility to request legal aid and had had the opportunity to claim asylum during their stay at the police station. They pointed out that twelve Afghan members from the group who had requested asylum had been transported to a refugee camp, rather than being returned to Ukraine. That proved that the applicants had not been prevented from accessing the asylum procedure (see, mutatis mutandis, M. A. v. Cyprus, cited above, §§ 252-255). Lastly, the Government emphasised that, after being asked clear and comprehensible questions by the police officers, none of the applicants had mentioned having been subjected to any form of persecution in their home country, so there had been no need to put further questions to them. Neither had the appeals lodged by four of the applicants contained any allegation of persecution.", "2. The Court ’ s assessment", "(a) Principles established in the Court ’ s case-law", "57. The Court points to its case-law concerning Article 4 of Protocol No. 4, as set out, with regard to migrants and asylum-seekers, in the judgments in Hirsi Jamaa and Others, Sharifi and Others, and Khlaifia and Others (all cited above). According to that case-law, an expulsion is deemed to be “collective” for the purposes of Article 4 of Protocol No. 4 if it compels aliens, as a group, to leave a country, “except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Khlaifia and Others, cited above, §§ 237 et seq.; Georgia v. Russia (I), cited above, § 167; Andric v. Sweden ( dec. ), no. 45917/99, 23 February 1999; Davydov v. Estonia ( dec. ), no. 16387/03, 31 May 2005; Sultani v. France, no. 45223/05, § 81, ECHR 2007-IV (extracts); and Ghulami v. France ( dec. ), no. 45302/05, 7 April 2009). The fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion, if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others, cited above, § 239; see also M.A. v. Cyprus, no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248; N.D. and N.T. v. Spain, cited above, §§ 193 and 199).", "58. Article 4 of Protocol No. 4 is aimed at maintaining the possibility, for each of the aliens concerned, to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of his or her return and, for the authorities, to avoid exposing anyone who may have an arguable claim to that effect to such a risk (see N.D. and N.T. v. Spain, cited above, § 198). The purpose of Article 4 of Protocol No. 4 is thus to prevent States from removing a number of aliens without examining their personal circumstances and therefore without enabling those aliens to put forward their arguments against the measure taken by the relevant authority in question (see Hirsi Jamaa and Others, cited above, § 177, and Sharifi and Others, cited above, § 210). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of the case and to verify whether the removal decisions took into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183; N.D. and N.T. v. Spain, cited above, § 197).", "59. It should be stressed at the outset that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Paposhvili, cited above, § 172; Hirsi Jamaa and Others, cited above, § 113; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI; and N. v. the United Kingdom [GC], no. 26565/05, § 30, ECHR 2008). The Court also reiterates the right of States to establish their own immigration policies, potentially in the context of bilateral cooperation or in accordance with their obligations stemming from membership of the European Union (see Georgia v. Russia (I), cited above, § 177; Sharifi and Others, cited above, § 224; and Khlaifia and Others, cited above, § 241). Furthermore, the Court has previously emphasised the challenges facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East (see M.S.S. v. Belgium and Greece, cited above, § 223; Hirsi Jamaa and Others, cited above, §§ 122 and 176; and Khlaifia and Others, cited above, § 241). Nevertheless, the Court has also stressed that the problems which States may encounter in managing migratory flows or in the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179; N.D. and N.T. v. Spain, cited above, § 170).", "(b) Application of those principles in the present case", "60. In the present case, it is not disputed that the applicants were expelled after they had irregularly entered Slovak territory and that they were returned to Ukraine; this clearly amounts to an “expulsion” within the meaning of Article 4 of Protocol No. 4 as interpreted by the Court (see, most recently, N.D. and N.T. v. Spain, cited above, §§ 166-191). The Court is thus called to ascertain whether the applicants ’ expulsion was “collective” in nature.", "61. The Court observes that the applicants have not disputed the fact that, after being brought to the police station for the purposes of their identification, they underwent interviews, following which a separate administrative decision was made in respect of each of them. It is true, as the applicants pointed out, that the expulsion decisions were drafted in almost identical terms. However, according to the case-law cited in paragraph 57, this fact cannot in itself be decisive. In the Court ’ s view, the relatively simple and standardised nature of the expulsion orders can be explained by the fact that the transcripts of the applicants ’ interviews do not contain any statement regarding any possible ill-treatment in the event of their readmission to Ukraine or regarding the existence of any other legal obstacles to their expulsion. It is therefore not unreasonable for those orders to have been justified merely by the fact that the applicants were third-country nationals who had committed an administrative offence by unlawfully crossing the Slovak border, and by the absence of any of the situations provided in section 81 of the Aliens Act (see paragraph 10 above).", "62. The Court notes that, although the applicants had crossed the Slovak border in an unauthorised manner, they were intercepted in the territory of Slovakia and the State provided them access to means of legal entry through the appropriate border procedure (see, conversely, N.D. and N.T. v. Spain, cited above). It thus remains to be established whether the applicants were afforded, prior to the adoption of the impugned expulsion orders, an effective possibility of submitting arguments against their removal and whether there were sufficient guarantees demonstrating that their personal circumstances had been genuinely and individually taken into account.", "63. In this regard, the Court observes that the parties are not in agreement as to the conditions of the interviews conducted in the present case; they also disagree as to whether the applicants actually declared their intention to request asylum. The Government submitted that genuine individualised interviews had been carried out in the presence of an interpreter; the contents of those interviews had then been recorded in the transcripts thereof, which had been signed by the applicants. The applicants alleged, by contrast, that they had not been interviewed separately, that the interviews had been carried out under extreme time pressure and that several of those interviews had overlapped, and that they had been made to sign documents whose contents had been unknown to them.", "64. The Court notes that the file contains transcripts of oral explanations provided by the applicants concerning their irregular border-crossing, as well as transcripts of individual interviews conducted with them in their capacity as parties to the expulsion proceedings; those documents were signed by the applicants and the interpreter (see paragraph 7 above). According to these transcripts, all the interviews were carried out on 17 November 2014 between 9.10 and 12.30, lasted exactly ten minutes and were conducted by two police officers in the presence of the interpreter (see paragraph 8 above). It is true that the official times of some interviews overlapped, which the Government explained by the fact that there could have been some errors in the recording of those interviews owing to the fact that the interviews had taken place in the night and early morning hours. Even if, in the Court ’ s view, such an explanation does not appear entirely plausible, given that the interviews took place between 9.10 and 12.30, it is not in itself sufficient to justify the applicants ’ view that the interviews were not conducted on an individual basis. Moreover, the Court has already held that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances (see paragraph 57 in fine above).", "65. Indeed, what matters is whether the applicants had a genuine and effective opportunity to submit arguments against their expulsion (see, among other authorities, Sultani, cited above, § 81, and Hirsi Jamaa and Others, cited above, § 184).", "66. In this connection, the Court is ready to accept the fact that the applicants were asked standardised questions, in so far as those questions were aimed at establishing the factors that had led the applicants to leave their country of origin and the circumstances of their entry onto Slovak territory. While the applicants ’ answers were very similar, it may be presumed that the details of their journey might have been similar as well, since they had been travelling as a group; the recordings also differ in the amount of money that the applicants declared as being in their possession, which rather points to an individualised approach. Moreover, the fact that the interviews were rather short may be a consequence of the applicants not stating anything that would require a more thorough examination.", "67. Furthermore, the applicants have not put forward any arguments to refute their statements, as recorded in the transcripts of their interviews. According to those statements, they had not suffered any persecution in their country of origin, and nor had the death penalty been imposed on them there; rather, they had left Afghanistan for economic reasons and wished to go on to Germany and thus did not wish to seek asylum in Slovakia (see paragraph 7 above). They have thus not asserted any risk of being subjected to a treatment which is incompatible with the Convention (see paragraph 58 above). It is to be noted that the existence of any possible obstacles (under Articles 3 and 8 of the Convention) to the administrative expulsion of the applicants was nevertheless subject to examination by the police authority, and that regard was paid to the fact that the applicants did not risk any forced return to their country (see paragraph 10 above).", "68. Moreover, the Court does not have any proof that the transcripts of the applicants ’ interviews did not correspond to the applicants ’ actual statements, or that those statements were wrongly translated (as alleged by the applicants), nor does it have any reason to believe that the applicants ’ requests for asylum were ignored by the police. It is to be noted, on the other hand, that no personal reasons supporting the applicants ’ requests for asylum were mentioned either in their conversations with the Ukrainian lawyer (see paragraph 13 above) or in their appeals against the expulsion orders (see paragraph 14 above).", "69. It is significant that – as stated and documented by the Government (see paragraph 6 in fine above) and not disputed by the applicants – twelve migrants arrested together with the applicants expressed their wish to apply for asylum, thus halting their return and resulting in their transfer to a reception centre for asylum seekers. There is thus no reason to assume that the Slovak authorities, which heeded the wishes of those other migrants to seek asylum, would have remained unreceptive to similar requests on the part of the applicants", "70. Lastly, it is not disputed by the applicants that the interpreter was present at the police station at least during the time of their interviews – that is to say between 9.10 and 12.30. Neither does the Court have reason to doubt that, as affirmed by the relevant documents signed by the applicants and the interpreter, the applicants were informed of their right to legal aid and of the possibility to comment on the case file and to adduce evidence; none of them chose to avail themselves of that right and possibility (see paragraph 7 above).", "71. In view of the above, the Court does not find that the applicants were deprived of the possibility to draw the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Slovakia, or that their removal to Ukraine was carried out without any form of examination of their individual situation.", "In conclusion, there has been no violation of Article 4 of Protocol No. 4 to the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No. 4", "72. The applicants complained that they had had no effective remedy through which to prevent their expulsion – which they deemed “collective” – to Ukraine since the decisions on their expulsion had excluded the otherwise automatic suspensive effect of the appeal; thus their removal to Ukraine had been immediately enforced. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "73. The Government contested the applicants ’ argument and considered that there existed no arguable claim under Article 13.", "74. The Court reiterates that Article 13 guarantees the availability of a remedy at national level to enforce – and hence to allege non-compliance with – the substance of the Convention rights in whatever form they may happen to be secured under domestic law. However, that Article cannot reasonably be interpreted as requiring such a remedy in respect of any supposed grievance under the Convention that a person may have, no matter how unmeritorious; the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). As a rule, the fact that a complaint has been declared admissible is a strong indication that it can be regarded as arguable for the purposes of Article 13, even if the Court ultimately finds no breach of the substantive provision in issue (see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003 ‑ VIII). However, determining whether a claim is arguable does not depend so much on the case ’ s procedural posture as on the particular facts and the nature of the legal issues raised.", "75. In the present case the Court, having regard to the particular circumstances and the available evidence, was not persuaded that the applicants ’ expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 or that the applicants were effectively prevented from applying for asylum. The position here is therefore akin to that in cases such as Halford v. the United Kingdom (25 June 1997, § 70, Reports 1997 ‑ III), Russian Conservative Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and 55638/00, § 90, ECHR 2007 ‑ I), and Ivan Atanasov v. Bulgaria (no. 12853/ 03, § 101, 2 December 2010), in which the Court, having regard to the particular circumstances, departed from its usual approach and found that complaints that had been declared admissible were nonetheless not arguable in terms of Article 13.", "76. Bearing in mind its case-law stemming from similar cases (see Khlaifia and Others, cited above, §§ 279 and 281), the Court also observes that the applicants did not raise any separate complaints under Articles 2 and 3, and nor did they substantiate their fear of being persecuted in Afghanistan.", "77. Accordingly, however the applicants ’ grievance is construed, the applicants have no arguable claim for the purposes of Article 13 of the Convention.", "78. It follows that this part of the application is manifestly ill-founded, and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1956 and is currently in Sweden.", "A. Background and the request for asylum in Sweden", "8. On 9 January 1993 the applicant arrived in Sweden and applied to the Immigration Board ( Invandrarverket ) for asylum and a residence permit, claiming that he had left Iraq due to his fear of Saddam Hussein and his regime. He brought his three children with him (born in 1987, 1988 and 1991, respectively) while his wife arrived in July 1994. At the initial interview held with the applicant on the day of his arrival in Sweden, he stated, inter alia, that he was Christian and had worked as a major in the Republican Guard where he had served in a transport division for heavy vehicles. He had deserted from the army fourteen days previously and had fled to the northern part of Iraq where, with the help of a smuggler, he had managed to get on a plane to Stockholm. He had had neither ticket nor passport and his wife had remained in northern Iraq.", "9. In a written submission dated 20 January 1993 the applicant added mainly the following to his initial account. He was born in Basra but had moved to Baghdad in 1986 when he married. Between October 1981 and February 1990, during the war with Iran, he had served in the military and he had been called up again between August 1990 and January 1992, during the occupation of Kuwait, to serve in an armoured transport division assigned to transport tanks. He had been given four military awards for bravery and four medals, however such medals had been given to a large number of officers and soldiers. In October 1992 he had been called upon to carry out military assignments (allegedly murders and terrorist acts) against the Shi ’ as in Al Ahwar. As he had felt unable to murder his own people, he had deserted and left Iraq on 20 December 1992. In this respect, he submitted that he sympathised with all organisations working against Saddam Hussein and working towards a democratic government. Following his desertion, he had visited his relatives in Basra and then made his way, with his family, to northern Iraq, where he and his children had travelled to Sweden via Turkey with the help of smugglers. Since he had held the rank of major in the reserve and had deserted, he would be executed if he were forced to return to Iraq. Apart from his four medals he also had an identity card as a major which confirmed that he was one of Saddam Hussein ’ s friends.", "10. At a second interview at the Immigration Board, held on 17 September 1993, the applicant confirmed the information provided by him and added, in particular, that he had not engaged in any political activities.", "11. On 14 and 15 December 1993 another two in-depth interviews were held with the applicant in which he essentially stated the following. He was Christian and belonged to the Ba ’ ath Party where he had attained the level of “advanced sympathiser” which was the level before becoming a full member. He had been drafted to the military in October 1981, had become an officer in 1986 and had risen to major in 1990. He claimed that he had never participated in any combat or killed anyone since his military work had mainly consisted of ensuring the functioning of transports and support for the front line. As an officer, he had been placed under the orders of others and thus had never had any influence himself. He had participated in the war against Iran and when this ended in 1988 he had been transferred to an armoured tank division within the Republican Guard. In March 1992 he had received four medals for bravery from the Ministry of Defence. He stated that about 500 officers had received such medals and that they were mainly perceived as an encouragement to the officers. At this time he had also received a special identity card, “Friends of Saddam”, which almost every officer in the Republican Guard and some officers in the regular army received. He had never met Saddam Hussein personally but the card gave certain privileges, inter alia, in contacts with the authorities. During the interview on 15 December 1993, the applicant changed certain statements which he had previously given to the Immigration Board. In particular, he claimed that he had not been called back into service after he left the military in January 1992. Moreover, he stated that he had applied for a visa for a tourist trip to Malta with his family at the Maltese Embassy in Baghdad and that they had received both visas and exit permits for a month. Hence, on 4 October 1992, the family had travelled legally from Baghdad to Jordan and from there by plane to Malta. He and his children had then travelled to Sweden from Malta, with the help of smugglers. The applicant stated that he wished to return to Iraq if Saddam Hussein lost power.", "12. One further supplementary interview was held with the applicant on 10 January 1994 in which he maintained that he had left Iraq legally on 4 October 1992 by car to Jordan, after the family had received valid passports, exit permits and visas. He also added that, from Jordan, the family had flown to Cyprus from where they had intended to continue to Greece. Since this had not been possible, they had returned to Jordan before travelling to Malta where they had arrived on 19 October 1992. Since the smugglers had not been able to arrange a passport for his wife, she had had to remain in Malta when the rest of the family went to Sweden.", "13. In February 1994 the Swedish Security Police ( Säkerhetspolisen ) proposed a rejection of the applicant ’ s asylum request for security reasons. On the basis of this, the Immigration Board decided to transfer the case to the Government for consideration but it recommended that the application be rejected. In its view, the applicant had not convincingly shown that he was in need of protection in Sweden. Although it accepted the applicant ’ s military background, it did not believe his reasons for leaving Iraq, inter alia, because he had only admitted leaving Iraq legally with his own passport and an exit permit, and the route used, once confronted with facts.", "14. Subsequently, in 1997, the Security Police informed the Government that they no longer had any objections to the application from the point of view of security. Hence, the case was transferred back to the Immigration Board.", "15. On 11 June 1998 the Immigration Board rejected the application for asylum with reference to its recommendation to the Government and noting that it found no reason to change the evaluation made at that time. Moreover, it dismissed the applicant ’ s request for a residence permit on the ground that it was not competent to change or repeal a final court judgment concerning expulsion. The Board observed that only the Government could repeal an expulsion order based on a criminal conviction and, in that connection, consider a request for a residence permit.", "B. The criminal proceedings", "16. In the meantime, on 2 May 1995, before the asylum application had been determined, the District Court ( tingsrätten ) of Tierp convicted the applicant of murder and sentenced him to forensic psychiatric care, the duration of which was subject to a medical evaluation. It further ordered that the applicant be expelled from Sweden with a prohibition on returning. The applicant had admitted that he had killed his wife but claimed that he had acted in psychosis and had not intended to kill her. He had suspected that she had been unfaithful and had conspired against him behind his back. In its judgment, the court noted that the applicant, after having locked the door to the children ’ s room, had repeatedly stabbed his wife while she was asleep. In these circumstances, the court found that the applicant had been completely indifferent as to whether his wife died or not and therefore should be convicted of murder. However, since a forensic psychiatric examination showed that he had committed the crime in a state of “serious mental disturbance” ( allvarlig psykisk störning ) and was still, during the examination, suffering from such a disturbance, the court concluded that he was in need of treatment and sentenced him to forensic psychiatric care.", "17. As concerned the expulsion, the applicant had stated before the District Court that he had been an officer in Saddam Hussein ’ s army and often away on missions. Because of the war, he and his family had fled from Iraq in 1993 but he had psychological problems stemming from the war.", "18. The District Court had also consulted the Immigration Board and it had submitted that, although it had not yet made a decision regarding the applicant ’ s application for asylum and a residence permit, it considered that there were no impediments to the expulsion of the applicant to his home country. The Board noted that the applicant, an army officer, had left Iraq legally with a valid Iraqi passport containing a one-month exit visa. He had not brought his national passport with him when he entered Sweden. Having regard to the Board ’ s view and noting that the applicant had committed a very serious crime, the District Court concluded that he should be expelled from Sweden for life.", "19. The applicant did not appeal against the judgment which, consequently, gained legal force.", "20. It would appear that, following the applicant ’ s criminal conviction, his children were taken into compulsory public care and placed with a Swedish family. Furthermore, a special guardian was appointed for them and they were granted permanent residence permits in Sweden.", "21. On 14 December 2004 the County Administrative Court ( länsrätten ) of the County of Dalarna decided to end the forensic psychiatric care and to release the applicant.", "C. Requests for the expulsion order to be revoked", "22. In the meantime, in July 1998, the applicant requested the Government to repeal the expulsion order against him. He insisted that he would be tortured and executed if he was returned to Iraq because he had deserted from the Iraqi army.", "23. On 12 November 1998 the Government rejected the request as they found that no special reasons existed for repealing the expulsion order.", "24. The applicant renewed his request in February 2001, maintaining his claims. Upon request by the Government, the Migration Board ( Migrationsverket ) submitted its view on the case, stating that the applicant ’ s reasons had been examined previously and that no new circumstances had appeared for which reason the enforcement of the expulsion could take place. However, the Board added that there had been practical impediments to enforcement for some time with regard to Iraq.", "25. On 17 May 2001 the Government found that there were insufficient reasons for revoking the expulsion order. However, having regard to the situation in Iraq at the time, the Government decided to grant the applicant a temporary residence permit and work permit up until 17 November 2001.", "26. In a new application, dated 7 November 2001, the applicant requested that the expulsion order be revoked and that he be granted a permanent residence permit or, in the alternative, that his temporary residence permit be extended for at least one year.", "27. The Migration Board submitted its comments on the case on 12 December 2002, concluding that there were no legal or practical impediments to the enforcement of the expulsion order and that the applicant should be able to return to Iraq.", "28. Following the fall of Saddam Hussein ’ s regime in April 2003, the Migration Board sent another submission to the Government on 17 November 2003 where it noted that the applicant ’ s case now had to be seen in another light. His reasons for fearing a return to Iraq had been removed now that Saddam Hussein was no longer in power. The Coalition Provisional Authority governing Iraq at the time was striving to build up a society characterised by democracy and respect for human rights and those who had been close to the old regime and who had committed war crimes and other crimes against humanity would be brought to justice. Thus, the Board considered that the applicant would not risk being tortured or treated inhumanely if sent back to Iraq and consequently there was no impediment to his expulsion.", "29. In reply, the applicant claimed that since he had been an officer in the Republican Guard, he would be exposed to persecution and acts of revenge from primarily Shi ’ a Muslim groups and that there was no functioning legal system or police force which could give him protection against abuse. It followed that there existed impediments to the enforcement of his expulsion.", "30. Since the Government had several pending cases concerning expulsion to Iraq, they requested the Iraq Office at the Swedish Embassy in Jordan to reply to some questions relating to the situation in Iraq.", "31. In November 2004 the Iraq Office sent, inter alia, the following information to the Government, which was communicated to the applicant. In August 2004 the death penalty was reintroduced in Iraq for offences such as murder, kidnapping and crimes against national security. Moreover, according to the Iraqi Penal Code of 1969, a person who had been convicted or acquitted by final judgment in another country could not be retried in Iraq. However, it was not known whether this provision had been modified or changed by the Interim Government. Furthermore, it was difficult to assess “tribal justice” in Iraq due to the poor security situation in the country but it was possible that, if a person were to return to an area where he was known and his victim was also known, there could be a risk of revenge or “tribal justice”. It was further noted that there were reports of harassment against Christians and that attacks had been directed against Christians and other minorities during 2004.", "32. The applicant commented on the information and stressed that he was Christian and that the Christian minority in Iraq was being persecuted. Moreover, he had held a prominent position in the Ba ’ ath Party, had belonged to the exclusive circle that had been given the “Saddam ’ s Friends” identity card and he was well known and hated by many. Thus, it was certain that he would be killed if returned to Iraq.", "33. On 21 March 2005 the Minister of Justice at the time decided to suspend the enforcement of the expulsion order until otherwise decided or until the Government made a final decision on the case. He further decided that the applicant should report to the police three times per week in order to prevent him from going into hiding.", "34. Subsequently, the Government requested the Iraq Office at the Swedish Embassy in Jordan to reply to some supplementary questions relating to the situation in Iraq, which it did on 3 November 2005. In its reply it noted that, at the time, it was very difficult to obtain a complete overview and clear information about Iraq. Still, it observed that persons who had been part of the Republican Guard, other special military units or the military in general were being arrested and tried in Iraq. According to sources such as the UNHCR, the activities of these persons within their organisation determined how they were being treated more than to which military unit they had belonged. However, their position and military rank was of relevance as an indication of who could be targeted. In this context it was noted that members from special units, such as the Republican Guard, were being re-employed into the current special units. Moreover, the UNHCR had stated that even though many Iraqis were harassed as a result of their former membership of the Ba ’ ath Party, this harassment did not necessarily amount to persecution. A careful individual assessment was always necessary.", "35. The applicant, in a comment on the Iraq Office ’ s information, maintained that there was a real risk that he would be subjected to extrajudicial execution if returned to Iraq due to his previous connections to Saddam Hussein ’ s regime.", "36. On 27 June 2006 the Migration Board submitted its opinion on whether the reintroduction of the death penalty in Iraq in 2004 had an impact on the enforceability of the applicant ’ s expulsion order. It considered that none of the information submitted by the applicant, in his detailed asylum interview in 1993 and later, regarding his position and activities until he left Iraq in 1992, indicated that he would risk legal measures, least of all the death penalty, from the current Iraqi government. Neither his membership of the Ba ’ ath Party nor his relatively subordinate position in a non-combat unit were likely to cause him problems with the Iraqi authorities upon return to his home country. Thus, there were no impediments to the enforcement of the expulsion order.", "37. On 6 July 2006 the Government decided not to revoke the expulsion order and rejected the applicant ’ s request for a residence permit. It found that there was neither any impediment to the enforcement of the expulsion nor any other special reason under the Aliens Act to revoke the expulsion order.", "38. As the expulsion order had become enforceable anew, the police authority, on 27 July 2006, detained the applicant awaiting the enforcement of his expulsion order.", "D. Application of Rule 39 of the Rules of Court and further developments in the case", "39. On 15 August 2006 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his expulsion to Iraq. He alleged that he would be executed or tortured and imprisoned if returned to his home country because he had been an officer during Saddam Hussein ’ s regime and had belonged to his “inner circle”. Moreover, since he was Christian, he risked persecution on religious grounds.", "40. On 17 August 2006 the Court decided to apply Rule 39 and to suspend the expulsion until 1 September 2006 in order to obtain some further information from the Swedish Government. In particular, the Government were requested to give their opinion on whether the applicant would risk being brought to trial before the Supreme Iraqi Criminal Tribunal (hereafter referred to as “the SICT”) and sentenced to death.", "41. On the following day, the Minister of Justice at that time decided to suspend the expulsion of the applicant until further notice. He also decided to keep the applicant in detention since there was reason to believe that he would otherwise try to abscond. The detention decision was reconsidered every two months until 29 June 2007, when it was decided that he should be released and that he should report to the police twice a week.", "42. In the meantime, on 31 August 2006, the Government replied to the Court ’ s request. They first observed that the SICT had jurisdiction over individuals residing in Iraq accused of war crimes, genocide, crimes against humanity and a number of “political” offences under Iraqi law, including waste of national resources and abuse of position. It applied the penalties available in Iraqi law, including the death penalty. The Iraqi Governing Council had agreed that the SICT should process a limited series of 10 to 15 trials, focusing on major events that showed the geographic and temporal spread of the regime ’ s crimes, and that only the highest-level perpetrators should be tried before the SICT. Other perpetrators should be tried by regular Iraqi courts.", "43. The Government further noted that the applicant ’ s claim that he had belonged to Saddam Hussein ’ s inner circle was recent and did not correspond to the detailed statements given by him during the asylum proceedings. They also stressed that the applicant had neither claimed to have committed any crime, nor that he was, or might be, suspected of having committed a crime which fell under the jurisdiction of the SICT. The sole fact that he had held a subordinate position as an officer in the Republican Guard or been a member of the Ba ’ ath Party did not give reason to believe that he would be suspected of such serious or brought to trial before the SICT.", "44. On 1 September 2006 the Court extended the application of Rule 39 until 15 September 2006 in order to enable the applicant to reply to the Government ’ s comments.", "45. The applicant submitted his comments in reply to those of the Government on 13 September 2006. He stated that the Ba ’ ath Party had been an elite party with only a few full members. He had been an “ advanced sympathiser ” which meant that he had held a high position in the hierarchy. Moreover, although he had not been in the infantry, he had participated in battle in an armoured unit during the various wars until 1992 when he had left the country because he had been ordered to carry out military actions that were against international law. The Government ’ s allegation that he had said that he had not been or could not be suspected of crimes under the jurisdiction of the SICT was wrong. The assessment of his application for asylum took place in 1993, at a time when the SICT had not yet come into existence and he had also not been asked about it later. Apart from the risk of being sentenced by the SICT or another jurisdiction, there was a real risk that he would be the victim of an extrajudicial killing. Extremist militias tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or who had fought against the Shi ’ as in southern Iraq in 1991. The retaliation was collective and directed against all officers who had fought under Saddam Hussein. The applicant also stressed that as a Christian he would be without protection in Iraq and his situation upon return would thus be most serious.", "46. On 13 September 2006 the Court extended the application of Rule 39 until 26 September 2006, on which date it was extended until further notice.", "III. INFORMATION ON IRAQ", "A. General background", "56. During the regime of Saddam Hussein, Iraq was at war with Iran between 1980 and 1988. In August 1990, Iraq invaded Kuwait, which led to the “First Gulf War”, lasting for six weeks between 17 January and 28 February 1991. Between March and April 1991 the regime suppressed a Kurdish insurgency in northern Iraq and a Shi ’ a insurgency in the south of the country. In March 2003 the “Second Gulf War” started when US-led multinational forces invaded Iraq and overthrew Saddam Hussein ’ s regime. The Republican Guard was involved in all of these conflicts. It expanded rapidly during the Iraq-Iran War and comprised the best equipped and trained units among Saddam Hussein ’ s forces. In May 2003 the Republican Guard, the Iraqi army, the police and the Ba ’ ath Party were officially dissolved by the Coalition Provisional Authority (hereafter “the CPA”) in a process called the “ De-ba ’ athification” (through CPA Order Number 2 of 23 May 2003). Subsequently, in June 2004 power was transferred from the CPA to the Iraqi Interim Government and, in October 2005, a permanent government was elected by the Iraqis.", "B. Ba ’ ath Party membership", "57. The Ba ’ ath Party membership lists have never been found and there is relatively little information about the inner workings of the party and its structure. However, it would appear that membership was originally highly restricted but that the rules were significantly relaxed in the 1990s, leading to a great expansion of the membership in order to bolster stability (International Center for Transitional Justice, Briefing Paper: Iraq ’ s New “Accountability and Justice” Law, 22 January 2008, hereafter “ ICTJ Briefing Paper”). There were several levels of membership (between 6 and 8, depending on the source) and training and probation periods (divided into 3 to 5 levels) were always required before becoming a full member of the party (Ibid. and Landinfo, Baath-partiet. Medlemskapsnivåer og partiorganisasjon [The Ba ’ ath Party. Membership levels and party organisation], 13 June 2008 – hereafter “Landinfo”). The total number of party members has been estimated to between 1 and 2.5 million ( Landinfo ). A person who was a “sympathiser” or an “ advanced partisan” was not a full member of the Party. Moreover, it would appear that persons who had been in the Ba ’ ath Party for at least 10 years were called “ Friends of Saddam” (UNGA, A/51/496, Note by the Secretary-General, Situation of Human Rights in Iraq, 15 October 1996).", "58. The De-ba ’ athification process was widely criticised as it was seen as a collective punishment while, at the same time, providing impunity for others. Therefore, in January 2008 the Iraqi Parliament passed the Accountability and Justice Act which established a clearer legal framework for dismissals and reinstatements of former Ba ’ ath Party members and introduced an element of individual responsibility into the process. The law allows for some higher ranking members of the Ba ’ ath Party to apply for reinstatement (an estimated 30.000 persons) and makes most individuals who have been dismissed eligible for pensions, with the exception of some of the highest part members and those who have been involved in corruption or committed crimes (ICTJ Briefing Paper and International Herald Tribune, Solomon Moore, Uncertainty surrounds new Iraqi De- ba ’ athification law, 14 January 2008).", "C. The Iraqi High Tribunal and criminal responsibility", "59. Holders of high positions in the Ba ’ ath Party who were suspected of having been close to the old regime and/or taken part in different violent actions could be, and had been, arrested and called to account. It was the person ’ s own background and the credibility of his or her account that determined the risk of judicial proceedings (Information from the Iraq Office of the Swedish Embassy in Jordan to the Swedish Government, dated 15 March 2007; hereafter “the Iraq Office ’ s Information” ). Hence, in 2003, the Iraqi High Tribunal (IHT, formerly the SICT) was created to try persons accused of committing war crimes, crimes against humanity, genocide and specified offences between 17 July 1968 and 1 May 2003. The IHT had already tried and convicted Saddam Hussein and a few of his closest collaborators. Several of them had been sentenced to death and some to life imprisonment. At least one defendant had been acquitted ( US Department of State, Iraq, Country Reports on Human Rights Practices 2007, 11 March 2008; hereafter “ US Country Report” ).", "60. According to the Iraq Office ’ s Information, for individuals who did not “qualify” for examination by the IHT, there still remained a risk of review by the usual legal system and its criminal courts. The death penalty had been reintroduced in 2004 for, inter alia, crimes against national security, murder, kidnapping and drug trafficking and it was increasingly used. Moreover, in particular in Baghdad, southern and central Iraq, several Shi ’ a militia groups more or less systematically, and very extensively, sought out people who were guilty of acts of aggression under the former regime. The more well known a person had been as a representative of the former regime, the greater the risk of being discovered and punished.", "61. In February 2008 the Iraqi parliament adopted an Amnesty Law which provided a general amnesty for all convicted Iraqis and those accused of crimes but who were still under investigation or trial. It did not apply to persons convicted of very serious crimes such as murder, rape, kidnapping, drug-related crimes and embezzlement (Reuters, Factbox: Iraq ’ s amnesty and provincial powers law, 18 February 2008). By October 2008 just over 122,000 detainees in Iraqi jails had been released by virtue of the Amnesty law, while roughly 30,000 remained in prison as the law did not apply to them ( Iraq Updates, Voices of Iraq, More than 120,000 detainees covered by amnesty law, 12 October 2008 ).", "D. The current security situation in Iraq", "62. On 29 October 2008 the US military relinquished security responsibility to Iraqi forces of Wasit province, the 13 th province out of 18 to be placed under Iraqi control. Only Baghdad and the four Northern provinces remained under US command (Center for Excellence, Iraq Crisis Report, 29 October 2008).", "63. The declared state of emergency lapsed in April 2007 and has not been renewed. However, there were reports that law enforcement activities often continued as if the state of emergency was still in effect (US Country Report). Civilians were targeted by attacks by Sunni and Shi ’ a groups across the country, and there were widespread and severe human rights abuses, including kidnappings, disappearances, torture and killings. The authorities frequently did not maintain effective control over security forces and did not have effective mechanisms to investigate and punish abuse and corruption (US Country Report).", "64. In October 2008, the UN Special Representative of the Secretary General for Iraq stated there had been a noticeable drop in violence over the past year and that Iraq had made significant strides towards stability and institution building although the human rights situation continued to be serious (UNAMI press releases 24 October 2008, UNAMI Commemorates the 63 rd United Nations Day ). According to Iraq Body Count ( www.iraqbodycount.org as downloaded on 6 November 2008), civilian deaths in Iraq had gradually decreased since August 2007, with the exception of March and April 2008. Thus, there were 590 civilian deaths in August 2008 and 539 in September 2008, as compared to 2 ,324 in August 2007 and 1, 220 in September 2007. The decrease in civilian deaths has mainly been attributed to the cease-fire declared in August 2007 by Moqtada al-Sadr, the leader of the Mahdi Army (a Shi ’ a paramilitary force created in June 2003 to fight against the multinational forces). The ceasefire was initially declared for a period of six months but was prolonged and, in August 2008, al-Sadr announced an indefinite ceasefire and stated that anyone in his Mahdi Army who did not follow his order would not be considered a member of his group (United Press International, Sadr declares another ceasefire, 29 August 2008). Moreover, according to Human Rights Watch, violence has abated because Sunni and Shi ’ a populations have fled from mixed areas and thus have become increasingly divided into geographically distinct communities (Human Rights Watch, World Report – Iraq, 31 January 2008 ).", "65. Another sign of the decrease in violence is the establishment of the World Health Organization ’ s (WHO) permanent office in Baghdad in June 2008 (UNAMI press release 28 June 2008, The World Health Organization Establishes Permanent Office in Baghdad ) and the activities of some 32 humanitarian international NGOs with programmes in Iraq, operating directly or via implementing partners, although the Iraqi Red Crescent Society was the only agency operating openly nation-wide through its 18 branches (Center of Excellence, Iraq Crisis Report, 29 October 2008). Furthermore, several Arab countries, including Bahrain and Kuwait, sent ambassadors to Iraq during September and October 2008 to open their Embassies ( Center of Excellence, Iraq Crisis Report, 22 October 2008).", "E. Christians in Iraq", "66. The Iraqi Constitution provides for freedom of religion. Passports do not indicate an individual ’ s religion but the national identity card explicitly notes the holder ’ s religion. According to the official 1987 census, there were 1.4 million Christians living in Iraq. Although difficult to verify, the Christian Peace Association (CPA), estimated that about 450,000 Christians remained in Iraq at the end of October 2007, most of whom had moved to the northern provinces, although since September 2007 there had been attacks and threats against the community in Kirkuk and Mosul (The Humanitarian News and Analysis Service, IRIN, Iraq: Christians seek new life in Europe, 5 November 2007). The Iraqi Government and religious leaders publicly denounced all incidents of sectarian violence and repeatedly encouraged unity among the country ’ s religious groups. However, deficiencies in security force capabilities made it difficult for the Iraqi Security Forces and the justice system to investigate or address alleged violations (US Department of State, International Religious Freedom Report 2007 - Iraq, 14 September 2007).", "67. Between 4 and 13 October 2008, 12 Christians were killed in Mosul and others were threatened to leave the city. About 11,000 Christians left as a result, although the Iraqi Prime Minister ordered the Iraqi Army and police in the Mosul area to protect the members of the Christian community. On 19 October 2008 security had been restored and the displaced persons were encouraged by the authorities to return. The Organisation of the Islamic Conference, among others, condemned the attacks (US Department of State, Iraq Weekly Status Report, 15 and 22 October 2008, and IRIN, Iraq : Uncertainty over who is behind attacks on Christians, 20 October 2008 ).", "F. Iraqi refugees", "68. Currently there are about 2,700,000 Iraqis displaced within Iraq and over 2,000,000 Iraqis have left the country, most of them for Syria and Jordan ( Center of Excellence, Iraq Crisis Report, 22 October 2008).", "69. Since March 2003, the UNHCR has advocated recognition of the international protection needs of Iraqis outside their country, and hence a suspension of forced returns, due to the objective situation of armed conflict and generalised violence in Iraq (UNHCR, Strategy for the Iraq Situation, as revised 1 January 2007 and Addenum to UNHCR ’ s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers, December 2007). In September 2008 the UNHCR stated that it hoped that the majority of Iraqi refugees would be able to return home in safety once the necessary conditions of stability and security were established but that these conditions were not yet present. The security environment remained precarious, particularly in Central and Southern Iraq, where issues relating to shelter and property restitution or compensation had not yet been solved (UNHCR, UNCHR urges reinforced EU commitment to protection of Iraqi refugees, 23 September 2008).", "70. The United Nations and the International Organisation for Migration (IOM) have stated that, although they “do not necessarily encourage return at this time because of security concerns, both are committed to providing assistance to those who do decide to return” (IOM, Assessment of Iraqi Return, August 2008). The IOM has further noted that the rate of displacement in Iraq has slowed and that the rate of return has accelerated, mostly to Baghdad. So far, more than 100,000 people have returned to Baghdad, the absolute majority being internally displaced persons who have returned to their homes of origin ( Center of Excellence, Iraq Crisis Report, 22 October 2008). Moreover, the Iraqi Government have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees ( IOM, cited above ). According to the IOM, military operations, general insecurity and occupied houses are the primary reasons preventing Iraqis from returning home.", "71. Amnesty International considered that Iraq was still in a situation of internal armed conflict and criticised several European countries, including Sweden, Denmark and the United Kingdom, for forcibly returning failed asylum seekers to all parts of Iraq (Amnesty International, Iraq - Rhetoric and reality: the Iraqi refugee crisis, June 2008)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Domestic law on expulsion", "47. Pursuant to Chapter 1, Article 8 of the Penal Code ( Brottsbalken, 1962:700), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place.", "48. Provisions on expulsion on this ground are laid down in the Aliens Act ( Utlänningslagen, 2005:716 – hereafter “the 2005 Act”) which replaced the old Aliens Act ( Utlänningslagen, 1989:529) on 31 March 2006. However, the rules on expulsion on account of a criminal offence remain the same in substance under the 2005 Act as under the old Aliens Act. Thus, in the following, reference will only be made to the 2005 Act.", "49. According to Chapter 8, sections 8 and 11 of the 2005 Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person ’ s links to Swedish society have been taken into account.", "50. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1 of the 2005 Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.", "51. A decision to expel an alien on account of having committed a criminal offence is, according to Chapter 12, section 14 § 3(2) of the 2005 Act, enforced by the police authority. If the police authority finds that there are impediments to the enforcement, it shall notify the Migration Board, which shall refer the matter to the Government to examine whether the expulsion can be executed (Chapter 12, section 20 of the 2005 Act). If there are no impediments to the enforcement, the alien shall normally be sent to his or her country of origin or, if possible, to the country from which he came to Sweden (Chapter 12, section 4 of the 2005 Act).", "52. According to Chapter 8, section 14 of the 2005 Act, if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts ’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government ( Regeringsformen ), pardon or reduce a penal sanction or other legal effect of a criminal act.", "53. In cases where the expulsion order is not revoked, the Government may still grant a temporary residence permit and work permit. For as long as such a permit is valid, the expulsion order may not be executed (Chapter 8, section 14 of the 2005 Act).", "B. Swedish policy on asylum seekers from Iraq and expulsion to Iraq", "54. In a judgment of 26 February 2007 (MIG 2007:9), the Migration Court of Appeal ( Migrationsöverdomstolen ) found that, at that time, the security situation in Iraq was very serious but that it did not amount to an internal armed conflict, as defined by international law. Moreover, it noted that it was practically possible to return to Iraq voluntarily and that some Iraqis indeed did so. In these circumstances, an individual assessment of each asylum seeker ’ s personal grounds for requesting asylum and a residence permit in Sweden had to be carried out. This conclusion has been reiterated by the Migration Court of Appeal on several occasions during the last year (see, for example, MIG 2007:22 and MIG 2007:33). Furthermore, on 24 April 2008, in a leading decision concerning three Christian asylum seekers from Mosul (a mother and her two minor children), the Director-General for Legal Affairs of the Migration Board made the assessment that the general situation for Christians in Iraq, and in the province of Nineve (where Mosul is situated), was not so serious that this group could be considered to be in need of protection in Sweden. An individual assessment had to be made in each case of the reasons invoked by the asylum seeker.", "55. On 18 February 2008 the Swedish Government signed a Memorandum of Understanding with the Iraqi Government, whereby the two countries “resolve to cooperate in order to assist the voluntary, dignified, safe and orderly return to and successful reintegration in Iraq of Iraqis now in Sweden ”. Although primarily focusing on voluntary returns, the Memorandum also allowed for forced returns of failed asylum seekers.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "72. The applicant claimed that an expulsion to Iraq would subject him to a real risk of being killed or subjected to torture or inhuman and degrading punishment, in violation of his rights under Articles 2 and 3 of the Convention. These provisions read, in relevant parts, as follows:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "... ”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "The Court finds that the issues raised in the present case under Articles 2 and 3 of the Convention are indissociable and will therefore examine them together.", "A. The parties ’ submissions", "1. The applicant", "73. The applicant argued that, if forced to return to Iraq, he would face a real and serious risk of being sentenced to death by an Iraqi court or of being killed extrajudicially, primarily by Shi ’ a militia groups.", "74. He claimed that he had told the Swedish Security Police, when they had interviewed him in 1993, that he had participated in about fifteen battles during the Iran-Iraq war and during the internal “cleansing” operations in southern and northern Iraq in 1991. He had been trained as an infantry soldier and had been active as such from 1980 to 1988. Thus, he had been taught how to handle weapons and hand-to-hand fighting. In 1988 he had reached the rank of officer and thereafter he had been working with logistics. During this period he had also had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them. According to the applicant, the Shi ’ as considered these two persons martyrs and there were “people ’ s committees” within the Mahdi Army, and other Shi ’ a militias, which reported on the whereabouts of all former officers belonging to the Republican Guard and executed them. It was irrelevant whether the applicant had personally killed any of these or not.", "75. Furthermore, the applicant strongly objected to any claim that he was not credible. For instance, he had never alleged that he had belonged to Saddam Hussein ’ s inner circle and he had stated all along that he had never even met him. However, he maintained that he was well known and that the Shi ’ as by way of their various militias were actively looking for persons with the applicant ’ s background and killing them. The fact that a long time had elapsed since he had served in the Republican Guard was irrelevant.", "76. In the applicant ’ s view, it was also possible that he might be tried again in Iraq for the murder of his wife. This was particularly so since he had been sentenced to forensic psychiatric care and not to imprisonment.", "77. Finally, he stressed that, according to estimates, before 2003 approximately 1% of Iraq ’ s twenty-six million inhabitants were Christians but that more than half of these had now left the country because they had been targeted. He was Christian and, as such, risked being killed in Iraq.", "78. Thus, the applicant was convinced that on the basis of all of the above grounds, he would face a real risk of being killed or tortured or ill-treated contrary to Articles 2 or 3 of the Convention if forced to return to Iraq.", "2. The Government", "79. The Government considered that the application did not disclose any violation of Articles 2 or 3 of the Convention.", "80. They submitted that, although the situation in Iraq was still problematic, Iraqis did return to their home country, in particular to Baghdad and that, during the first four months of 2008, almost 300 Iraqis had returned voluntarily to Iraq from Sweden. In any event, for a violation to be established, the general situation in the country of destination was not enough. It had to be shown that the applicant would run a real and personal risk of being subjected to treatment contrary to Articles 2 or 3 of the Convention if returned to Iraq.", "81. In this respect, the Government questioned the applicant ’ s general credibility, pointing out that his statements to the Government and to the Court had, generally, been very vague and sweeping and had been unsupported by further details, particulars, facts or examples. They submitted that the information given by the applicant during the asylum interviews in 1993/94, namely that he had held a relatively subordinate position in a non-combat unit in the Iraqi army more than fourteen years earlier, had to form the basis for an assessment of whether he risked execution or torture or other ill-treatment if returned to Iraq.", "82. Consequently, the Government doubted the veracity of the applicant ’ s claim that he had been close to Saddam Hussein or that he had held a prominent position within the Ba ’ ath Party since these claims had been put forward late in the proceedings. Before that, he had consistently stated that he had been an “advanced sympathiser”. In any event, the Government noted that it had not been unusual to be a member of the Ba ’ ath Party, but more or less a prerequisite for anyone who had wanted to advance in any way in Iraq.", "83. The Government further observed that the applicant ’ s claim that he had participated in combat during the war against Iran, in the first Gulf war and against the Shi ’ a insurgency was contrary to his previous statements that he had not participated in battle as he had been responsible for transporting vehicles and food. Furthermore, they observed that he had offered no explanations or circumstances in support of why any charges might be brought against him, reiterating that the applicant had repeatedly stated that he had not participated in battle or killed anyone. Thus, the Government argued that he had failed to show that he might be brought to justice before an Iraqi court, let alone that it would give him a death sentence.", "84. In any event, they argued that the sole fact that a person had served in the Iraqi military under Saddam Hussein did not subject him to a risk of capital punishment or torture but that the individual risk depended on the person ’ s position, military rank and the activities in which he had been involved. They gave the example of the Iraqi Minister of Defence, Mr Abdu Alqadir Al-Ubaydi, who had been in the military since 1973 and had led an armoured brigade during the Iran-Iraq war. Moreover, the Government pointed out that, in June 2008, over 14,000 applications had been received from former Ba ’ ath Party members for reinstatement or pensions under the Accountability and Justice Law. Hence, there was nothing to suggest that the applicant would be at risk in Iraq. Anyhow, the Government noted that the applicant had not claimed that he was personally wanted, or searched for, by the Iraqi authorities.", "85. In line with the above, the Government submitted that the applicant did not face a real risk of being killed extrajudicially. In their view, it was unlikely that the reintegration of former officers now taking place in Iraq would be possible if everyone who had been in Saddam Hussein ’ s army risked extrajudicial killing solely on this account. Also, considering the large number of members of the Ba ’ ath Party during the old regime, it was not likely that the applicant ’ s low position in the party would now, more than fourteen years after he left the country, attract any interest in Iraq or subject him to a risk of fatal retaliation from different interest groups, including from Shi ’ a militia groups.", "86. As concerned the issue of whether the applicant might risk being sentenced in Iraq a second time for the murder of his wife in Sweden, the Government referred to the Iraqi Penal law from 1969 and stressed that the applicant had fully served the sentence imposed on him in 1995 in Sweden and that there was no reason to expect the Iraqi authorities to have an interest in pursuing the applicant in a new trial in Iraq for the same crime.", "87. The Government further submitted that the sole fact that someone was a Christian could not be considered to entail an additional risk of being exposed to violence. They claimed that the applicant had not described himself as actively religious in Sweden or in Iraq in such a way that people would associate him with Christianity and he would be personally targeted because of this in Iraq.", "88. Hence, in conclusion, the Government contended that the applicant had not shown that he would face a real and personal risk of treatment contrary to Articles 2 or 3 of the Convention if expelled to Iraq.", "B. The Court ’ s assessment", "89. The Court observes that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ .... ). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 - ... ).", "90. It further notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R. v. France, 29 April 1997, § 41, Reports of Judgments and Decisions 1997 ‑ III ). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return ( see NA v. the United Kingdom, no. 25904/07, § 115, 17 July 2008 ).", "91. In the present case, the Court recognises the problematic security situation in Iraq. However, it notes that the situation has improved over the last year which is demonstrated, inter alia, through the progressive relinquishment of security responsibility over Iraqi provinces from US forces to Iraqi forces, the indefinite cease -fire declared by the Madhi Army in August 2008, a significant decrease in civilian deaths and the fact that some Iraqis are voluntarily starting to return to their homes, encouraged by the Iraqi Government ’ s financial incentives and subsidy programme. Although the Court is aware that the UNHCR, UN and IOM recommend that countries refrain from forcibly returning refugees to Iraq, they have stated that they are committed to providing assistance to those who return. Moreover, the Court observes that their recommendations are partly based on the security situation and partly due to practical problems for returnees such as shelter, health care and property restitution.", "92. In this connection, the Court stresses that it attaches importance to information contained in recent reports from independent international human rights organisations or governmental sources (see, among others, Saadi v. Italy, cited above, § 131). However, its own assessment of the general situation in the country of destination is carried out only to determine whether there would be a violation of Article 3 if the applicant were to be returned to that country. Consequently, where reports are focused on general socio-economic and humanitarian conditions, the Court has been inclined to accord less weight to them, since such conditions do not necessarily have a bearing on the question of a real risk to an individual applicant of ill-treatment within the meaning of Article 3 ( see NA v. the United Kingdom, cited above, § 122).", "93. Hence, in the present case, the Court concludes that whilst the general situation in Iraq, and in Baghdad, is insecure and problematic, it is not so serious as to cause, by itself, a violation of Article 3 of the Convention if the applicant were to return to that country. The Court therefore has to establish whether the applicant ’ s personal situation is such that his return to Iraq would contravene Articles 2 or 3 of the Convention.", "94. In the case before it, the Court observes that the applicant has invoked several grounds for his fear of returning to Iraq, namely his Christian faith, his background as a member of the Republican Guard and the Ba ’ ath Party which would put him at risk of being sentenced to death or of being killed by Shi ’ a militia groups, and a risk of being convicted a second time for the murder of his wife.", "95. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it.", "96. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Iraq, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine ).", "97. The Court will first consider the applicant ’ s claim that he would risk being killed because he belongs to the Christian faith. In this respect, the Court observes that Iraqi national identity cards explicitly note the holder ’ s religion. Thus, even if the applicant were not to manifest his religious beliefs openly, it is likely that his religious affiliation would become known to others as he would have to show his identity card to the authorities in the course of everyday life. The Court also takes into account that there have been several incidents directed against Christians in Iraq, as recently as October 2008 twelve Christians were killed in attacks in the town of Mosul. However, Christian congregations are still functioning in Iraq and, from the general information available, it can be seen that the Iraqi Government has condemned all attacks against this group and that they intervened with police and military following the October attack to ensure their safety. Hence, it is clear that there is no State - sanctioned persecution of Christians and, since the attacks were also condemned by Islamic groups and no one has accepted responsibility for them, it appears that the reported attacks were carried out by individuals rather than by organised groups. In these circumstances, the Court finds that the applicant would be able to seek the protection of the Iraqi authorities if he felt threatened and that the authorities would be willing and in a position to help him. Thus, the Court considers that he would not face a real risk of persecution or ill-treatment on the basis of his religious affiliation.", "98. Next, the applicant alleged that he would risk being sentenced to death by an Iraqi court as he had been a member of the Republican Guard and the Ba ’ ath Party.", "99. Although the Court does not question that the applicant has been a member of the Republic Guard and served in the Iraq-Iran war and the First Gulf War, it observes that the applicant, during the asylum interviews in 1993 and 1994, consistently held that he had never participated in combat or killed anyone since his tasks had mainly consisted in ensuring the functioning of transports and support to the front line. He also stated that he had never had any influence himself but only carried out orders from his superiors and that he had deserted from the army when ordered to carry out attacks on the Shi ’ as in 1992. The Court observes that the applicant has essentially maintained this account, stating that in 1988 he had been promoted to officer and thereafter he had been working with logistics. Furthermore, the applicant has at no point claimed that he is sought or wanted by the Iraqi authorities for any crime, indeed, he has consistently held that he left the country when ordered to carry out acts against international law. On the basis of this information, and noting that some former Republican Guards have been integrated into the new Iraqi army, the Court finds nothing to indicate that the applicant would risk being charged with any type of crime before the Iraqi courts, let alone the IHT/SICT, for having served in the Republican Guard. Consequently there is no real risk that he would be sentenced to death.", "100. As concerns the applicant ’ s membership in the Ba ’ ath Party, the Court observes that he has claimed to have been an “advanced sympathiser” and not a full member of the party, but that he had been given a “Friends of Saddam” card which entitled him to certain privileges. In his submissions before the Government in 2005, the applicant alleged that he had held a prominent position within the Ba ’ ath Party and that he was well-known and hated by many. Further, in his submission of 13 September 2006 to the Court, he specified that he had been an “advanced sympathiser” which meant that he had held a high position in the hierarchy. Here, the Court observes that there is relatively little information about the structure of the Ba ’ ath Party (see above § 5 7 ) but that it would appear that, on the one hand, an “advanced sympathiser” was not a full member of the party and rather low in the hierarchy whereas, on the other hand, a holder of a “Friends of Saddam” card was a person who had been a Party member for at least ten years. Thus, the Court finds that, on the basis of the information and evidence presented to it, it is not possible to establish whether or not the applicant was a full member of the Ba ’ ath Party or, if he was, what exact level he had attained within it. However, having regard to the fact that the applicant has consistently held that he has never met Saddam Hussein or been involved in any political activities, as well as his statement that most officers within the Republican Guard and some officers in the regular army received this special card, the Court considers it highly unlikely that he belonged to any of the higher levels of the Ba ’ ath Party. In any event, the Court observes that the Accountability and Justice Act has opened the door for most former Ba ’ ath Party members to apply for reinstatement into civil service positions. Moreover, the Act has introduced an element of personal responsibility thereby removing the idea of a “collective guilt” of all Ba ’ ath Party members. The Court further observes that the Iraqi parliament adopted an Amnesty Law in February 2008 (see above § 6 1 ) which has resulted in the release, so far, of over 120,000 detainees in Iraq. Having regard to the aforementioned and to the above finding of the Court that the applicant did not risk being charged with any type of crime before the Iraqi courts, the Court considers that the applicant does not face a real risk of being persecuted, and even less of being sentenced to death, for having been a member of the Ba ’ ath Party.", "101. The applicant has further alleged that he would risk being killed extrajudicially by Shi ’ a militia groups because he had been in the Republican Guard. In his submission of 13 September 2006 to the Court, the applicant claimed that Shi ’ a militia groups have tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or against the Shi ’ as in southern Iraq in 1991. Moreover, in his later submission to the Court he has added that, while working with logistics, he had had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them.", "102. As concerns this complaint, the Court first reiterates that, owing to the absolute character of the right guaranteed, Article 3 of the Convention may apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection ( H.L.R. v. France, cited above, § 40). The Court recognises that several Shi ’ a militia groups, and in particular the Mahdi Army, have sought revenge for previous wrong-doing against the Shi ’ a population without the Iraqi authorities having been able to prevent it. However, the Mahdi Army has, more than one year ago, introduced a cease-fire which is now in force for an indefinite period of time and, as a consequence, the sectarian violence has decreased significantly.", "103. In relation to the applicant, the Court considers that the very late addition to his submissions, about having written reports about Shi ’ a insurgency leaders, is not very credible as he did not mention this before the Swedish authorities or courts at any point but only in his last submission to the Court. In any event, the Court observes that the applicant has maintained all along, including before the Court, that from 1988 until he left Iraq, he had been working in a transport division with logistics and that he had deserted from the army because he did not want to take part in the attacks against the Shi ’ as in Al Ahwar. To the Court, this rather indicates that the applicant did not personally carry out any violent or criminal acts against the Shi ’ a population for which they would seek revenge. The mere fact of him having been in the Republican Guard is not sufficient to establish that he would face a real risk of being persecuted or attacked by Shi ’ a militia groups. This is in particular so having regard to the Mahdi Army ’ s cease-fire and the facts that it is more than 15 years since the applicant left Iraq and that he did not hold a prominent position within the Republican Guard or the Ba ’ ath Party.", "104. Lastly, the applicant has expressed his fear of being convicted a second time in Iraq for the murder of his wife. However, the Court reiterates that the crime took place in Sweden, that the applicant was tried and convicted in Sweden and that he has purged his sentence in Sweden. The Court also notes that, despite some uncertainties surrounding its current status, the Iraqi Penal Code of 1969 prohibits retrial in Iraq of a person who has been convicted by final judgment in another country (see above § 31). In any event, the Court considers that the applicant has not submitted sufficient evidence as concerns the alleged possibility of his retrial in Iraq and therefore this complaint is unsubstantiated.", "105. Having regard to all of the above, the Court concludes that substantial grounds for believing that the applicant would be exposed to a real risk of being killed or subjected to treatment contrary to Articles 2 or 3 of the Convention if deported to Iraq, have not been shown in the present case. Accordingly, the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention.", "II. RULE 39 OF THE RULES OF COURT", "106. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "107. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant is an Iranian national who was born on 12 October 1977 in Teheran and currently lives in Einsiedeln, Switzerland.", "A. Background and proceedings before the Swiss authorities", "1. The proceedings before the Federal Migration Board", "7. The applicant entered Switzerland illegally on 26 June 2011 and applied for asylum the next day. He had two hearings before the Federal Migration Board ( Bundesamt für Migration – hereafter “the Migration Board” ).", "8. The first hearing was a summary interview at the Migration Board ’ s “Centre for Reception and Procedure” ( Empfangs- und Verfahrenszentrum ) in Basel on 6 July 2011. The applicant gave an account of the alleged events in Iran leading to his escape from his home country. This account was summarised by the Migration Board ’ s interviewer in official minutes. At the beginning of this summary, the interviewer noted: “ For lack of staff, the facts - summarised under no. 15 of the minutes - were not established in detail .” ( “ Es wird aus Kapazitätsgründen auf eine vertiefte Abklärung zu Pt. 15 verzichtet. ” ). An interpreter was present during the hearing and the minutes were translated for the applicant prior to his signing.", "9. During the hearing the applicant stated that, following serious ballot ‑ rigging after the Iranian presidential elections on 12 June 2009, anti-regime demonstrations had started to take place. He had participated in almost all these demonstrations until the beginning of March 2011. He claimed that he and his friends had organised peaceful demonstrations every Tuesday. As the demonstrations had been brutally oppressed by the Iranian regime, he and his friends had documented the demonstrations and had circulated this documentation to people. He further claimed that during the last demonstration he had attended, at the beginning of March 2011, several of his friends had been arrested. He alleged that they had been tortured and that one of them had probably mentioned his name to the Iranian authorities and had told them about his participation in the demonstrations. Consequently, on 10 May 2011, a summons issued by the Revolutionary Court of Teheran had been delivered to his residence, namely his parents ’ house in Karaj, by a court courier. He had not been present at the time of delivery as he had been on a visit to his sister ’ s house in Teheran. The summons had ordered him to appear in court on 12 May 2011. Fearing that he might be arrested upon his appearance, he had not presented himself in court but had hidden at his sister ’ s home and at the homes of various friends in Teheran. As a result of his non-appearance before the court, agents of the secret service had come to his parents ’ house the following day (13 May 2011) in order to arrest him. Because of his absence, his father had been arrested instead. The applicant had been left a message that he should report to the district police, otherwise his father would remain in detention. For fear of arrest and on his family ’ s advice, he had fled the country without legal exit papers in June 2011.", "10. In order to support his account during the first hearing, the applicant submitted the allegedly original summons of the Revolutionary Court of Teheran of 10 May 2011. He also submitted documentary material pertaining to the anti-regime demonstrations, which had allegedly been produced by him and his friends.", "11. The second, more detailed hearing took place at the Migration Board ’ s office in Berne 21 months after the first hearing, on 5 April 2013. A member of the non-governmental Aid Organisation of the Protestant Church of Switzerland ( Hilfswerk der Evangelischen Kirche Schweiz ) was present as a neutral witness in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the minutes of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations. Again, an interpreter was present during the hearing and the minutes were translated for the applicant prior to his signing.", "12. The applicant again gave an account of the alleged events in Iran leading up to his escape. With regard to the events on the day when the summons had allegedly been delivered to his parents ’ house (10 May 2011), the applicant now described that members of the Ettelaad security service had come to his parents ’ house in his absence in order to search for him. They had searched the house, opening chests of drawers and cupboards. As they had been unable to find him, they had issued the summons while at his parents ’ house and had left it behind. Confronted with the fact that he had not mentioned the house search of 10 May 2011 during the first hearing, the applicant responded that he had in fact done so, that he had recounted the same facts during the first hearing and that it was not his fault that this fact had not been recorded in the minutes of the first hearing.", "13. Furthermore, asked about his hiding place prior to his escape from Iran, the applicant stated during the second interview that he had stayed at his sister ’ s home the whole time. When confronted with his testimony from the first hearing, the applicant explained that he had been with friends as well and added that these people had been friends from work and not friends he knew from the demonstrations.", "14. With regard to the aftermath of the last demonstration he had attended in March 2011, the applicant stated during the second hearing that he did not know that the Ettelaad security forces were planning to arrest him. He again alleged that one of the friends arrested during the demonstrations had told the security forces who had participated in these demonstrations. Asked when this friend who had given his name had been arrested, the applicant responded that he did not know and that it had not necessarily been this arrested friend directly who had given his name to the security forces. Arrests of that kind usually started a whole chain reaction: the arrested person would give some names, then these people would be arrested and questioned and give further names, and so on.", "15. Questioned further during the second hearing about any special occurrences with regard to his last demonstration in March 2011, the applicant stated that the demonstrations had all been rather similar. People had been arrested and agents of the government had beaten up people during the last demonstration just as during any other demonstration. Asked whether he knew the people who had been arrested, the applicant responded that he just knew these people from the street. They had not been people from his region. Teheran was a big city and people had come from everywhere. Confronted with his testimony from the first interview, in which he had claimed that friends of his had been arrested, the applicant stated that the people demonstrating together were all friends in a way and that he had used the term “friends” in that sense when giving his account of the events during the demonstrations.", "16. On 10 April 2013 the Migration Board dismissed the applicant ’ s request for asylum and ordered him to leave Switzerland by 7 June 2013. The Migration Board reasoned that the applicant ’ s statement of facts was not credible as his descriptions of the events in Iran had not been consistent during the two hearings. The descriptions diverged considerably from each other with regard to decisive points of the applicant ’ s story. During the first hearing, the applicant had neither mentioned the appearance of the Ettelaad security forces at his parents ’ house, nor had he mentioned the house search, nor the fact that it had been the Ettelaad who had issued a summons directly at his parents ’ house on 10 May 2011, but had simply stated that a courier of the court had brought the summons. Furthermore, the accounts of the applicant ’ s hiding prior to his escape from Iran diverged from each other, as the applicant had first stated that he had hidden at his sister ’ s home and at friends ’ homes, whereas he had claimed to have stayed exclusively at his sister ’ s home during the second hearing. Finally, the applicant had only mentioned the arrest of his friends during his last demonstration only in the account he had given during the first hearing and not during the second interview. The Migration Board took into consideration that the applicant had submitted some documentary material including the alleged summons of 1 0 May 2011, but was of the view that these documents could not dispel the doubts about the applicant ’ s account. The documentary material gave only a general account of the demonstrations, but not specifically anything about the applicant ’ s alleged participation, and a summons alone could not prove any public persecution.", "2. The proceedings before the Federal Administrative Court", "17. On 15 May 2013 the applicant, now represented by counsel, appealed against the decision of the Migration Board to the Federal Administrative Court ( Bundesverwaltungsgericht ). He asked the Federal Administrative Court to quash the decision of the Migration Board, to grant him asylum, to find that the execution of the expulsion order would be an improper and unreasonable measure, and to grant him legal aid.", "18. In his appeal the applicant claimed that upon the advice of his counsel he had phoned his family in Iran and had asked whether any further summons had been received. On that occasion he had learnt that he had again been summoned to appear before the Revolutionary Court of Teheran on 5 February 2013. He had also learnt that the Revolutionary Court had convicted him in absentia on 7 May 2013 because he had participated in demonstrations against the Iranian regime and had criticised the regime in slogans. The court had sentenced him to seven years ’ imprisonment and 70 lashes. The applicant claimed to be in possession only of copies of the summons of 5 February 2013 and the judgment of 7 May 2013 because his family suspected state surveillance and feared that the mail would be checked if they tried to send him the originals by post. The applicant submitted the copies of the alleged new summons and of the alleged judgment to the Federal Administrative Court. In his appeal, he also asked the Federal Administrative Court and the Migration Board whether the authenticity of the two documents could be assessed by the Swiss Embassy in Teheran if the originals were handed in or shown there.", "19. In his appeal the applicant also argued that the deviations between his two statements of the facts could be explained by the different nature of the two hearings. The first hearing had been only a summary hearing and the applicant had been asked not to go into detail. It was therefore understandable that he had not described the house search of 10 May 2011 until the second hearing. With regard to his hiding prior to his departure from Iran, his two reports were correct and consistent. He had stayed at his sister ’ s home but he had also met friends from work and spent time with them. With regard to the events during the last demonstration, he had in essence stated the same facts during the two hearings, namely that he and his friends had documented the demonstration and had handed out leaflets, that many participants, including his friends, had been arrested, and that he believed that one of the arrested persons had passed on his name to the Iranian authorities. The applicant further argued that when assessing his two statements, it had to be taken into consideration that almost two years had elapsed between the two hearings and that no one was able to describe events in exactly the same way after such a long time. Finally, the applicant claimed that the second hearing had not been fair, as the interviewer had constantly interrupted him and treated him as if he were lying.", "20. On 22 May 2013 the Federal Administrative Court delivered an interim decision in which it declined the applicant ’ s request for legal aid, reasoning that his application lacked any prospects of success. In its preliminary assessment of the case, the Federal Administrative Court found that the applicant had not convincingly shown that he was persecuted by the Iranian State. His statements of the facts as given during the two hearings by the Migration Board diverged from each other with regard to essential points and his story was therefore not credible. The summons of 5 February 2013 and the judgment of 7 May 2013 had no probative value as the applicant had submitted only copies of these documents.", "21. On 2 July 2013 the Federal Administrative Court dismissed the applicant ’ s appeal as manifestly ill-founded. In accordance with section 111 and section 111a of the Swiss Asylum Act of 26 June 1998 (hereafter “the Asylum Act”, see paragraphs 30ss. below ), the case was decided by a single judge and the judgment contained only a summary reasoning. An oral hearing was not provided for in the rules of procedure. In accordance with section 111a of the Asylum Act, the Federal Administrative Court also abstained from the possibility of exchanging observations between the parties. The Migration Board was hence not given an opportunity to comment on the submission of the copies of the alleged summons of 5 February 2013 and the judgment of 7 May 2013 or on the possibility of having the alleged original documents – which were allegedly in the possession of the applicant ’ s family – checked by the Swiss embassy in Teheran.", "22. The Federal Administrative Court decided that the applicant had no right to asylum. It further stated that there was no reason not to execute the expulsion order as the applicant had not been able to prove that he had been subject to state persecution in Iran. His accounts of the events during the two hearings diverged with regard to essential details and the applicant had not managed to explain these discrepancies to the Federal Administrative Court ’ s satisfaction. The time that had passed between the two hearings could not explain the contradictions, since the applicant had not been expected to describe the events in Iran in exactly the same way but rather in a consistent manner. Furthermore, contrary to the applicant ’ s allegation, there was no indication that the second hearing had been unfair. The hearing had been attended by a member of the Aid Organisation of the Protestant Church of Switzerland as a neutral witness. This person had not made any remarks about irregularities witnessed during the hearing, although he could have done so. The minutes had been translated for the applicant and signed by him. He had therefore had the opportunity to correct any statement had he found that it had not been noted down correctly.", "23. The court further found that it could not draw any conclusions from the submitted copy of the summons of 5 February 2013 or the copy of the judgment of 7 May 2013 in the applicant ’ s favour, as copies had no probative value. The court did not mention the first summons of 10 May 2011, the authenticity of which had not been questioned in the decision of the Migration Board.", "24. On 22 July 2013 the Migration Board issued a new expulsion order requiring the applicant to leave Switzerland before 19 August 2013.", "B. Proceedings and new submissions before the Court", "25. On 15 August 2013 the applicant lodged his application with the Court and asked for Rule 39 of the Rules of Court to be applied in order to stay the enforcement of his expulsion. He stated that he had participated in demonstrations against the Iranian regime following the presidential elections of 2009 up until March 2011 and that he had handed out leaflets on these occasions. He further alleged that the Ettelaad security forces had searched his parents ’ house with the purpose of arresting him. Moreover, he claimed that he had been summoned twice to appear before the Revolutionary Court of Teheran and that the same court had sentenced him in absentia on 7 May 2013 to seven years ’ imprisonment, the payment of a fine, and 70 lashes of the whip because of his participation in the demonstrations.", "26. In support of his claims the applicant attached to his application of 15 August 2013 documentary material on the demonstrations in Iran, written in Persian, copies of the alleged summonses of 10 May 2011 and 5 February 2013 and a copy of the alleged judgment of 7 May 2013.", "27. On 10 October 2013 the applicant informed the Court that he was now in possession of the original summons of 5 February 2013 and of the judgment of 7 May 2013, as his sister ’ s husband had finally dared to send the documents by special delivery in August 2013. He also provided the Court with English translations of the summons of 5 February 2013 and the judgment of 7 May 2013. A translation of the summons of 10 May 2011 was not submitted. A translation was included in the minutes of the applicant ’ s second hearing, however, and this had been submitted to the Court.", "28. According to the translation of the summons of 5 February 2013, the applicant was summoned to appear before the 10 th division of the Islamic Revolutionary Court of Teheran on 5 February 2013 at 9 a.m., because of “ participation in demonstrations against the public safety and the system of the Islamic Republic of Iran ”. The summons was signed by an “ investigating authority ” on 3 February 2013.", "29. The translation of the judgment of 7 May 2013 of the Revolutionary Court of Teheran reads in its material part :", "“Charge: Undertakings and activities against the sacred order of the Islamic Republic of Iran", "Judgement", "In the case of the accused Mr. M.A., the court – due to the charge sheet of the 10 th division of the public prosecutor ’ s office for the General and the Revolutionary Court of Teheran, due to the existing exhibits and his file, due to the credible report of the intelligence service and the clarification as well as the investigations of public prosecutor ’ s office mentioned above, due to the testimonies of the persons under arrest as well as due to the especially useful information on file, moreover because of the punishable participation in illegal gatherings, because of the disturbance of the peace and the system of the Islamic Republic of Iran, because of being a troublemaker and the writing of slogans, calling for resistance against the polity by distributing flyers and non-appearance before court despite being summoned, as well as due to the waiver of defence in court – comes to the conclusion that his guilt has been established.", "For these reasons, in application of Art. 502 of the Islamic law, he is sentenced to 7 years of imprisonment, 70 strokes of the whip and to a fine of 15 Million Rial which is to be paid to the treasury.", "An appeal against this judgment delivered in absentia is possible within ten days after disclosure. After this period of time, a request for reconsideration can be submitted to the competent courts of the province of Teheran. ”", "The translation also states that the judgment had been", "“disclosed on 15 May 2013 ”." ]

[ "II. RELEVANT DOMESTIC LAW", "30. The provisions applicable in the present case, concerning the right of foreigners to enter and to remain in Switzerland, are laid down in the Asylum Act of 26 June 1998 ( Asylgesetz, 142.31 – hereafter referred to as “the Asylum Act”) and in the Aliens Act of 16 December 2005 ( Bundesgesetz über die Ausländerinnen und Ausländer, 142.20 - hereafter referred to as “the Aliens Act”).", "31. Chapter 1, Section 2, of the Asylum Act stipulates that an alien who is considered to be a refugee is granted asylum and is entitled to remain in Switzerland. Chapter 1, Section 3, of the same Act states that the term “refugee” means aliens who are exposed to serious disadvantages or who have a reasonable fear of being exposed to such disadvantages in future in their home country or in their last country of residence on grounds of race, religion, nationality, membership of a particular social group or because of their political views. According to the same section, the term “serious disadvantages” is understood to mean a danger to life, limb or liberty, or measures that generate intolerable psychological pressure.", "32. Under Chapter 2, Section 7 of the Asylum Act, a refugee has to prove his status or at least has to provide credible evidence that he is a refugee within the meaning of Chapter 1, Section 3. Sufficient credible evidence is provided if the competent authorities are persuaded that it is more likely than not that a person is a refugee within the meaning of Section 3. Insufficient or inconsistent reasoning with regard to essential issues, inconsistency in respect of objective facts, or submissions which are substantially based on falsified pieces of evidence militate against the credibility of an asylum seeker ’ s submissions.", "33. As regards the enforcement of an expulsion order, Chapter 1, Section 5 of the Asylum Act provides that no one may be forced by any means to leave Switzerland and to return to a country in which his life, limb or liberty is threatened for a reason stipulated by Section 3 of the same Chapter (see above) – or a country which he risks being forced to leave for a country of that type – unless there are significant grounds for believing that a person is a threat to the security of Switzerland or a danger to the public because he has been convicted of a particularly serious crime. Chapter 2, Section 44 of the Asylum Act and Section 83 of the Aliens Act add that, in the event that the enforcement of the expulsion order is not permitted by law and in cases where the enforcement is unreasonable or impossible, an applicant is allowed to stay in Switzerland provisionally ( vorläufige Aufnahme ).", "34. Asylum decisions are taken by the Federal Migration Board (Chapter 2, Section 6a). If the Migration Board refuses to grant asylum, it issues an expulsion order and sets the date by which the country must be left (Chapter 2, Sections 44 and 45). The asylum seeker can appeal to the Federal Administrative Court against the Migration Board ’ s decision to refuse asylum and against the expulsion order (Chapter 8, Section 105 of the Asylum Act, Section 5 of the Federal Administrative Proceedings Act of 20 December 1968 ( Bundesgesetz über das Verwaltungsverfahren, 172.012) and Sections 82 and 83 of the Federal Court ’ s Act of 17 June 2005 ( Bundesgestz über das Bundesgericht, 173.110 ) ). The Federal Administrative Court decides as a first and final instance in such cases.", "III. RELEVANT COUNTRY INFORMATION", "1. The UN Human Rights Council, Report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran, 11 March 2014, A/HRC/25/75", "35. The Secretary-General ’ s above-cited report states:", "“I. 5. The United Nations human rights mechanisms continue to raise concerns about amputations, flogging, and increased application of the death penalty, arbitrary detention and unfair trials. Freedom of expression remained curtailed, with a large number of journalists still in prison and social media being blocked. Human rights defenders and women ’ s rights activists continue to face arrest and persecution. [ ... ].", "II. A. b. 10. [ ... ] The recurrence of cruel, inhuman or degrading punishment, such as amputation of limbs and flogging remains a cause for concern. The judiciary has frequently applied punishments which are prohibited by the ICCPR, to which Iran is a State party. The revised Islamic Penal Code provides for limb amputations for offences, including Moharebeh and theft and flogging for drinking alcohol, theft and certain sexual offences. On 7 January 2013, the Head of the Supreme Court of Iran defended punishments such as amputation, arguing that the proper implementation of Islamic law could prevent crimes. [ ... ].”", "2. The U.S. Department of State ’ s “Country Reports on Human Rights Practices 2013” for Iran", "36. This above- cited report states:", "“ Executive summary:", "[ ... ] The most egregious human rights problems were the government ’ s manipulation of the electoral process, which severely limited citizens ’ right to change their government peacefully through free and fair elections; restrictions on civil liberties, including the freedoms of assembly, speech, and press; and disregard for the physical integrity of persons whom it arbitrarily and unlawfully detained, tortured, or killed.", "Other reported human rights problems included: disappearances; cruel, inhuman, or degrading treatment or punishment, including judicially sanctioned amputation and flogging; politically motivated violence and repression, such as beatings and rape; harsh and life-threatening conditions in detention and prison facilities, with instances of deaths in custody; arbitrary arrest and lengthy pretrial detention, sometimes incommunicado; continued impunity of security forces; denial of fair public trials, sometimes resulting in executions without due process; the lack of an independent judiciary; political prisoners and detainees; [ ... ].", "Section 1. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment:", "The constitution prohibits all forms of torture “for the purpose of extracting confession or acquiring information,” but there were several credible reports that security forces and prison personnel tortured and abused detainees and prisoners. [ ... ]", "Common methods of torture and abuse in prisons included prolonged solitary confinement, rape, sexual humiliation, threats of execution, sleep deprivation, and severe and repeated beatings. There were reports of severe overcrowding in many prisons and repeated denials of medical care for prisoners [ ... ].", "The government defended its use of flogging and amputation as “punishment,” not torture. Judicially sanctioned corporal punishment included lashings and, for offenses involving multiple thefts, amputations. On October 23, the UN special rapporteur noted reports about limb amputations for the crime of theft and reports about the flogging of 123 persons between July 2012 and June 30, 2013, for such crimes as “sedition,” “acts incompatible with chastity,” drinking alcohol, “illicit” relationships, and nonpenetrative same-sex sexual activity [ ... ].", "Prison and Detention Center Conditions:", "Prison conditions were reportedly often harsh and life threatening. There were reports that some prisoners committed suicide as a result of the harsh conditions, solitary confinement, and torture to which they were subjected. Prison authorities often refused medical treatment for injuries prisoners reportedly suffered at the hands of their abusers and from the poor sanitary conditions of prison life. [ ... ].", "Section 1. d. Arbitrary Arrest or Detention:", "[ ... ] Authorities commonly used arbitrary arrests to impede alleged antiregime activities. Plainclothes officers often arrived unannounced at homes or offices, arrested persons, conducted raids, and confiscated private documents, passports, computers, electronic media, and other personal items without warrants or other assurances of due process. Individuals often remained in detention facilities for long periods without charges or trials and were sometimes prevented from informing others of their whereabouts for several days [ ... ].", "Section 1. e. Denial of Fair Public Trial: [ ... ], Trial Procedures:", "[ ... ] Political Prisoners and Detainees: Statistics regarding the number of citizens imprisoned for their political beliefs were not available. The ICHRI estimated there were 500 political prisoners in the country, including those arbitrarily detained for peaceful activities or the exercise of free expression. Other human rights activists estimated there could be more than 1,000 prisoners of conscience, including those jailed for their religious beliefs [ ... ]. During the year the government arrested students, journalists, lawyers, political activists, women ’ s activists, artists, and members of religious minorities (see sections 1.a. through 1.e., 6, and 7.a.); charged many with crimes, such as “propaganda against the system” and “insulting the supreme leader;” and treated such cases as national security trials [ ... ]. Political prisoners were also at greater risk of torture and abuse in detention. The government often placed political prisoners in prisons far from their homes and families. The government did not permit international humanitarian organizations or UN representatives to have access to political prisoners.", "Section 1. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence:", "The constitution states that “reputation, life, property, [and] dwelling[s]” are protected from trespass, except as “provided by law,” but the government routinely infringed on this right. Security forces monitored the social activities of citizens, entered homes and offices, monitored telephone conversations and internet communications, and opened mail without court authorization. There were widespread reports that government agents entered, searched, and ransacked the homes and offices of reformist or opposition leaders, activists, political prisoners, journalists, and their families to intimidate them [ ... ]. ”", "3. Report by “Freedom from Torture”: We will make you regret everything - Torture in Iran since the 2009 elections, March 2013, (http://www.refworld.org/docid/514088902.html)", "37. “Freedom from Torture” is a non-governmental medical foundation for the care of victims of torture in the United Kingdom. The organisation has been working for more than 25 years to provide direct clinical services for survivors of torture who arrive in the United Kingdom, as well as striving to protect and promote their rights. Its above- cited report on torture victims from Iran states:", "“ Key findings of the report:", "The detailed examination of evidence of detention and torture perpetrated in these cases in 2009-2011, as documented in the sample of 50 medico-legal reports (MLRs) prepared by Freedom from Torture, indicates that:", "Torture was a key tool of repression used by the Iranian authorities as part of their efforts to crush dissents in Tehran and elsewhere in the months leading up to and for an extended period following the presidential elections in June 2009;", "This crackdown involved torture – often during multiple detention episodes – of many people for whom the 2009 presidential election period was the first time they, or other family members, had engaged in any level of political or other form of activism;", "A wide range of physical, psychological and environmental torture methods were practised in a highly systematic way by torturers in Iran during this period;", "Torture was often used to obtain information about individuals and networks involved in organising political or other activity deemed to be ‘ anti-regime ’ and to force people to sign what they understood to be ‘ confessions ’ or other statements which were used against them in legal proceedings or which could be so used in the future;", "Half of the cases in this study were arrested in Tehran with the remainder in other provincial capitals and a small number in rural areas. In all cases, the reasons for detention and torture included a ‘ political ’ element, often at a very low level, even if this emerged after arrest for non-political offences or was imputed to the person on account of the activities of their family members or, in one case, a business associate. Twenty seven of the cases were arrested and detained while attending demonstrations and other protests following the presidential elections [ ... ].”", "4. The International Federation for Human Rights ’ and the Iranian League for the Defense of Human Rights ’ Submission on the Islamic Republic of Iran ’ s Compliance with ICCPR to the Human Rights Committee of the United Nations (103rd session, 17 October – 4 November 2011 in Geneva)", "38. In the above- cited submission, the non-governmental human rights organisations “International Federation for Human Rights” and “Iranian League for the Defense of Human Rights” list the sentences of numerous human rights activists, journalists, artists and students suspected of anti -regime protests and actions. Several of these sentences included long prison terms and severe flogging. The list in the report includes :", "“(p. 7. ) Other Women : Shadi Sadr and Mahbubeh Abbas-Gholizadeh, two founders of the “Stop Stoning to Death” Campaign were sentenced in absentia to six years of imprisonment with 74 lashes and two and a half years of imprisonment with 30 lashes, respectively, on 17 May 2010. They have both left Iran to avoid imprisonment [ ... ].", "(p. 27.) Artists: [ ... ] Mohammad Nourizad, a director and journalist, was arrested in December 2009 and sentenced to three and a half years ’ imprisonment and 50 lashes. He was released on 6 May 2011[ ... ].", "(p. 32.) Students : Plain-clothed security agents, members of the Special Squads of the Police and Special Squads of the Islamic Revolution Guards Corps brutally attacked some university dormitories and ransacked them in Tehran, Isfahan and Shiraz, in the aftermath of the June 2009 Presidential Election, as a result of which five students were killed in Tehran, two in Isfahan and two in Shiraz. In Tehran Dormitory, 100 students were arrested. However, rather than investigating the attacks and killings, military courts tried about 40 of them who had lodged complaints with the judiciary and sentenced them to punishments ranging from financial penalties, lashing and prison sentences from 3 to 10 months, in May 2011. Since then, several students have lost their lives in the protest demonstrations or in custody [ ... ].”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "39. The applicant claims that deportation to Iran would subject him to a real risk of being arrested and exposed to torture or inhuman and degrading treatment or punishment in violation of Article 3 of the Convention, which reads :", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "40. The Government contested that argument.", "A. Admissibility", "41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The submissions of the parties", "(a) The applicant", "42. The applicant argued that, if forced to return to Iran, he would face a real and serious risk of being arrested and tortured because of his participation in demonstrations against the Iranian regime and the distribution of critical leaflets during these demonstrations. The Iranian regime still had an interest in persecuting the participants in the demonstrations following the presidential elections of 2009. Citing Internet links on YouTube and the BBC, both in Persian, the applicant claimed that the speaker of the Iranian Ministry of Justice and the General Prosecutor had publicly announced on 21 July 2013 that participants in the demonstrations of 2009 who returned to Iran would be prosecuted for the rioting that occurred during these demonstrations. As his conviction by the Revolutionary Court of Teheran of 7 May 2013 showed, the Iranian regime also still had an interest in persecuting him personally.", "43. The applicant further claimed that he would be arrested upon his return to Iran because he had left the country illegally without an exit permit. Upon his arrest the Iranian authorities would immediately check his background and would find out about his conviction. The judgment of 7 May 2013 would consequently be executed and he would be exposed to a prison sentence of seven years and 70 lashes of the whip. Such punishment was excessive and inhuman. Besides, it was generally known, for example from reports by Amnesty International, that torture and ill- treatment was common in Iranian prisons.", "44. The applicant emphasised again that he had actively taken part in the post-election demonstrations against the Iranian regime. He claimed that in his absence his parents ’ house had been searched on 10 May 2011 by the Ettelaad security forces. A summons in his name had been delivered to his parents. As he had not obeyed the summons, his father had been arrested on 12 May 2011 and had been questioned about his son ’ s whereabouts. The applicant had subsequently hidden at his sister ’ s home in Teheran. On 4 June 2011 he had left Iran, had travelled through Turkey and other unknown countries, had entered Switzerland illegally on 26 June 2011 and had applied for asylum on 27 June 2011.", "45. The applicant claimed that he had done everything possible in the circumstances to substantiate the assertion that he would face a real and serious risk of torture if he returned to Iran. He was of the view that, essentially, he had explained to the Migration Board what had happened in Iran in a consistent way. The inconsistencies in his story concerned only minor events and were due to the fact that the two interviews with the Migration Board had been different in nature. While the first one had been a short summary interview, the second had consisted of detailed questioning. It was therefore logical that certain details of his story, like the house search of 2011, had only been mentioned during the second interview. Furthermore, it had to be taken into account that a period of almost two years had elapsed between the two interviews. Nobody could be expected to tell exactly the same story after such a long time.", "46. The applicant further emphasised that he had submitted supporting documents demonstrating his persecution by the Iranian regime. He had submitted the original of the summons from the Revolutionary Court of Teheran of 10 May 2011 to the Migration Board during the first interview. Furthermore, he had submitted a copy of the second summons from the Revolutionary Court of Teheran of 5 February 2013 and a copy of the conviction issued by the Revolutionary Court of Teheran of 7 May 2013 to the Federal Administrative Court upon his appeal. He claimed that these documents had been largely ignored by the Swiss authorities, although they would have been capable of dispelling any doubts regarding his reported persecution in Iran. He further claimed that he had not been able to submit the originals of the summons of 5 February 2013 and of the judgment of conviction of 7 May 2013 prior to delivery of the judgment of the Federal Administrative Court because his family had not been able to send the originals immediately. They had been short of time and were afraid that despatch of the originals by mail would be monitored by the Iranian authorities. By the time his case was being decided by the Federal Administrative Court, his family had sent him only the copies. The copies were therefore the only evidence he had been able to submit to the Federal Administrative Court in order to support his claims. In reply to the Government ’ s submission that he had not explained by what means the copies had been sent to him, the applicant had stated that they had been sent by email.", "47. The applicant further pointed out that he had tried everything possible in the circumstances to dispel any doubts regarding the authenticity of the summons and the judgment. He had suggested to the Federal Administrative Court that the originals of the summons and the Iranian conviction could be taken to the Swiss embassy in Teheran in order to have the authenticity of the documents checked. He complained that the Federal Administrative Court had not reacted to this suggestion but had swiftly delivered its judgment without even asking the Migration Board for its view on the matter. Given that the Federal Administrative Court had not reacted to the applicant ’ s suggestion, his family had not dared to take the documents to the embassy on their own initiative, firstly because it was not possible to enter the embassy without being invited and secondly because there would have been a high risk that his family members would have been asked by the Iranian guards in front of the embassy why they wished to go inside. His sister had therefore kept the documents safe and had waited for an invitation to take them to the embassy. When she was informed that the applicant ’ s request for asylum had been rejected by the Federal Administrative Court, she had taken the documents to her parents ’ house in Karaj. In August 2013 the husband of another of the applicant ’ s sisters had finally dared to send the originals to the applicant.", "( b ) The Government", "48. The Government contested the applicant ’ s arguments. They were of the view that there was no real risk that the applicant would be subjected to treatment contrary to the guarantees of Article 3 if deported to Iran. The Government shared the view of the Migration Board and the Federal Administrative Court that the applicant ’ s account of events in Iran was not credible. They emphasised that the inconsistencies between the applicant ’ s two accounts concerned the description of the delivery of the first summons, the search of the applicant ’ s parents ’ house, the details of his hiding prior to his escape from Iran and the arrest of friends during his last demonstration. The discrepancies hence all concerned decisive points of the applicant ’ s story.", "49. The Government also shared the view of the Migration Board that the summons of 10 May 2011 could not, in isolation, prove a risk of persecution in Iran. They argued that because of the implausibility of the applicant ’ s story, there was also no absolute necessity to verify the authenticity of the copies of the summons of 5 February 2013 and of the judgment of 7 May 2013. The Government argued that such documents could be purchased in Iran. Moreover, they were of the view that the applicant should have been obliged to present the originals of the judgment of 7 May 2013 before the Federal Administrative Court, as the original of a judgment is handed out to convicted persons even in Iran. Should the family of the applicant truly have feared reprisals had they sent the originals to the applicant, the applicant could at least have explained by which means he had received the copies. Such information would have been very helpful as the copies showed no trace of submission by fax.", "50. The Government further argued that the applicant had been represented before the Federal Administrative Court by counsel with experience in asylum cases. In the Government ’ s view, after the interim decision of the Federal Administrative Court, counsel must have been aware that the Federal Administrative Court would not regard the copies as proof in its final decision. The applicant could thus have submitted the originals to the Federal Administrative Court, so that the court could have verified the authenticity of the document. Besides, the applicant could have asked his sister, who lived in Teheran, to take the original documents to the Swiss embassy in Iran, instead of asking the Federal Administrative Court to have the authenticity and the accuracy of the concerned documents verified in that embassy.", "51. The Government made no further comments on the applicant ’ s submission that the originals of the summons of 5 February 2013 and the judgment of 7 May 2013 had been in his possession since August 2013, but referred to the comments made with regard to the copies of these documents.", "2. The Court ’ s assessment", "(a) Recapitulation of the relevant principles", "52. The Court reiterates that Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention to control the entry, residence and expulsion of aliens ( R.C. v. Sweden, no. 41827/07, § 48, 9 March 2010; see also Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII ). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces an individual and real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 ).", "53. In order to determine whether there is an individual, real risk of ill ‑ treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country bearing in mind the general situation there and his personal circumstances ( El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 213, ECHR 2012; see also Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215 ).", "54. With regard to the material date, the existence of such individual, real risk of ill-treatment must be assessed primarily with reference to the facts which were known or ought to have been known to the Contracting State at the time of expulsion ( Saadi, cited above, § 133). However, since the applicant has not yet been deported, the material point in time must be that of the Court ’ s consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive ( Chahal v. the United Kingdom, 15 November 1996, § 86, Reports of Judgments and Decisions 1996 ‑ V ).", "55. With regard to the burden of proof with respect to the risk of ill ‑ treatment the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies. In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it ( N. v. Sweden, no. 23505/09, § 53, 20 July 2010 ).", "(b) Application of these principles to the present case", "56. In the present case, the Court observes at the outset that the applicant is to be returned to a country where by all accounts the human rights situation gives rise to grave concern. It is evident from the current information available on Iran (as set out above in paragraphs 35-38 ) that the Iranian authorities frequently detain and ill-treat persons who peacefully participate in oppositional or human rights activities in the country and that the situation has not eased since the post-election demonstration in 2009. The Court has already noted in its recent case-law on expulsion to Iran ( see S.F. and Others v. Sweden, no. 52077/10, § 63, 15 May 2012, and R.C. v. Sweden, no. 41827/07, § 49, 9 March 2010 ) that it is not only the leaders of political organisations or other high-profile persons who are detained : anyone who demonstrates or in any way opposes the current Iranian regime may be at risk of being detained and ill-treated or tortured. The recent reports on the human rights situation in Iran show that the Court ’ s assessment in the case-law referred to above still applies.", "57. Whilst being aware of the reports of serious human rights violations in Iran as set out above, the Court does not find them to be of such a nature as to show, as they stand, that there would be as such a violation of the Convention if the applicant were to return to that country. The Court has to establish whether or not the applicant ’ s personal situation is such that his return to Iran would contravene Article 3 of the Convention (see S.F. and Others v. Sweden, cited above, § 63; see also R.C. v. Sweden, cited above, § 49 ).", "58. The Court notes that, as stated in the applicant ’ s submission, he was sentenced in absentia to seven years ’ imprisonment, the payment of a fine and 70 lashes of the whip because of his participation in anti-regime demonstrations. The Court considers that if the applicant ’ s punishment, as he claimed, were to be enforced, such extensive flogging would cause deliberate and severe physical suffering of a severity that would have to be regarded as torture within the meaning of Article 3 of the Convention. As the applicant left Iran without an exit visa and without a passport, he is likely to be arrested upon his return to Iran, where his background would be checked and any conviction would be discovered immediately (see the summary and the assessment of the U.K. Home Office ’ s Country of Origin Information Report on Iran from August 2009 in R.C. v. Sweden, cited above, § § 35 and 56, 9 March 2010). The sentence is therefore likely to be enforced upon his return. Moreover, reports on the prison conditions of political prisoners in Iran in general (see paragraphs 35-38 above) show that the applicant would be exposed to inhuman and degrading treatment and to the risk of being tortured if his prison sentence were to be enforced.", "59. In determining whether the applicant has adduced sufficient evidence to prove that he would be exposed to a real risk of treatment contrary to Article 3 of the Convention, the Court agrees with the national authorities that the applicant ’ s story manifests some weaknesses, especially when it comes to his account of the submission of the first summons and the search of his parents ’ house on 10 May 2011. The Court further agrees with the national authorities that the discrepancies cannot be explained by the applicant ’ s allegation that the interviewer at his second hearing was biased. The fact that a neutral witness from a non ‑ governmental aid organisation was present during the hearing and that this witness had no cause to document any irregular procedural events in the minutes of the hearing are strong indicators that the interview was carried out in a fair way.", "60. The Court notes, however, that the credibility of the accounts the applicant gave during the two interviews cannot be assessed in isolation but must be judged in the light of the further explanations given by the applicant. The Court disagrees with the Swiss authorities in so far as the latter considered that these explanations were generally not sufficient to dispel the doubts about the veracity of his story. It agrees with the applicant that the difference in the nature of the two hearings cannot be disregarded when assessing the credibility of his accounts. It is clear from the interviewer ’ s own comment in the minutes of the first hearing ( “ For lack of staff, the facts summarised under no. 15 of the minutes were not established in detail .” ) that during the first interview the applicant was questioned in only a cursory way and was expected to give only a summarised account of the events leading to his escape from Iran. The detailed enquiries about specific points concerning events in Iran during the second interview, on the other hand, show that the applicant was expected to give an in - depth account of the events. This difference may well explain some of the major discrepancies between the applicant ’ s two accounts, which do not necessarily have to be interpreted as contradictory statements but may result from the fact that the applicant gave a compressed and abridged account of the events during the first hearing. This is especially true with regard to the applicant ’ s omission to mention the house search of 10 May 2011 during the first hearing and the fact that he plainly stated during the first hearing that he had hidden at his sister ’ s home and at friends ’ homes before his departure from Iran and explained only during the second hearing that he had indeed hidden with his sister but had also spent time with friends during that period.", "61. The Court further agrees with the applicant that the fact that the first hearing was held almost immediately after his arrival in Switzerland whereas the second hearing took place some two years after his departure from Iran, also goes some way towards explaining the discrepancies between the two accounts given by the applicant.", "62. Furthermore, the Court does not agree with the Swiss Government that, merely because some of the documents were copies and on the ground of a generalised allegation that such documents could theoretically have been bought in Iran, the question of whether or not the applicant was able to prove that he would face treatment contrary to Article 3 of the Convention could be decided solely on the basis of the accounts he gave during the two interviews, without having regard to the documents submitted in support. This approach disregards the particular situation of asylum seekers and their special difficulties in providing full proof of the persecution in their home countries (see paragraph 5 5 above ). The veracity of the applicant ’ s story must therefore also be assessed in the context of the documents submitted.", "63. It must further be noted that the applicant ’ s sentencing to a long prison term and 70 lashes of the whip is not implausible in itself. As shown above (see paragraph 3 7 ) it is not only the leaders of political organisations or other high-profile persons who risk detention and ill ‑ treatment or torture but rather anyone who demonstrates or in any way opposes the current Iranian regime. Furthermore, flogging is a common punishment in Iran, not only for ordinary crimes like theft or adultery, but also for political convictions (see paragraphs 3 5 and 38 above ). It is therefore possible that the alleged sentence was meted out to the applicant for participating in anti ‑ regime demonstrations and for handing out leaflets.", "64. In addressing the question whether the summons of 10 May 2011, the copy of the summons of 5 February 2013 and the copy of the judgment of 7 May 2013 were authentic documents or copies of authentic documents, the Court considers that it cannot decide this question itself. However, it is of the view that by submitting the documents in question the applicant did everything that could be expected in his situation in order to prove his conviction for participating in anti-regime demonstrations in Iran, while on the other hand the national authorities – that is to say the Swiss Government – did not substantively challenge the authenticity of the documents.", "65. With regard to the summons of 10 May 2011, the applicant had already submitted an allegedly original document during his first hearing. The document was therefore provided to the national authorities as early as possible. Neither the Migration Board nor the Federal Administrative Court challenged the authenticity of the summons. The Migration Board did not consider this question as it deemed the applicant ’ s account to be inconsistent and was therefore of the view that a summons alone could not prove the applicant ’ s persecution anyway. The Federal Administrative Court did not mention the summons of 10 May 2011 in its judgment at all. There is no indication that the Federal Administrative Court checked the authenticity of the summons or the assertion that the Swiss embassy in Teheran was contacted for help by the Federal Administrative Court. The one and only party to challenge the authenticity of the summons was the Swiss Government in their observations before this Court, in which they called into question the authenticity of the summons with the generalised allegation that documents of such kind could be purchased in Iran. The Government did not provide any reasons as to why they believed that the summons in question was falsified, however, alleging merely that the applicant ’ s story was not credible. As noted above, the Court does not share the view that the discrepancies in the applicant ’ s accounts were of such a serious nature that they could allow the documents submitted by the applicant to be ignored, but considers that they could to a considerable degree in fact be dispelled by the applicant ’ s further explanations. Consequently, as there is no indication that the Government tried to verify the authenticity of the summons through specialists or with the help of the Swiss embassy in Teheran, the Government did not challenge the authenticity of the documents in a proper manner. The Court is therefore of the view that the summons of 10 May 2011 cannot reasonably be disregarded. The summons matches the applicant ’ s account of the events of 10 May 2011 in Iran and therefore adds to the plausibility of his story.", "66. With regard to the copies of the summons of 5 February 2013 and the judgment of 7 May 2013, the Court agrees with the Government that submission of the originals of these documents would undoubtedly have constituted better proof in support of the applicant ’ s cause. However, it has to be recognised that the applicant gave reasonable explanations as to why he provided only copies during the proceedings before the Federal Administrative Court and why he could not provide the originals at that time. The applicant explained that he had only learnt about the existence of the second summons and of the judgment in absentia when he called his family on his lawyer ’ s advice when preparing his application to the Federal Administrative Court. As the applicant was not represented by counsel until that stage, this explanation seems plausible. Furthermore, the applicant explained that his family was too afraid to send the originals by post. Having in mind the reports on the surveillance of houses and of correspondence by the Iranian authorities (see paragraph 3 6 in fine above ), the applicant ’ s assertion that his family had been too afraid to send the originals by mail is also plausible. The same holds true for the applicant ’ s assertion that his sister did not dare to take the originals to the Swiss embassy on her own initiative without an invitation to do so, as she feared being questioned and checked out by the Iranian guards in front of the embassy if she did not have an official appointment. It must also be taken into account that under the circumstances described by the applicant, the time period between the alleged conviction (7 May 2013) and the judgment of the Federal Administrative Court (2 July 2013) was a relatively short one in which to acquire original documents from the country from which the applicant had fled. The applicant therefore gave a credible explanation as to why he had not been able to provide the Federal Administrative Court with the originals of the documents submitted.", "67. Nonetheless, neither the Federal Administrative Court nor the Swiss Government has provided any reasons why copies could not be taken into account at all in the applicant ’ s favour. The Government merely complained that during the domestic proceedings the applicant had not given any explanations as to how he had acquired the copies and that the copies did not show any traces of submission by fax. The Court agrees with the Government that such explanations would have been helpful and would have added to the credibility of the applicant ’ s story. However, it must be pointed out that the applicant was not asked to provide any information about the whereabouts of the copies by the Federal Administrative Court, because that court simply maintained that, being copies, the submissions did not have any probative value. It must furthermore be noted that during the proceedings before this Court, the applicant satisfactorily explained the manner in which he received the copies, namely by stating that he had received them by email.", "68. The Court further notes that the applicant was deprived of additional opportunities to prove the authenticity of the second summons and the Iranian conviction before the national authorities because the Federal Administrative Court ignored the applicant ’ s suggestion of having the credibility of the documents further assessed. It did not follow up the applicant ’ s proposal to submit the copies to the Migration Board for further comments, but instead decided directly on the basis of the applicant ’ s file and his appeal. Furthermore, the Federal Administrative Court, without giving any reasons, neither followed up the applicant ’ s suggestion to ask the Swiss embassy in Teheran whether the alleged originals could be handed over to it by the applicant ’ s relatives, nor did it ask the embassy for any help in assessing whether the copies could have been produced from an original summons and an authentic conviction, nor is there any indication that the Federal Administrative Court checked whether the documents showed any indication of being copies of falsified documents. Furthermore, the Government did not respond to the applicant ’ s announcement during the exchange of observations that he was now in possession of the originals of the summons and the judgment and could submit them to the Migration Board if the Government so wished. The applicant was hence deprived of any further method of proving that he truly was persecuted by the Iranian regime.", "69. In the light of all the above circumstances, the Court concludes that the applicant did adduce evidence capable of proving that there are substantial grounds for believing that, if he were to be expelled, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention and he must be given the benefit of the doubt with regard to the remaining uncertainties. The Government on the other hand have not dispelled any doubts that the applicant would face treatment contrary to Article 3 if expelled to Iran. Accordingly, the Court finds that the implementation of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION", "70. The applicant further complained under Article 13 read in conjunction with Article 3 of the Convention that he had no effective domestic remedy through which to assert his claim that he had been summoned and sentenced in absentia to seven years ’ imprisonment and 70 lashes of the whip by the Revolutionary Court of Teheran and would therefore be exposed to the risk of treatment contrary to Article 3 of the Convention. Article 13 reads:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "71. The Court has found in paragraphs 62 -6 9 above that the Federal Administrative Court gave no convincing reason for not taking into account the alleged summons of 10 May 2011, the copy of the alleged summons of 10 February 2013 and the copy of the alleged judgment of 7 May 2013 and that the veracity of the applicant ’ s account could not be assessed without having regard to the documents the applicant submitted to the domestic authorities. While finding this complaint admissible, the Court does not consider it necessary to examine the applicant ’ s complaint under Article 13 taken in conjunction with Article 3 of the Convention, since it raises no separate issue in the circumstances of the present case ( compare, among other authorities, Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, § 227, 28 February 2012, and Ermakov v. Russia, no. 43165/10, § 232, 7 November 2013 ).", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "72. The applicant also complained under Article 6 of the Convention that the Migration Board and the Federal Administrative Court violated his right to a fair trial. The Court notes that this provision does not apply to asylum proceedings as they do not concern the determination of either civil rights or obligations or of any criminal charge ( see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "73. The applicant further complained that the decision of the Migration Board and the judgment of the Federal Administrative Court infringed his rights under Article 2, Article 5 and Article 10 of the Convention. He did not provide any specific arguments as to how the Swiss authorities had violated these rights and why he thought that these Convention rights had been infringed. It follows that these complaints are not substantiated. They are therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. RULE 39 OF THE RULES OF COURT", "74. The Court points out that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "75. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above ) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection ( compare, mutatis mutandis, A.A. v. Switzerland, no. 58802/12, § § 64-65, 7 January 2014, and F.G. v. Sweden, no. 43611/11, §§ 46-47, 16 January 2014 ).", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. The applicant claimed 8,168 Swiss francs (CHF) (approximately 6, 710 euros (EUR) ) in respect of pecuniary damages, arguing that he had lost his job due to the negative decision of the Federal Administrative Court and should therefore be reimbursed for the loss of his monthly salaries of CHF 4,084 for November and December 2013. He further asked the Court to award a sum which he left to the Court ’ s discretion in respect of non ‑ pecuniary damage.", "78. The Government were of the view that even in the event of a violation of the Convention, there would be no sufficient link between such violation and the loss of the applicant ’ s salaries. The Government were further of the view that the finding of a violation as such would constitute sufficient compensation for non-pecuniary damage.", "79. The Court does not discern a sufficient causal link between the potential violation found and the pecuniary damage alleged; it therefore rejects this claim. In view of the conclusions above (see paragraph 6 9 ) the Court considers that its finding that the implementation of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention constitutes sufficient just satisfaction and therefore also dismisses the applicant ’ s claim for non-pecuniary damage (see also F.N. and Others v. Sweden no. 28774/09, § 84, 18 December 2012 ).", "B. Costs and expenses", "80. The applicant also claimed CHF 2,940 (approximately EUR 2,415) in respect of legal fees and expenses incurred in the asylum proceedings before the domestic authorities and before this Court. The sum was composed of a fee of CHF 300 for the first hour of advice by the applicant ’ s lawyer, fees for 20 hours of further advice and other legal work by the applicant ’ s lawyer at the counsel ’ s tariff of CHF 100 per hour, CHF 600 for court fees and CHF 40 covering the costs for telephone, copies, etc. The applicant submitted a list of his counsel ’ s tariffs which substantiated these claims.", "81. In his further observations of 23 December 2013, the applicant informed the Court that the Federal Administrative Court calculated lawyers ’ fees and expenses at a minimum standard rate of CHF 150 per hour. The applicant was therefore of the view that fees and expenses should be compensated on that basis. He therefore claimed CHF 300 for the first hour of advice, CHF 3,00 0 for the above - mentioned further 20 hours of advice, plus CHF 60 for costs of telephone, copies, etc., CHF 600 for court fees and CHF 450 for three hours of further advice during the proceedings before this Court in November and December 2013, which amounts to a total of CHF 4,410 (approximately EUR 3,623 ).", "82. The Government were of the view that in accordance with Rule 60 of the Rules of Court, the applicant could only claim the costs and expenses actually incurred. The Government therefore asked the Court to award only the CHF 2 ,940 which the applicant had requested in his observations of 10 October 2013, should the Court find a violation of the Convention.", "83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking account of the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,415 in accordance with the actual tariffs of the applicant ’ s counsel, covering costs under all heads, plus any tax that may be chargeable to the applicant.", "C. Default interest", "84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1962 and lives in Sweden.", "11. He entered Sweden on 16 November 2009 and applied for political asylum.", "12. On 19 February 2010, counsel appointed the applicant made written submissions to the Migration Board ( Migrationsverket ) in which he developed the grounds for the applicant’s request for political asylum.", "13. On 24 March 2010 the Migration Board held an oral interview with the applicant in the presence of his counsel and an interpreter. The applicant handed over a declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised. The Migration Board official therefore started the interview by asking about that matter. The applicant replied that it was a private matter “in [his] heart”, adding: “It has nothing to do with this but if you want to ask questions you may. All problems in my home country are caused by Islam entering Iran ...” The Migration Board official explained that the reason he was asking questions about it was that he had interpreted the certificate as though the applicant had relied on his conversion as a ground for asylum. The applicant stated: “No, it is not something I want to rely on. It is something private.” The Migration Board official then suggested a break in the interview in order for the applicant and his counsel to confer. After a ten-minute break, counsel stated: “The applicant wants to underline that he has not changed religion in order to enhance his chances of obtaining a residence permit but out of personal conviction.” When asked when he had converted, the applicant replied that this had happened after he had arrived in the Swedish town of X, where there were not many Iranians. He had got to know a person who went to church four times a week. This person knew that the applicant hated Islam. The applicant continued: “I do not regard Christianity as a religion.” When asked why that was so, the applicant replied: “If regarded as a religion, it would be like Islam, but Christianity is about a kind of love you have for God.” He explained that he had been going to the congregation’s gatherings two to four times per week and that he read the Bible. The applicant gave examples of miracles and prophecies from the Bible which had attracted him to Christianity. The Migration Board official asked why, if the applicant did not wish to rely on his conversion as a ground for asylum, he had nevertheless handed in the certificate from the pastor, to which the applicant replied: “I don’t know. I never asked for it and I had not even considered handing it in, but you wanted it. They gave all converts a certificate like that.”", "14. The rest of the interview dealt with the applicant’s political past. The applicant explained that in Iran he had worked with persons connected to different universities who were known to oppose the regime. He had mainly worked on creating and publishing web pages. He and one of the other persons had been arrested in April 2007. He had been released after twenty-four hours and then hospitalised for ten days due to high blood pressure.", "15. Before the elections on 12 June 2009, the applicant had worked with the Green Movement, who had supported Mousavi for the presidential position, by spreading their message via the Internet. The day before the elections, he and his friends had been arrested, questioned and detained in the polling station overnight.", "16. After the elections, the applicant had participated in demonstrations and other activities. He had been arrested once again in September 2009 and imprisoned for twenty days. He had been ill-treated in prison. In October 2009 he had been taken before the Revolutionary Court, which had released him after a day on condition that he cooperate with the authorities and spy on his friends. He had agreed to the demands and given his business premises as a guarantee. He had also assured them that he would not participate in any demonstrations and that he would respond to their summons. Following his release in a park, he had found out that his business premises had been searched. He had kept politically sensitive material there, which the authorities must have noticed, and his passport and other documents were missing.", "17. Subsequently, the applicant was summoned to appear on 2 November 2009 before the Revolutionary Court. He had contacted a friend who, in turn, had obtained the help of a smuggler to enable him to leave the country. The applicant submitted a summons from the Revolutionary Court dated 21 October 2009 stating that he should present himself at Evin Prison in Teheran on 2 November 2009.", "18. The interview before the Migration Board lasted approximately two hours and the record was subsequently sent to the applicant and his counsel for comment. Counsel commented that the applicant had not read the certificate from the congregation’s pastor before the interview as it had not been translated and that the applicant intended to submit the formal baptism certificate.", "19. On 29 April 2010 the Migration Board rejected the applicant’s request for asylum. By way of introduction, it stated that, while the applicant had not proven his identity or citizenship, he had established the probability thereof.", "20. As regards the request for political asylum, the Migration Board held that participation in demonstrations or affiliation with the Green Movement could not, of itself, give rise to a risk of persecution, ill-treatment or punishment on his return to Iran. The Migration Board noted that the applicant had changed his story in some parts during the proceedings, and in particular he had changed his statements concerning the number of times he had been arrested. Furthermore, he had not been able to name the park where he had been released in October 2009. Thus, the Migration Board found reason to question whether he had been arrested at all. The Migration Board further considered that the applicant’s political activities had been limited. After the questioning in 2007 and until the elections in 2009, he had been able to continue working on the web pages that contained the critical material, even though, according to the applicant, the authorities were already at that time aware of his activities. For these reasons, the Migration Board found that the applicant’s activities or the material he had in his possession could not have been of interest to the authorities.", "21. As to the applicant’s conversion to Christianity, the Migration Board noted that the conversion and baptism had not taken place in the Church of Sweden and that the applicant had not handed in any proof of his baptism. The certificate from the congregation’s pastor could be regarded only as a plea to the Migration Board that the applicant should be granted asylum. The applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his new faith was a private matter. Pursuing his faith in private was not found to be a plausible reason for believing that he would risk persecution upon return. In conclusion, the Migration Board found that the applicant had not shown that he was in need of protection in Sweden.", "22. The applicant appealed to the Migration Court ( Migrationsdomstolen ), maintaining his claims and relying on both political and religious grounds for asylum. As regards the latter he handed in a baptism certificate dated 31 January 2010. He reacted against the decision of the Migration Board, which in his view implied that a conversion within a “free church” was of less relevance than if it had been within the Church of Sweden. He explained that the reason he had not initially wished to rely on his conversion was that he did not want to trivialise the seriousness of his beliefs.", "23. On 16 February 2011 the Migration Court held an oral hearing in the presence of the applicant, his counsel, an interpreter and a representative of the Migration Board.", "24. The Migration Court did not question the fact that the applicant, at the time, professed the Christian faith, but found that this, by itself, was not enough to consider him in need of protection. It referred to the United Kingdom Home Office’s operational guidance note of January 2009.", "25. The applicant stated that he did not wish to rely on his conversion as a reason for asylum as he considered it something personal. He added that “it would, however, obviously cause [him] problems upon return”.", "26. In respect of his political past he explained, inter alia, that he had had contact with the student movement and quite a lot of students and had helped them with their home pages. His computer had been taken from his business premises while he was in prison. Material that was critical of the regime was stored on his computer. While he had not personally criticised the regime, or President Ahmadinejad, or the highest leaders, the applicant had visited some websites and had received cartoons via email. Therefore, in his view, there was enough evidence to prove that he was an opponent of the system. It was much the same as the material he had had on his computer in 2007.", "27. The summons to appear before the Revolutionary Court on 2 November 2009 was also submitted to the Migration Court. The applicant explained that the summons had been served at his home and that his sister had brought it to him. He had left the summons with a friend when he left Iran. Subsequently, the said friend had sent it to another friend, who was going to Ukraine, and who had made sure that the summons was sent to the applicant in Sweden. He had not been summoned again and his family had not been targeted. Something might have happened, though, that he was not aware of and that his family did not wish to burden him with.", "28. On 9 March 2011 the Migration Court rejected the appeal. It observed that the applicant was no longer relying on his religious views as a ground for persecution and it did not refer further to this issue in its conclusions.", "29. The Migration Court found that the applicant’s story in support of his request for political asylum had been coherent and trustworthy on the most essential points. It found that the uncertainties that had been pointed out by the Migration Board had been satisfactorily explained. However, as regards the summons to appear before the Revolutionary Court, the Migration Court found, regardless of the authenticity of the document, that it could not by itself substantiate a need for protection. The Migration Court pointed out in this respect that the document was merely a summons and that no reason had been given as to why the applicant should present himself at Evin Prison. Moreover, the information concerning the applicant’s political activities had generally been vague and lacking in detail. The applicant had only stated that he had participated in the campaign for the opposition before the elections in 2009 by joining demonstrations and having contact with the student movement and students in order to help them with their web pages. Furthermore, the applicant had stated that the material he had had in his possession when he was questioned in 2007 had not differed from the material he had in 2009. These circumstances, together with the fact that he had not been summoned again to appear before the Revolutionary Court after November 2009 and that his family had not been targeted, made the Migration Court doubt that his political activities had been of such a nature and extent as to have resulted in the consequences alleged. The Migration Court found that the applicant had exaggerated the importance of his political activities and their consequences and therefore also the authorities’ interest in him. For these reasons, it considered that the applicant had not proved that the Iranian authorities had a special interest in him and that therefore he was in need of protection.", "30. On 30 March and 19 April 2011 the applicant requested leave to appeal to the Migration Court of Appeal ( Migrationsöverdomstolen ). He maintained his need for political asylum. He also alleged that before the Migration Court he had relied on his conversion. He submitted that the latter issue had been sensitive for him, that he had considered it a private matter and had not wanted to tarnish the seriousness of his belief. This was why he, in response to a direct question by the Migration Court, had stated that he was no longer relying on his conversion as a ground for asylum. After the oral hearing before the Migration Court he had become a member of another Christian congregation and had taken part in an initiation ceremony broadcast on the Internet. His fear that his conversion had become known to the Iranian authorities had therefore increased. He enclosed a letter of 13 April 2011 from his new congregation which supported his explanation. In particular it stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about Christianity, and that he took part in church services, prayer meetings and social activities. It also stated that he became a member of the congregation in February 2011 and that his Christian beliefs were no longer private as the services he attended were broadcast on the Internet.", "31. On 8 June 2011 the Migration Court of Appeal refused the applicant’s request for leave to appeal. The removal order thus became enforceable.", "32. On 6 July 2011 the applicant requested the Migration Board to stay the enforcement of his expulsion and to reconsider its previous decision in the light of new circumstances. He stated, inter alia, that the act of conversion from Islam to another religion was taboo and punishable by death in Iran. The applicant submitted the above-mentioned letter of 13 April 2011 from his new congregation.", "33. On 13 September 2011 the Migration Board refused to re-examine the applicant’s request for asylum based on his conversion. The Migration Board noted that, in the original asylum proceedings, the applicant had stated that he had been baptised and had converted to Christianity. He had also stated that his conversion was a personal matter which he did not wish to rely on as a ground for asylum. The Migration Board found it noteworthy that the applicant now raised the question of conversion, when he had been given the chance to elaborate on it during the oral hearing before the Migration Court but had declined to do so. It thus concluded that the applicant’s conversion could not be regarded as a new circumstance, which was a precondition for the Migration Board to re-examine the request.", "34. The applicant appealed against the decision to the Migration Court, maintaining his claims. He submitted that since he had not previously relied on his conversion, it should be regarded as a new circumstance.", "35. On 6 October 2011 the Migration Court rejected the appeal. It observed that the authorities had already been aware of the applicant’s conversion in the original proceeding leading to the decision to expel him. Therefore, the conversion could not be considered as a “new circumstance”. The fact that the applicant had previously chosen not to rely on his conversion as a ground for asylum did not change the court’s assessment in this regard.", "36. The applicant’s request for leave to appeal was refused by the Migration Court of Appeal on 22 November 2011.", "37. Since under Chapter 12, section 22, of the Aliens Act, the validity of a deportation order expires four years after the date on which it acquired legal force, in the present case the deportation order in issue expired on 8 June 2015." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "38. The relevant provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act ( Utlänningslagen, 2005:716), as amended on 1 January 2010.", "39. Chapter 5, section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (see Chapter 4, section 2, of the Aliens Act).", "40. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in Sweden (see Chapter 5, section 6, of the Aliens Act).", "41. As regards the enforcement of a deportation or removal order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (see Chapter 12, section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (see Chapter 12, section 2, of the Aliens Act).", "42. Under certain conditions, an alien may be granted a residence permit even if a deportation or removal order has gained legal force. This applies, under Chapter 12, section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment, or there are medical or other special reasons why the order should not be enforced.", "43. If a residence permit cannot be granted under Chapter 12, section 18, of the Aliens Act, the Migration Board may instead decide to re-examine the matter. Such re-examination is to be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, of the Aliens Act, and that these circumstances could not have been invoked previously, or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not be met, the Migration Board will decide not to grant re-examination (see Chapter 12, section 19, of the Aliens Act).", "44. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three bodies: the Migration Board, the Migration Court and the Migration Court of Appeal. However, no appeal lies against a decision by the Migration Board not to grant a residence permit under Chapter 12, section 18, of the Aliens Act (see, a contrario, Chapter 14 of the Aliens Act). According to Chapter 16, section 11, of the Aliens Act, leave to appeal is a condition for a case to be tried on the merits by the Migration Court of Appeal. Leave to appeal is granted if it is of importance for the guidance of the application of law that the Migrations Court of Appeal considers the appeal or there are extraordinary reasons for such a consideration.", "Pursuant to Chapter 12, section 22, of the Aliens Act, the validity of a deportation order, which has not been issued by a general court (that is, not as a consequence of a criminal conviction), expires four years after the date on which it acquired legal force. When a deportation order thus becomes statute-barred, the alien may apply anew for asylum and a residence permit. A new application entails a full examination by the Migration Board of the reasons put forward by the alien and the Board’s decision may, if negative, be appealed against to the Migration Court and the Migration Court of Appeal in accordance with the rules pertaining to the ordinary proceedings concerning asylum and residence permits. An appeal against a negative decision by the Board has suspensive effect and the alien may accordingly not be expelled while the proceedings are pending.", "45. On 30 November 2011 the Swedish Migration Court of Appeal delivered a judgment (MIG 5 (25) 2011:29) ruling on the assessment of the risk of persecution in cases of sur place conversion. It held that, when assessing whether an alien had plausibly demonstrated that his or her conversion from one religion to another was genuine in the sense that it was based on a genuine personal religious conviction, an individual assessment should be made in accordance with the the Office of the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the UNHCR Guidelines on International Protection regarding Religion-Based Refugee Claims. An overall assessment should be made based on the circumstances in which the conversion took place and whether the claimant could be expected to live as a convert upon returning to his or her home country. Furthermore, in the case of individuals who had converted after leaving their country of origin (conversion sur place ), the credibility issue required particular attention. In a case where conversion was invoked shortly after the decision to expel the claimant became final and non-appealable, particular attention should be paid to the credibility of the statements made concerning the conversion. A complainant whose conversion was not deemed to have been based on genuine conviction had not plausibly demonstrated that, upon returning to his or her country of origin, he or she had the intention of living there as a convert and consequently attracting the interest of the authorities or individuals.", "46. On 12 November 2012 the Director General for Legal Affairs at the Swedish Migration Board issued a “general legal position” concerning religion as a ground for asylum, including conversion ( Rättsligt ställningstagande angående religion som asylskäl inklusive konvertering, RCI 26/2012). It was based on the above-mentioned judgment by the Migration Court of Appeal (MIG 5 (25) 2011:29), the UNHCR Guidelines and the judgment of the Court of Justice of the European Union (CJEU) of 5 September 2012 in Bundesrepublik Deutschland v. Y and Z (C-71/11 and C-99/11, EU:C:2012:518 – see paragraph 50 below). According to the legal position, the credibility of a conversion must be carefully assessed in order to determine whether a genuine conversion has taken place; a person whose conversion is not based on genuine conviction will most likely not practise his or her new religion upon returning to his or her country of origin. Furthermore, if the complainant is not credible, an assessment must be made of whether adherence to the new religion is attributed to the individual upon return to his or her country of origin. In this assessment it is relevant to consider whether the conversion may have or will come to the attention of the authorities or any other actor which could constitute a threat. Finally, a person who has undergone a genuine change in his or her faith or who risks being attributed a new religious belief and who therefore risks persecution should not be compelled to hide his or her faith solely in order to avoid persecution.", "47. On 10 June 2013 the Director General for Legal Affairs at the Swedish Migration Board issued a “general legal position” concerning the methodology for assessing the reliability and credibility of applications for international protection ( Rättsligt ställningstagande angående metod för prövningen av tillförlitlighet och trovärdighet, RCI 09/2013), which was based on, inter alia, the assessment by the UNHCR in its report “Beyond Proof; Credibility Assessment in EU Asylum Systems”, of May 2013. It sets out that it is the duty of the applicant to submit all relevant elements needed to substantiate his or her application for international protection, and that the initial burden of proof rests on the applicant. However, responsibility for the assessment of an application for international protection lies jointly with the applicant and the examining authority. Furthermore, it also follows from the legal position that the evidence in an asylum case consists not only of the applicant’s statements but also of supporting evidence, such as documents, testimony and country information.", "III. RELEVANT EUROPEAN UNION LAW AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION", "48. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive), replaced by Council Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, which applies from 9 January 2012, provided, in so far as relevant, as follows.", "Article 4: Assessment of facts and circumstances", "“1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.", "2. The elements referred to in of paragraph 1 consist of the applicant’s statements and all documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.", "3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:", "(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;", "(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;", "(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;", "(d) whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;", "(e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.", "4. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.", "5. Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met:", "(a) the applicant has made a genuine effort to substantiate his application;", "(b) all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given;", "(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;", "(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and", "(e) the general credibility of the applicant has been established.”", "Article 5: International protection needs arising sur place", "“1. A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin.", "2. A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on activities which have been engaged in by the applicant since he left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin.", "3. Without prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall normally not be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his own decision since leaving the country of origin.”", "Article 9: Acts of persecution", "“1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:", "(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or", "(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).", "2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:", "(a) acts of physical or mental violence, including acts of sexual violence;", "(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;", "(c) prosecution or punishment, which is disproportionate or discriminatory;", "(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;", "(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);", "(f) acts of a gender-specific or child-specific nature.", "3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.”", "Article 10: Reasons for persecution", "“1. Member States shall take the following elements into account when assessing the reasons for persecution:", "(a) the concept of race shall in particular include considerations of colour, descent, or membership of a particular ethnic group;", "(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;", "...”", "49. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (the Asylum Procedures Directive), was replaced by Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, which applies from 19 July 2013. The former, stipulated, inter alia, as follows.", "“CHAPTER III: PROCEDURES AT FIRST INSTANCE", "...", "SECTION II", "Article 25: Inadmissible applications", "1. In addition to cases in which an application is not examined in accordance with Regulation (EC) No 343/2003, Member States are not required to examine whether the applicant qualifies as a refugee in accordance with Directive 2004/83/EC where an application is considered inadmissible pursuant to this Article.", "2. Member States may consider an application for asylum as inadmissible pursuant to this Article if:", "...", "(f) the applicant has lodged an identical application after a final decision;", "...", "SECTION IV", "Article 32: Subsequent application", "1. Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.", "2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum:", "(a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20;", "(b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken.", "3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant.", "...", "CHAPTER V: APPEALS PROCEDURES", "Article 39: The right to an effective remedy", "1. Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following:", "(a) a decision taken on their application for asylum, including a decision:", "(i) to consider an application inadmissible pursuant to Article 25(2),", "...”", "50. On 5 September 2012 the Grand Chamber of the CJEU delivered its judgment in Bundesrepublik Deutschland v. Y and Z (cited above). It concerned two asylum-seekers from Pakistan, who claimed that they had been ill ‑ treated because of their membership of the Muslim Ahmadiyya community, an Islamic reformist movement, and for that reason had been forced to leave their country of origin. The German authorities had found that Y and Z were deeply committed to their faith and that their life had been actively shaped by it in Pakistan. They continued to practise their religion in Germany and considered that the public practise of their faith was essential in order for them to preserve their religious identity. The references for a preliminary ruling concerned the interpretation of Articles 2 (c) and 9 § 1 (a) of the Qualification Directive. The German Federal Administrative Court ( Bundesverwaltungsgericht) had asked the CJEU three questions. First, it asked to what extent an infringement of freedom of religion, and in particular the right of the individual to live his faith openly and fully, was likely to be an “act of persecution” within the meaning of Article 9 § 1 (a) of the Qualification Directive. Next, the national court asked the CJEU whether the concept of an act of persecution was to be restricted to infringements affecting only what was referred to as a “core area” of freedom of religion. Finally, it asked the CJEU whether a refugee’s fear of persecution was well founded within the meaning of Article 2 (c) of the Qualification Directive where the refugee intended, on his return to his country of origin, to perform religious acts which would expose him to danger to his life, his freedom or his integrity or whether it was, on the contrary, reasonable to expect that person to give up the practice of such acts. In its conclusion the CJEU held as follows.", "“1. Articles 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:", "– not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union is capable of constituting an ‘act of persecution’ within the meaning of that provision of the Directive;", "– there may be an act of persecution as a result of interference with the external manifestation of that freedom, and", "– for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83.", "2. Article 2(c) of Directive 2004/83 must be interpreted as meaning that the Applicant’s fear of being persecuted is well founded if, in the light of the Applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from those religious practices.”", "51. On 2 December 2014 the Grand Chamber of the CJEU delivered its judgment in A and Others v. Staatssecretaris van Veiligheid en Justitie (C ‑ 148/13, C ‑ 149/13 and C ‑ 150/13, EU:C:2014:2406). It concerned third-country nationals who had lodged an application for asylum in the Netherlands because they feared persecution in their respective countries of origin on account, in particular, of their homosexuality. The Dutch Council of State ( Raad van State ) requested a preliminary ruling concerning the interpretation of Article 4 of the Qualification Directive as to whether EU law limited the actions of member States when assessing requests for asylum made by an applicant who feared persecution in his country of origin on grounds of sexual orientation. In its conclusion, the CJEU held as follows", "“Article 4(3)(c) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment by the competent national authorities, acting under the supervision of the courts, of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals.", "Article 4 of Directive 2004/83, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.", "Article 4 of Directive 2004/83, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.", "Article 4(3) of Directive 2004/83 and Article 13(3)(a) of Directive 2005/85 must be interpreted as precluding, in the context of that assessment, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution.”", "IV. RELEVANT UNHCR GUIDELINES AND OTHER MATERIAL", "52. On 28 April 2004 the UNHCR issued Guidelines on International Protection regarding Religion-Based Refugee Claims, which under the heading, “Substantive Analysis, A. Defining ‘religion’” stated, inter alia the following.", "“9. Establishing sincerity of belief, identity and/or a certain way of life may not necessarily be relevant in every case. It may not be necessary, for instance, for an individual (or a group) to declare that he or she belongs to a religion, is of a particular religious faith, or adheres to religious practices, where the persecutor imputes or attributes this religion, faith or practice to the individual or group. As is discussed further below in paragraph 31, it may also not be necessary for the claimant to know or understand anything about the religion, if he or she has been identified by others as belonging to that group and fears persecution as a result. An individual (or group) may be persecuted on the basis of religion, even if the individual or other members of the group adamantly deny that their belief, identity and/or way of life constitute a ‘religion’.”", "According to the Guidelines, religious belief, identity or way of life is considered as so fundamental to human identity that one should not be compelled to hide, change or renounce it in order to avoid persecution. Restrictions on the freedom to manifest one’s religion or belief are permitted if these limits are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Even though discrimination for reasons of religion is prohibited under international human rights law, all discrimination does not necessarily rise to the level required for recognition of refugee status. Furthermore, where individuals convert after their departure from the country of origin, this may have the effect of creating a sur place claim. In such situations, particular credibility concerns tend to arise and a rigorous and in-depth examination of the circumstances and genuineness of the conversion will be necessary. Issues which need to be assessed include the nature of and connection between any religious convictions held in the country of origin and those now held, any disaffection with the religion held in the country of origin, for instance, because of its position on gender issues or sexual orientation, how the claimant came to know about the new religion in the country of asylum, his or her experience of this religion, his or her mental state and the existence of corroborating evidence regarding involvement in and membership of the new religion. So-called “self-serving” activities do not create a well-founded fear of persecution on a Convention ground in the claimant’s country of origin if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned.", "53. The UNHCR has also published a handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Paragraph 67 of the Handbook states as follows.", "“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect. It is evident that the reasons for persecution under these various headings will frequently overlap. Usually there will be more than one element combined in one person, e.g. a political opponent who belongs to a religious or national group, or both, and the combination of such reasons in his person may be relevant in evaluating his well-founded fear.”", "Of relevance also is the UNHCR report “Beyond Proof: Credibility Assessment in EU Asylum Systems” of May 2013.", "V. RELEVANT US SUPREME COURT JUDGMENTS", "54. The US Supreme Court judgments, United States v. Steeger (380 US 163 (1965)) and Welsh v. United States (398 US 333 (1970)), concerned conscientious objectors and the “test of religious belief” provided by the US Supreme Court under § 6(j) of the Universal Military training and Service Act. In the former judgment, the Supreme Court ruled that the test of religious belief under § 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Thus conscientious-objector status was not reserved to individuals of a traditional religious background. In the latter judgment, the Supreme Court found that although Mr Welsh denied any religious foundation for his beliefs, whereas Mr Seeger had characterised his pacifist beliefs as “religious”, Mr Welsh’s conviction was nevertheless valid. More specifically it stated, among other things,", "“The Court made it clear [in Steeger] that these sincere and meaningful beliefs that prompt the registrant’s objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6(j) ;does not distinguish between externally and internally derived beliefs,’ id. at 186, and also held that ‘intensely personal’ convictions which some might find ‘incomprehensible’ or ‘incorrect’ come within the meaning of ‘religious belief’ in the Act. Id. at 184-185. What is necessary under Seeger for a registrant’s conscientious objection to all war to be ‘religious’ within the meaning of § 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality – a God – who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content, but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual ‘a place parallel to that filled by ... God’ in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a ‘religious’ conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.”", "VI. BACKGROUND MATERIAL RELEVANT TO THE APPLICANT’S ASYLUM CLAIM ON POLITICAL GROUNDS", "55. The relevant background material includes the United Kingdom Home Office’s “Iran, Country of Origin Information (COI) Report” of 26 September 2013 describing, among other things, the “History and Recent Developments” (Chapters 3 and 4), “Summonses” (Chapter 11.53) and the “Green Movement” (Chapter 15.49). Of interest also is the UN Special Rapporteur’s report on the situation of human rights in the Islamic Republic of Iran of 13 March 2014, and the United Kingdom Foreign and Commonwealth Office’s report, “Iran, Country of Concern” of 10 April 2014.", "56. Just after the elections in Iran on 12 June 2009, the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe adopted on 1 October 2009 a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens’ human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran. Furthermore, the US Department of State’s 2010 human rights report on Iran, in Section 2 “Freedom of Speech and Press/Internet Freedom” (8 April 2011) noted the following.", "“The government monitored Internet communications, especially via social networking websites such as Facebook, Twitter and YouTube, and collected individuals’ personally identifiable information in connection with peaceful expression of views. The government threatened, harassed and arrested individuals who posted comments critical of the government on the Internet ...”", "The United Kingdom Home Office’s Operational Guidance Note on Iran, dated November 2011, stated the following: “3.7.11 ... There is a real risk that high profile activists and political opponents who have come to the attention of the authorities would on return to Iran face real risk of persecution and should be granted asylum for reason of his or her political opinion.”", "VII. BACKGROUND MATERIAL RELEVANT TO THE APPLICANT’S ASYLUM CLAIM BASED ON HIS CONVERSION", "57. The Danish Immigration Service’s “Update on the Situation for Christian Converts in Iran”, June 2014, stated, inter alia, as follows.", "“1.2.1 Charges used against Christian converts over time", "According to an international organization in Turkey, although apostasy does not figure in the Iranian criminal code, there have in the past been cases where judges have made apostasy rulings basing these decisions on the knowledge of the judge and incorporating Islamic law. Reference was made to the case of Pastor Soodmand who, in 1990, was executed upon being charged with apostasy. It was added that in 1994 another pastor, Pastor Mehdi Dibaj, was charged with apostasy, released and found killed in a forest. Since 1990, there have been no reports of converts from Islam to Christianity having been sentenced to the death penalty for apostasy in Iran. The latest case where a convert has been charged with apostasy is that of Yousef Naderkhani, a Church of Iran pastor, which was covered widely in international media. He was sentenced to three years’ imprisonment.", "In 2009-2010, when Naderkhani’s case came up, courts were being pressured by the regime to make use of apostasy charges in cases regarding converts. However, the courts were reluctant as apostasy cases were reserved to special religious courts for clergy. Religious courts were legally the only courts that could try apostasy charges and therefore only in the instance where a religious cleric had converted, would such a charge be applicable. Instead, in courts outside of the religious courts, the cases involving converts would then rather be on charges of disturbing the public order than apostasy.", "Since 2011, the only significant change in the way the authorities are treating converts to Christianity is the crystallization that apostasy is not applicable to converts to Christianity. The Iranian authorities stated in 2009 to 2011 that house churches were linked to outside movements, for example Zionist movements, and organizations abroad, for example in the US. The regime sees the efforts of evangelical movements as a drive against the Iranian regime. As a result, evangelical churches and house churches are viewed in a national security frame. This view of the regime explains why some cases involving converts, specifically leaders of house churches, also involved charges of a more political nature.", "Concerning the case of Yousef Nadarkhani, Christian Solidarity Worldwide (CSW) said that according to the knowledge of the organisation, Nadarkhani is still living in Rasht and is carrying on with his business as a pastor. There has been no use of apostasy on Christians in Iran after the case of Naderkhani in which his charges were overturned. Today, all charges against converts and pastors/house church leaders are of a political nature, linking to allegations of threats to national security or espionage, including links to foreign bodies and enemies of Islam, including Zionists.", "...", "1.6 Situation of converts who return to Iran after having converted abroad, i.e. in Europe/Western countries", "Mansour Borji explained that 20 years ago, it was possible for a Christian convert to be baptized in a church in Iran. Over time, the churches that did baptize paid the price and due to gradual pressure, this possibility has now been eliminated. Since 2006-2007, converts are no longer baptized in Iranian churches as no one was willing to run the risk of performing a baptism. Christian converts consequently started travelling to Turkey and other neighbouring countries to get baptized. Asked if house churches perform baptism, the source said that some churches might.", "With regard to the situation of converts who return to Iran after being baptized abroad, be it in Turkey, Armenia, UAE or another country, the source found that they may return to Iran quietly and not encounter any problems. If the person is already monitored by the authorities, he or she could risk consequences upon return to Iran.", "According to AIIS it is difficult to obtain information on potential risks an individual may face upon returning to Iran after conversion abroad. If Iranian informants have gathered information regarding an individual who has returned to Iran, the authorities may arrest them for questioning. It is possible that charging and conviction will [follow] the arrest and questioning. A wide group of people could be in that position: students, political activists, family members of political persons might even be questioned as well as Christian converts.", "Regarding whether baptism abroad would put a person at risk from the authorities in Iran, AIIS considered that the importance of baptism should be balanced against how the Iranian authorities perceive a convert. A person who has attended training and sessions abroad may be considered a convert, although he or she may not have officially been baptized.", "Asked about the situation for a convert who returns to Iran after having converted abroad, i.e. in Europe or a Western country, Mansour Borji found that there would be no difference in the way the Iranian authorities would deal with the case. If the person is known to the authorities and they have shown an interest in him or her before he or she left the country, there could be a risk to him or her upon returning. If the person is unknown to the authorities, the source did not consider that there would be a huge threat towards him or her. The source referred to a case of a family who went back to Iran and upon return, they were threatened and followed around/harassed. It was considered that perhaps relatives or others had reported them to the authorities causing the harassment. Ultimately, the family left Iran again. They had secretly begun to attend a house church.", "Concerning the consequences for an individual upon return to Iran after having converted abroad, CSW said that any convert who wishes to practice his or her faith upon return, would face serious risk. Whether an individual has been baptized in a nearby country or in Europe or the US, would not make any difference. If an individual returns to Iran and is not actually promoting Christianity, the fact still remains that such an individual has left the ‘faith’ (Shia Islam) and thus threatens the order of the regime.", "When asked about the consequences of returning to Iran after having been baptized abroad, Elam Ministries said that many Iranians do go abroad and return to Iran after a while. If the authorities in Iran become aware of the fact that a person has been baptized abroad such an individual may risk interrogation and repercussions. The source considered that the authorities may find out that an individual has been baptized through informers and telephone/internet tapping.", "When asked about how persons who have been baptized abroad carry on with a Christian life upon return to Iran, it was considered that Iranian converts need baptism because of their Islamic background. It is easier mentally to live as a Christian after baptism has taken place. After baptism an individual will often display a greater change in behaviour that will be obvious to others. Talking from experience, an Iranian network leader said that after he had turned Christian, he no longer used profanity or was angry as he used to be and that this change in behaviour was of course noticed by his family members and the people around him. Also, after having become a Christian one is given the command to share one’s faith with others. Part of the teachings of the Bible is evangelism and the gospel of Matthew is that one should go and tell people about Jesus. Converts wish to obey this and it is those who evangelize that the authorities want to stop.", "It was considered that persons who return from Western countries after converting would have to be very careful about doing any evangelizing. When considering the situation of an individual who has converted in Europe who then returns to Iran, their situation would be much the same as that of Iranians who convert in Iran. Such individuals would have to lay low and not speak openly about their conversion. If their conversion is uncovered and the authorities are notified, there is a risk that such an individual will be suspected of links with foreign organizations much the same as a convert who has been living in Iran.", "The source added that those who are outside of Iran for extended periods of time may be more at risk in that the authorities may suspect them of spying. It was further added that this counts not only for Christian converts but also for other Iranians.", "Asked about the situation of Christian converts who return to Iran after coming to Turkey or another country, and meeting with other believers, the representatives of the Union Church informed the delegation that if the converts stay ‘quiet’; i.e., they do not associate with other believers, they may not be discovered and the visits to a foreign country will then not make a lot of a difference for them.", "The source did not consider that there would be less risk to an individual who returns to Iran after being baptized in a Western country, if the individual renounces the baptism and explains it to be part of a strategy for coming to the West. This would work for their families, but maybe not for the government authorities. Converts in Iran are subject to arrest, torture and execution; they would normally not be declaring their religion on job or school applications. According to the representatives of the Union Church, even if not known to authorities, converts can face shunning and even ‘honour killing’ by their families. Ethnic Christian minorities (Armenians, Syriacs) are allowed to meet and worship in strictly regulated conditions. The source said that we hear that they also have difficulties, some of which are reported in the media.”", "58. The United Kingdom Home Office’s, “Iran, Country of Origin Information (COI) Report” of 26 September 2013, stated, inter alia, the following.", "“19.01 The Christians in Parliament All Party Parliamentary Group (APPG) ‘Report on the Persecution of Christians in Iran’ published in October 2012, stated", "‘Pre-revolution, Iran was seen as sympathetic towards religious minorities, and the Iranian constitution contains guarantees of fundamental human rights, including freedom of opinion, and protection from torture and arbitrary arrest. Article 23 of the Iranian constitution states that, “The investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.” However, these rights are subject to a more general principle that Shari’a law takes precedence in any conflict of law, and so these constitutional provisions have not stopped widespread interrogation and punishment of Iranians purely on the grounds of their religious beliefs.’", "19.02 The same APPG report further noted that, ‘The Iranian constitution enshrines protection of freedom of religion for Christians, Jews and Zoroastrians, and there is a system of registration for non-Muslim places of worship. In reality, however, even the officially recognised churches face severe limitations on their freedom to worship.’", "...", "Religious demography", "19.09 The Criminal Intelligence Agency (CIA) World Fact book, updated 22 August 2013, accessed 11 September 2013, provided the following breakdown of religious groups in Iran: Muslim (official) 98% (Shia 89%, Sunni 9%), other (includes Zoroastrian, Jewish, Christian, and Baha’i) 2%.", "...", "Proposed law on apostasy", "19.21 The 2013 ICHRI report, ‘The Cost of Faith’, noted that, ‘Under the pending new Iranian penal code awaiting final approval, apostasy remains uncodified. However, the code includes a provision referring to Article 167 of the Iranian constitution that explicitly instructs judges to utilize Islamic legal sources where crimes or punishments are not covered by the code. This leaves the door open for the continued practice of relying on jurisprudence that holds apostasy to be a capital crime.’", "...", "Prosecution of apostates", "19.23 On the prosecution of apostates the Landinfo Report 2011 noted ‘In practice, people are convicted of apostasy only very rarely’. The same source continued, however,", "‘Charging converts of apostasy appears to have become more common ... Formal charges of apostasy against converts have occurred relatively seldom in Iran, but threats of such charges have been brought up during the trial as a means of pressuring converts to declare that they repent and wish to return to Islam. In many cases the court has decided to release the convert without any charges, or brought other charges, such as participation in illegal house churches or for having had contact with foreign media.’", "19.24 The 2013 ICHRI report, ‘The Cost of Faith’, reported that,", "‘The Campaign has been able to document three cases of Christians charged with apostasy: those of Mehdi Dibaj, Youcef Nadarkhani, and Hossein Soodmand, and one case, that of Hossein Soodmand, in which a Christian was executed by the state for apostasy. Soodmand, a convert and pastor, was arrested in 1990. After two months in prison, during which time he reportedly refused to renounce his faith, Soodmand was executed by hanging. It is not known whether he had a trial. Nadarkhani, also a convert and pastor, was arrested in 2009 and subsequently sentenced to death. His retrial, granted upon appeal, garnered international attention; after pressure from the UN, the European Union, international human rights organizations, and the Vatican, he was acquitted on apostasy charges and sentenced instead to three years imprisonment for charges linked to evangelism. He was released in 2012 on time served.’", "...", "Christians", "This section should be read in conjunction with the sections on Apostasy, Prosecution of apostates and Muslim Converts to Christianity.", "19.31 The International Campaign for Human Rights in Iran (ICHRI) 2013 report, ‘The Cost of Faith’, stated:", "‘There are no definitive statistics on the number of Christians, and Christian converts in particular, in Iran due to the lack of reliable polling. In 2010, the research group World Christian Database (WCD) recorded 270,057 Christians in Iran, or about 0.36 percent of the entire Iranian population of 74.7 million. In Iran, there are two main categories of Christians: ethnic and non-ethnic. The majority are ethnic Christians, which refers to Armenians and the Assyrians (or Chaldeans) who possess their own linguistic and cultural traditions. Most ethnic Christians are members of their community’s Orthodox church. Non ‑ ethnic Christians are for the most part members of Protestant churches and most, though not all, are converts who came from Muslim backgrounds. The WCD in 2010 reported approximately 66,700 Protestant Christians in Iran, which represents about 25 percent of the Iranian Christian community. The Iranian government does not recognize converts as Christians and many converts do not report their faith publicly due to fear of prosecution. Thus the number of converts in Iran is likely undercounted. Several Iranian Christian organizations indicated to the Campaign that the number of Christian converts could be as high as 500,000, but such estimates could not be independently confirmed.’", "Muslim converts to Christianity", "...", "19.53 The CSW [the Christian Solidarity Worldwide] report of June 2012 stated:", "‘There has been a noticeable increase in the harassment, arrests, trials and imprisonments of converts to Christianity since the beginning of 2012 in various cities across Iran, with a particular crackdown on individuals and groups in Tehran, Kermanshah, Esfahan and Shiraz. Although some of these detainees have been released after being asked to sign documents preventing them from attending Christian meetings, many others remain detained, including women and the elderly. There was a particular upsurge of arrests during February 2012, which continued into March. Once again, exorbitant bail payments have been demanded in order to secure temporary release for detained Christians. The renewed wave of repression has affected both the house church movement and approved denominations, the latter, a continuation of events that occurred at the end of 2011 when the government raided a church belonging to the sanctioned Assemblies of God (AOG) movement in Ahwaz, imprisoning all attendees, including Sunday School children. Whilst direct attacks on sanctioned churches were rare in 2011, so far 2012 has seen the arrest of the leaders of the Anglican Churches of St Paul’s and St Peter’s in Iran’s third largest city, Esfahan. In May [2012] it was reported that the head of St Paul’s Church, Pastor Hekmat Salimi, had been temporarily released on bail of around $40,000.’", "See the CSW report directly for further information.", "19.54 On 8 September 2012, the Guardian reported the release from prison of Christian pastor Youcef Nadarkhani but also noted that, ‘In April [2012], another pastor, Farshid Fathi, 33, became the latest victim of state persecution of Christian converts after being sentenced to six years in prison by a revolutionary court, Iran Christian News Agency reported’. The USCIRF Report 2013 noted that, ‘Part of the evidence offered at trial was that Fathi possessed and unlawfully distributed Farsi language Bibles and Christian literature. He has spent a number of months in solitary confinement and remains in prison’.", "...", "19.55 The Joint report from the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London, United Kingdom, ‘On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures’, 9 November to 20 November 2012 and 8 January to 9 January 2013, published February 2013 [Danish fact finding report 2013], reported on the risk of persecution to Christian converts. The majority of the sources consulted wished to remain anonymous. The report included the following observations:", "‘An international organization in Ankara stated that the authorities perceive the evangelistic networks as a sort of intelligence network and would rather go after the evangelizers and proselytizers. The authorities would not go after individual converts, but if it turns into more organized activities, it is a different issue. It was added that the authorities for instance, have not cut the TV satellite channels that disseminate Christian TV. According to the source, the authorities are not chasing house church members but would rather go after the “big fish”, i.e. those that organize and who proselytize, as they are seen as a threat to society. The evangelizers who disseminate Christian information are more at risk than others, and an extreme effort is put into chasing the evangelizers, i.e. the pastors, according to the source.", "Asked about what could lead to the persecution of a Christian convert, a Western embassy stressed that engaging in evangelical activity or active manifestation of one’s Christian identity in the public sphere will risk negative attention from the authorities and create problems. Wearing a cross would not be a problem in itself. It was added that a person’s risk however, may also depend on what the individual has done in the past, for example, if previous activity has been registered by the authorities.’", "...", "19.58 On 16 June 2013, Mohabat reported that:", "‘According to Mohabat News, the Revolutionary Court in Shiraz delivered the sentences of Mojtaba Seyyed-Alaedin Hossein, Mohammad-Reza Partoei (Koorosh), Vahid Hakkani, and Homayoun Shokouhi to their lawyer.", "All four Christian men were found guilty of attending a house-church, spreading Christianity, having contact with foreign ministries, propaganda against the regime and disrupting national security. Each was sentenced to three year and eight months in prison.", "...’”", "THE LAW", "I. PRELIMINARY OBSERVATIONS", "A. The Government", "59. At the hearing on 3 December 2014 the Government pointed out that it would be in the interest of the proceedings for the Court to pass its judgment before 8 June 2015, since the deportation order in issue would expire on that day pursuant to Chapter 12, section 22, of the Aliens Act.", "60. In their further observations of 23 June 2015, the Government requested that the Grand Chamber strike the case out of its list of cases in line with, for example, P.Z. and Others v. Sweden ((striking out), no. 68194/10, §§ 14 ‑ 17, 18 December 2012).", "61. They pointed out that the deportation order was no longer enforceable, that the applicant could not be expelled from Sweden on the basis of that order, and that he would be granted a full ordinary examination on the merits of the case upon submitting a new application for asylum. Thus, having regard to Article 37 § 1 (c) of the Convention, the Government held that it was no longer justified to continue the examination of the application and that there were no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the continued examination of the case (Article 37 § 1 in fine ).", "62. If the Grand Chamber did not strike the case from its list of cases, the Government held that it should be declared inadmissible since the applicant could not claim to be a victim within the meaning of Article 34 of the Convention of a deportation order which was not enforceable. Accordingly, the application was incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and should be declared inadmissible in accordance with Article 35 § 4.", "63. In any event, since the applicant could now institute a new request for asylum, which would be examined on the merits by all the relevant authorities, he had not exhausted domestic remedies. In the alternative, the Government therefore submitted that the present application should be declared inadmissible for failure to exhaust domestic remedies under Article 35 §§ 1 and 4 of the Convention.", "B. The applicant", "64. The applicant stated that he wished to maintain the application and asked the Court to proceed to consider the application on the merits. If the Court discontinued the examination of his case, he would need to apply afresh for asylum. In that case he intended to rely on his conversion to Christianity as one ground for asylum.", "65. In the applicant’s view, the “matter” before the Grand Chamber could not be considered as having been resolved for the purposes of Article 37 § 1 (b) by the expiry on 8 June 2015 of the validity of the applicant’s deportation order. He pointed out that the Swedish authorities had not granted him asylum or a residence permit in Sweden unlike, for example, the applicants in M.E. v. Sweden ((striking out) [GC], no. 71398/12, 8 April 2015) and W.H. v. Sweden ((striking out) [GC], no. 49341/10, 8 April 2015). Thus it could not be concluded that he no longer risks being expelled.", "66. Nor could it be concluded that it was no longer justified to continue the examination of the application for the purposes of Article 37 § 1 (c).", "67. In any event, the case raised serious issues of fundamental importance, and respect for human rights thus required that the Grand Chamber continue the examination of the case.", "68. The applicant pointed out that when striking out the cases of, inter alia, Atayeva and Burman v. Sweden ((striking out), no. 17471/11, 31 October 2013), P.Z. and Others v. Sweden, (cited above), and B.Z. v. Sweden ((striking out), no. 74352/11, 18 December 2012) by virtue of Article 37 § 1 (c), the Court had not issued a judgment at Chamber level.", "69. In the present case, however, the Chamber had passed judgment, the case had been referred to the Grand Chamber, and a hearing had been held. Throughout each of those stages, the Government had strongly resisted the applicant’s complaints and the Chamber had ruled against him. To strike out the complaint now would therefore cause the applicant considerable prejudice.", "70. Moreover, the applicant maintained that the asylum proceedings had been flawed. If the Grand Chamber did not rule on those alleged flaws, there was a palpable risk that the previous decisions, including the Chamber judgment, would be viewed uncritically by the national authorities and courts as free from fault. In any event, it placed the applicant at a fundamental disadvantage to have to pursue a fresh asylum claim against the backdrop of a series of potentially flawed decisions as to the risks facing him on return to Iran. In the applicant’s view it was unjustified to subject him to such a procedure, when the Grand Chamber had the opportunity to rule on those alleged flaws now and was so close to determining the case.", "71. Finally, he pointed out that the parties and the third-party interveners had gone to considerable trouble to prepare and submit detailed submissions in the case, and the Grand Chamber had gone to the trouble and expense of convening a hearing in the case. That expense and that effort would be wasted if the case were struck out now. This would not be justified.", "C. The Court’s assessment", "72. Article 37 § 1 of the Convention provides:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "73. The Court observes that, according to its established case-law, in cases concerning the expulsion of an applicant from a respondent State, once the applicant has been granted a residence permit and no longer risks being expelled from that State, the Court considers the case to have been resolved within the meaning of Article 37 § 1 (b) of the Convention and strikes it out of its list of cases, regardless of whether the applicant agrees (see, inter alia, M.E. v. Sweden, cited above, § 32; H v. Norway (dec.), no. 51666/13, 17 February 2015; I.A. v. the Netherlands (dec.), no. 76660/12, 27 May 2014; O.G.O. v. the United Kingdom (dec.), no. 13950/12, 18 February 2014; Isman v. Switzerland (dec.), no. 23604/11, 21 January 2014; M.A. v. Sweden (dec.), no. 28361/12, 19 November 2013; A.G. v. Sweden (dec.), no. 22107/08, 6 December 2011; and Sarwari v. Austria (dec.), no. 21662/10, 3 November 2011). The reason for this is that the Court has consistently approached the issue as one of a potential violation of the Convention, being of the view that the threat of a violation is removed by virtue of the decision granting the applicant the right of residence in the respondent State concerned (see M.E. v. Sweden, cited above, § 33).", "74. Moreover, in some cases, where the applicant was not granted a residence permit, the Court considered that it was no longer justified to continue the examination of the case by virtue of Article 37 § 1 (c) of the Convention and decided to strike it out of its list of cases, because it was clear from the information available that the applicant would not at the moment, and for a considerable time to come, be at risk of being expelled and subjected to treatment allegedly in breach of Article 3 of the Convention, and because the applicant could challenge a future removal before the domestic authorities (see, among others, I.A. v. the Netherlands, cited above; P.Z. and Others v. Sweden, cited above, §§ 14-17; B.Z. v. Sweden, cited above, §§ 17 ‑ 20; and, mutatis mutandis, under Article 8, Atayeva and Burman, cited above, §§ 19-24).", "75. In all the above-cited cases, the Court found that there were no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the continued examination of the case (Article 37 § 1 in fine ).", "76. However, in cases as mentioned in paragraph 74 above where the risk of expulsion disappears prior to any decision on the admissibility of the application, the Court has sometimes declared the latter inadmissible because the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention (see, inter alia, Atsaev v. the Czech Republic (dec.), no. 14021/10, 7 July 2015; Tukhtamurodov v. Russia (dec.), no. 21762/14, 20 January 2015; Andreyev v. Estonia (dec.), no. 42987/09, 22 January 2013; Etanji v. France (dec.), no. 60411/00, 1 March 2005; Pellumbi v. France (dec.), no. 65730/01, 18 January 2005; and Vijayanathan and Pusparajah v. France, 27 August 1992, § 46, Series A no. 241 ‑ B). The word “victim” in Article 34 of the Convention indeed denotes a person directly affected – or at risk of being directly affected – by the act or omission in issue.", "77. In the present case, the Court observes that under Chapter 12, section 22, of the Aliens Act, the deportation order, which acquired legal force on 8 June 2011 when the Migration Court of Appeal refused to grant leave to appeal (see paragraph 31 above), expired four years later, that is to say, on 8 June 2015. The deportation order has thus become statute ‑ barred and cannot be enforced.", "78. It is undisputed that the applicant may institute new and full proceedings for asylum. Should he do so, his claims will be examined on the merits by the Migration Board and, in the event of appeal, by the courts. The applicant stated (see paragraph 64 above) that if the Court discontinues the examination of the case, he will submit a fresh application for asylum and rely on his conversion to Christianity as one ground.", "79. Currently, however, the applicant is in limbo. He has not been granted asylum or a residence permit in Sweden and during any new asylum proceedings, he will unavoidably remain in an uncertain situation as regards the matters relied on under Articles 2 and 3 of the Convention in the present application. This being so, the Court is not satisfied that the applicant has completely lost his victim status. Nevertheless, in line with the case-law cited above in paragraph 74, the Court observes that, in principle, it may no longer be justified to continue the examination of the application (Article 37 § 1 (c) of the Convention).", "80. It remains to be determined whether, in the present case, there are special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case (Article 37 § 1 in fine ).", "81. It will be recalled that on 2 June 2014 the case was referred to the Grand Chamber in accordance with Article 43 of the Convention, which provides that cases can be referred if they raise “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”.", "82. The Court notes that there are important issues involved in the present case, notably concerning the duties to be observed by the parties in asylum proceedings. Thus, the impact of the current case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber.", "83. Against this background, in accordance with Article 37 § 1 in fine, the Court finds that there are special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.", "84. Consequently, the Court dismisses the Government’s request to strike out the case from its list of cases.", "II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "85. The applicant complained that, owing to his political past in Iran and his conversion from Islam to Christianity in Sweden, it would be in breach of Articles 2 and 3 of the Convention to expel him to Iran. Those provisions read as follows:", "Article 2", "“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The Chamber judgment", "86. In its judgment of 16 January 2014, the Chamber held that the implementation of the expulsion order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention. It examined the two provisions together and made an overall assessment of the risks related to the applicant’s political past and his conversion to Christianity.", "87. The Chamber noted that the applicant’s request for asylum had been carefully examined by the domestic authorities and that there were no indications that those proceedings had lacked effective guarantees to protect the applicant against arbitrary refoulement or had otherwise been flawed.", "88. As regards the applicant’s alleged political activities in Iran, the Chamber found that no information had emerged to indicate that the applicant’s political activities and engagement had been anything more than peripheral. It also agreed with the domestic authorities’ assessment that the applicant’s statements concerning his political activities had been vague and lacking in detail and that also before the Chamber, the applicant had failed to submit any detailed description of the web pages to which he referred or their alleged critical content. The applicant had submitted nothing, apart from his own statements, to substantiate the existence of those web pages. It also noted that the applicant had stated that his family in Iran had not been targeted because of his political activities. Lastly, it observed that the applicant had not claimed to have continued his political activities following his arrival in Sweden.", "89. As regards the applicant’s conversion, the Chamber observed that he had expressly stated, before the domestic authorities, that he did not wish to rely on his religious affiliation as a ground for asylum, since he felt that it was a private matter. In particular he had had the opportunity to raise the question of his conversion during the oral hearing before the Migration Court but had chosen not to. This stance had changed only when the expulsion order against him became enforceable. The Chamber further observed that the applicant had claimed that he had converted to Christianity only after arriving in Sweden and that he had kept his faith a private matter. Having regard to all of the above, the Chamber found that there was nothing to indicate that the Iranian authorities were aware of his conversion.", "B. The parties’ submissions", "1. The applicant", "90. The applicant maintained that it would be in breach of Articles 2 and 3 of the Convention to execute the removal order against him for the following reasons.", "91. As regards his political activities in Iran, it had not properly been taken into account, for example, that he had been ill-treated during his twenty days’ detention in September 2009, that he had described in detail the hearing of October 2009 before the Revolutionary Court and provided the name of the presiding judge, that he had submitted the original summons to reappear on 2 November 2009, or that he had fled the country illegally.", "92. He submitted that he would be exposed to a high risk on passing through the airport upon his return. That risk had increased because the Iranian authorities could now identify him from the Chamber judgment and would in future be able to do so from the Grand Chamber judgment as well.", "93. The applicant had not wished to rely on his conversion in the original asylum proceedings because he considered his religion a private matter and because “he did not want to exploit his valuable new-found faith as a means of buying asylum”. With hindsight, he considered that he had not at the time been provided with sufficient legal advice and support to understand the risk associated with his conversion. Nevertheless, in formal terms, his conversion had repeatedly been mentioned as a ground for asylum in the initial proceedings by his representatives. The applicant had replied willingly to questions regarding his conversion but the Migration Board had found that he lacked credibility in this respect, apparently because he did not belong to the “Church of Sweden” and since he had not submitted his baptism certificate but only a statement from the pastor at his church. Likewise, during the oral hearing before the Migration Court the applicant had submitted that his conversion would cause him problems upon his return to Iran.", "94. Moreover, on 6 July 2011, when the applicant applied for a stay of execution of the removal order, he attached a letter in which his congregation explained why he had not wished to exploit his conversion in the original asylum proceedings. The congregation had also stated that the risk to the applicant had increased because he had come into contact with “reporters or spies” who would pass on information regarding his conversion to the Iranian authorities, and because the church, to which the applicant had belonged since 2011, broadcast its services on the Internet (see paragraphs 30 and 32 above).", "95. Before the Grand Chamber, the applicant added that the risk had further increased owing to his specific work for the church. He also stated that upon return to Iran he would tell his family and friends of his conversion. They would not understand or accept it. They would disown him. He did not believe, though, that his family or friends would disclose his conversion to the authorities because they love him.", "96. In a written statement of 13 September 2014 to the Grand Chamber, the applicant explained his conversion, the way he currently manifested his Christian faith in Sweden and how he intended to manifest it in Iran if the removal order were to be executed. In his view his conversion had reached the level of cogency, seriousness, cohesion and importance such as to bring it within the scope of Article 9. He had been a nominal Muslim in Iran but did not believe in Islam. His friends at the time had been aware of this. Having arrived in Sweden, one cold evening, he and some friends had entered a gathering to have some tea and warm up. That was how he had come to be in contact with the first Christian congregation. He had gone home, obtained a Bible in Farsi, and on starting to read it felt that “it went directly to his heart”. He had continued going to Bible classes and attending prayer meetings and had been baptised in January 2010. It was correct that in March 2010 he had stated to the Migration Board that he did not think of Christianity as a religion, but that was due to his way of defining religion as a belief, like Islam, which required an intermediary, as opposed to Christianity where contact with God was direct. He had moved to a different church, where he had continued Bible classes and prayer meetings. If returned to Iran he would feel compelled by an internal drive to show his love for Jesus and for the Bible openly. At home, he would be likely to have books on Christianity and a cross, and would probably engage in home-church activities or make contact with other Christians. He would also seek to disseminate Christian literature in Farsi, in particular on the Internet.", "97. The applicant’s statement was supported by a written statement of 15 September 2014 to the Grand Chamber from a former pastor at the applicant’s church, who stated, inter alia, that he had known the applicant since the beginning of 2012, that the applicant was an intellectual in his Christian belief, that he spoke English well, that they had good discussions on religion, and that after being a Christian for around four years the applicant had obtained the skills and maturity to lead a group in Bible study lessons at his church.", "98. Finally, the applicant maintained that the asylum proceedings had been flawed, mainly because the Swedish authorities had failed to give adequate regard to the risks facing him as a result of his conversion.", "99. In particular he contended that in the original set of proceedings it was not open to the authorities to ignore the risk related to his conversion, of which they were aware, by referring to the fact that he had not relied on it. Firstly, because it was not possible for an individual to waive the protections accorded to him under Article 3 (see M.S. v. Belgium, no. 50012/08, §§ 121-25, 31 January 2012) and, secondly, because, even if Article 3 protections were in principle open to waiver, the applicant had not been given any warning as to the potential consequences for him if he chose not to rely on his religion as a ground for asylum. The authorities had never examined whether there had been a waiver in the present case or, if so, what exactly the waiver consisted of.", "100. As to the second set of proceedings, in which the applicant had actively sought to rely on his conversion, his request had been dismissed because his conversion was not considered to be a “new circumstance”. However, the authorities had failed to examine whether the applicant had a valid excuse for not relying on his conversion earlier. They had also failed to pay attention to the fact that the applicant had brought up the new circumstance of his move to a new church in a new town and the broadcasting of a service over the Internet in which he could be seen.", "2. The Government", "101. The Government contended that, for the following reasons, it would not be in breach of Articles 2 and 3 to execute the removal order in question.", "102. The political activities in which the applicant had been engaged in Iran could be considered to have taken place at a low level. That was supported by the fact that since 2009 the applicant had not received any new summonses from the Revolutionary Court and that none of the applicant’s remaining family members in Iran, according to his own information, had been subjected to any reprisals by the Iranian authorities.", "103. Moreover, in the original asylum proceedings the applicant had specifically stated that he did not wish to rely on his conversion as a ground for asylum, since he considered it a private matter. His request for asylum for political reasons was finally refused on 8 June 2011, when the Migration Court of Appeal refused leave to appeal. It was not until 6 July 2011 that the applicant brought up his fear of persecution owing to his conversion, despite the fact that he had converted in December 2009 and despite his extensive contact with other Iranian converts and his Swedish congregation, through whom he must have been aware of the Iranian State’s approach towards converts. The applicant had not explained why this fear of persecution had arisen just after the expulsion decision had become final and non-appealable, and in the Government’s view this justified paying particular attention to the credibility of his account in this regard. In the reopening proceedings, the applicant’s conversion was not a new circumstance which could not have been relied on previously, nor did the applicant have a valid excuse for not having done so, as required by the conditions laid down in Chapter 12, sections 18 and 19, of the Aliens Act for a re-examination of the case.", "104. In respect of the procedure applied in asylum cases, the Government submitted that in general the Swedish authorities followed the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“the UNHCR Handbook”) and the UNHCR Guidelines on International Protection regarding Religion-Based Refugee Claims (“the UNHCR Guidelines”) and made an individual assessment of whether an alien had plausibly demonstrated that his or her conviction sur place was genuine in the sense that it was based on a genuine personal religious conviction. That included an assessment of the circumstances in which the conversion had taken place and whether the claimant could be expected to live as a convert upon returning to the home country. Furthermore, on 12 November 2012 the Director General for Legal Affairs at the Swedish Migration Board issued a “general legal position” concerning religion as a ground for asylum, including conversion, based on a judgment of the Migration Court of Appeal (MIG 5 (25) 2011:29), the UNHCR Guidelines and the judgment of the Court of Justice of the European Union (CJEU) of 5 September 2012 in Bundesrepublik Deutschland v. Y and Z (C-99/11 and C-71/11, EU:C:2012:518). According to the legal position, the credibility of the conversion had to be carefully assessed in order to determine whether a genuine conversion had taken place. A person who had undergone a genuine change of faith or who risked being attributed a new religious belief and who therefore risked persecution should not be compelled to hide his or her faith solely in order to avoid persecution. In addition, on 10 June 2013 the Director General for Legal Affairs had issued a “general legal position” concerning the methodology for assessing the reliability and credibility of applications for international protection based on, inter alia, the assessment by the UNHCR in its report “Beyond Proof: Credibility Assessment in EU Asylum Systems”, of May 2013.", "105. In the present case, however, the applicant had not wished to rely on his conversion in the original asylum proceedings. Nevertheless, it was noteworthy that he had been a Muslim for almost fifty years in Iran and had converted to Christianity sur place shortly after his arrival in Sweden. The credibility issue therefore called for particular attention. Like the Migration Court, and the Migration Board in the proceedings before the Migration Court, the Government did not question the fact that the applicant had formally converted to Christianity in Sweden or been baptised on 31 January 2010, but they pointed out that because the applicant had specifically stated that he considered his conversion a private matter, which he did not wish to rely on as a reason to claim asylum, none of the domestic authorities had undertaken an examination of the genuineness of his conversion or of what kind of religious practice he considered essential in order for him to preserve his religious identity.", "106. In respect of the general risk for converts in Iran, the Government pointed to various international reports, and contended that it was possible for a Christian convert to live in Iran and to practise his religion within the private sphere or together with others of the same religious belief. The applicant had continuously held that his faith was a private matter and had acted accordingly. In addition, in an interview with the Migration Board in March 2010 he had stated that he did not regard Christianity as a religion. In view of this the Government found it unreasonable to believe that upon his return to Iran the applicant would engage in religious practice that would expose him to a real risk of persecution.", "3. Third-party observations", "107. The European Centre for Law and Justice, the Alliance Defending Freedom assisted by Jubilee Campaign, the Centre for Advice on Individual Rights in Europe, the European Council on Refugees and Exiles, the International Commission of Jurists and the UNHCR submitted, among other things, that Christian converts were one of the most persecuted religious minorities in Iran. The Islamic regime had systematic mechanisms in place in an attempt to identify all members in their society who had converted from Islam to Christianity. These mechanisms had made it increasingly likely for the government to identify a Christian convert in Iran, even if practising in secret. If identified by the Iranian government, Christian converts would often, at least, suffer substantial harm or interference with their lives by way of deprivation of liberty, assaults and continual harassment, and in the worst-case scenario the individual could face severe ill-treatment and death.", "108. They also maintained that in the context of a risk assessment upon removal, in keeping with the Court’s settled case-law, a full and ex nunc evaluation was required. To overlook the fact that the circumstances might have changed over time would render the applicant’s rights theoretical and illusory. The assessment should take applicable EU and refugee law into account. They therefore invited the Court to hold that, in the light of the CJEU’s judgment in Bundesrepublik Deutschland v. Y and Z (cited above), the applicant could not be expected to conceal his religion to avoid persecution covered by Article 3 of the Convention. Coerced, self-enforced concealment of one’s religious conversion as the direct, foreseeable consequence of enforcing the removal of individuals to countries where they would face real risk of the death penalty as apostates would entail a real risk of mental, psychological suffering falling within the scope of Article 3 of the Convention. Further, under refugee law, requiring self-enforced, coerced suppression of a fundamental aspect of one’s identity, such as one’s religious belief, one’s sexual orientation or one’s political opinion had been held inconsistent with the fundamental tenets of the Convention relating the to the Status of Refugees (“the Refugee Convention”).", "109. In respect of the procedural aspect, the UNHCR pointed out that the obligations in the Refugee Convention required the State authority to ascertain all the relevant facts so as to identify and recognise refugees who were entitled to protection under the Convention. Accordingly, the determination of whether an applicant had a well-founded fear of persecution or faced a risk of other serious harm was based on facts that were material to the asylum claim, including, for example, facts that the applicant had presented but requested to be disregarded owing to their private nature or where the applicant considered them to be irrelevant. It was for the examiner ultimately to decide which facts were relevant and material to the overall assessment. In respect of the burden of proof it generally rested on the person making the assertion. However, in view of the particularities of a refugee’s situation and his or her position of vulnerability, they might not be able to provide the relevant information. Accordingly, there was a shared duty between the applicant and the examiner to ascertain and evaluate all the relevant facts. In fulfilling this shared duty, examiners might, in some cases, need to use all the means at their disposal to gather the necessary evidence in support of the application.", "C. The Court’s assessment", "1. Introduction", "110. At the outset the Court observes that in the context of expulsion, where there are substantial grounds to believe that the person in question, if expelled, would face a real risk of capital punishment, torture, or inhuman or degrading treatment or punishment in the destination country, both Articles 2 and 3 imply that the Contracting State must not expel that person. The Court will therefore also examine the two Articles together (see, among other authorities, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 314, ECHR 2014; T.A. v. Sweden, no. 48866/10, § 37, 19 December 2013; K.A.B. v. Sweden, no. 886/11, § 67, 5 September 2013; Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009; and F.H. v. Sweden, no. 32621/06, § 72, 20 January 2009).", "2. General principles regarding the assessment of applications for asylum under Articles 2 and 3 of the Convention", "(a) The risk assessment", "111. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 113, ECHR 2012; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008).", "112. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires the Court to examine the conditions in the destination country in the light of the standards of Article 3 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards entail that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this level is relative, depending on all the circumstances of the case (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).", "113. The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, 15 November 1996, § 96, Reports 1996-V, and Saadi, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see, for example, Saadi, cited above, § 129, and N. v. Finland, no. 38885/02, § 167, 26 July 2005). In this connection, the Court acknowledges that, owing to the special situation in which asylum-seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum-seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, N. v. Sweden, no. 23505/09, 20 July 2010; Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007).", "114. The assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215). In this connection, and where it is relevant to do so, the Court will have regard to whether there is a general situation of violence existing in the country of destination (see Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 216, 28 June 2011).", "115. If the applicant has not already been deported, the material point in time for the assessment must be that of the Court’s consideration of the case (see Chahal, cited above, § 86). A full and ex nunc evaluation is required where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, Maslov v. Austria [GC], no. 1638/03, §§ 87-95, ECHR 2008, and Sufi and Elmi, cited above, § 215). This situation typically arises when, as in the present case, deportation is delayed as a result of the indication by the Court of an interim measure under Rule 39 of the Rules of Court. Since the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill ‑ treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known by the Contracting State at the time of the expulsion. The assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances (see, for example, Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007, and Vilvarajah and Others, cited above, §§ 107-08).", "116. It is for the Court to consider in an expulsion case whether, in all the circumstances of the case before it, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant’s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. However, it is clear that not every situation of general violence will give rise to such a risk. On the contrary, the Court has made it clear that a general situation of violence would only be of sufficient intensity to create such a risk “in the most extreme cases” where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see Sufi and Elmi, cited above, §§ 216 and 218; see also, among others, L.M. and Others v. Russia, nos. 40081/14 and 2 others, § 108, 15 October 2015, and Mamazhonov v. Russia, no. 17239/13, §§ 132 ‑ 33, 23 October 2014).", "(b) The nature of the Court’s inquiry", "117. In cases concerning the expulsion of asylum-seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Refugee Convention. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled. By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 286 ‑ 87, ECHR 2011). The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or third States, agencies of the United Nations and reputable non-governmental organisations (see, among other authorities, NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008).", "118. Moreover, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, ECHR 2011; Nizomkhon Dzhurayev v. Russia, no. 31890/11, § 113, 3 October 2013; and Savriddin Dzhurayev v. Russia, no. 71386/10, § 155, ECHR 2013. As a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned (see, for example, R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010).", "(c) The procedural duties in the examination of applications for asylum", "119. In the context of deportation, the Court has on various occasions set out the obligations incumbent on States in respect of the procedural aspect of Articles 2 and 3 of the Convention (see, inter alia, Hirsi Jamaa and Others, cited above, § 198; M.E. v. Denmark, no. 58363/10, § 51, 8 July 2014; and Sufi and Elmi, cited above, § 214).", "120. Regarding the burden of proof, the Court found in Saadi (cited above, §§ 129-32; see also, among others, Ouabour v. Belgium, no. 26417/10, § 65, 2 June 2015, and Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 261, ECHR 2012), that it was in principle for the applicant to adduce evidence capable of proving that there were substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3, and that where such evidence was adduced, it was for the Government to dispel any doubts raised by it ( Saadi, § 129). In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances (ibid., § 130). Where the sources available describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (ibid., § 131). In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the above-mentioned sources, that there are serious reasons to believe in the existence of the practice in question and in his or her membership of the group concerned (ibid., § 132).", "121. As regards asylum procedures, the Court observes that Article 4 § 1 of the Qualification Directive (see paragraph 48 above) provides that member States of the European Union may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection, and that paragraph 67 of the UNHCR Handbook (see paragraph 53 above) states as follows.", "“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect. It is evident that the reasons for persecution under these various headings will frequently overlap. Usually there will be more than one element combined in one person, for example a political opponent who belongs to a religious or national group, or both, and the combination of such reasons in his person may be relevant in evaluating his well-founded fear”.", "122. The Court also notes that the UNHCR, in its third-party observations (see paragraph 109 above), submitted that although the burden of proof generally rested on the person making the assertion, there was a shared duty between the applicant and the examiner to ascertain and evaluate all the relevant facts, and that in fulfilling this shared duty, examiners might, in some cases, need to use all the means at their disposal to produce the necessary evidence in support of the application.", "123. In respect of sur place activities, the Court has acknowledged that it is generally very difficult to assess whether a person is genuinely interested in the activity in question, be it a political cause or a religion, or whether the person has only become involved in it in order to create post-flight grounds (see, for example, A.A. v. Switzerland, no. 58802/12, § 41, 7 January 2014). That reasoning is in line with the UNHCR Guidelines, which state that “particular credibility concerns tend to arise in relation to sur place claims and that a rigorous and in-depth examination of the circumstances and genuineness of the conversion will be necessary ... So-called ‘self-serving’ activities do not create a well-founded fear of persecution on a Convention ground in the claimant’s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned” (see paragraph 52 above). See also the Court’s finding in, for example, Muradi and Alieva v. Sweden ((dec.), no. 11243/13, §§ 44-45, 25 June 2013) to this effect.", "124. Furthermore, the Court observes that in respect of a first-instance determination of eligibility for international protection, the CJEU held (judgment of 2 December 2014 in A and Others v. Staatssecretaris van Veiligheid en Justitie, C-148/13, C-149/13 and C-150/13, EU:C:2014:2406), inter alia, that Article 4 § 3 of the Qualification Directive and Article 13 § 3 (a) of the Asylum Procedures Directive had to be interpreted as precluding the competent national authorities, in the context of that assessment, from finding that the statements of the applicant for asylum lacked credibility merely because the applicant had not relied on his declared sexual orientation on the first occasion he had been given to set out the ground for persecution (see paragraphs 49 and 51 above).", "125. It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his claim for asylum with the reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of exposure to a life ‑ threatening situation covered by Article 2 or to treatment in breach of Article 3.", "126. However, in relation to asylum claims based on a well-known general risk, when information regarding such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expulsion cases entail that the authorities carry out an assessment of that risk of their own motion (see, for example, Hirsi Jamaa and Others, cited above, §§ 131-33, and M.S.S. v. Belgium and Greece, cited above, § 366).", "127. By contrast, in relation to asylum claims based on an individual risk, it must be for the person seeking asylum to rely on and to substantiate such a risk. Accordingly, if an applicant chooses not to rely on or disclose a specific individual ground for asylum by deliberately refraining from mentioning it, be it religious or political beliefs, sexual orientation or other grounds, the State concerned cannot be expected to discover this ground by itself. However, considering the absolute nature of the rights guaranteed under Articles 2 and 3 of the Convention, and having regard to the position of vulnerability that asylum-seekers often find themselves in, if a Contracting State is made aware of facts relating to a specific individual that could expose him to a risk of ill-treatment in breach of the said provisions upon returning to the country in question, the obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an assessment of that risk of their own motion. This applies in particular to situations where the national authorities have been made aware of the fact that the asylum-seeker may plausibly be a member of a group systematically exposed to practice of ill-treatment and there are serious reasons to believe in the existence of the practice in question and in his or her membership of the group concerned (see paragraph 120 above).", "3. Application of those principles to the present case", "128. In applying the above principles to the present case, the Court finds it appropriate to separate the examination of the case into two parts: first, the applicant’s political activities in Iran; and, second, his conversion to Christianity in Sweden.", "(a) The applicant’s political activities", "(i) The general situation in Iran", "129. The applicant did not claim that the general circumstances obtaining in Iran would on their own preclude his return to that country. Moreover, the Court notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion to the country in question (see H.L.R. v. France, 29 April 1997, § 41, Reports 1997 ‑ III). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply because the individual concerned will be exposed to such violence in that country (see Sufi and Elmi, cited above, § 218, and NA. v. the United Kingdom, cited above, § 115).", "130. In the present case, while being aware of the reports of serious human rights violations in Iran (see paragraphs 55-58 above), the Court does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were returned to that country (see also S.F. and Others v. Sweden, no. 52077/10, § 64, 15 May 2012). The Court will thus proceed to ascertain whether the applicant’s personal situation is such that his return to Iran would contravene Articles 2 and 3 of the Convention.", "(ii) The particular circumstances of the applicant’s situation", "131. The Court notes that the applicant gave testimony in the presence of his counsel and an interpreter during a two-hour interview before the Migration Board on 24 March 2010 and before the Migration Court on 16 February 2011. His case was examined on the merits by two bodies and leave to appeal was refused by the Migration Court of Appeal.", "132. From the records it can be seen that both the Migration Board and the Migration Court took into account that since 2007 the applicant had worked with individuals, connected to different universities, who were known to oppose the regime. He had mainly worked on creating and publishing web pages. His computer had been taken from his business premises while he was in prison in September/October 2009. Material that was critical of the regime was stored on his computer. While he had not personally criticised the regime, President Ahmadinejad, or the highest leaders, the applicant had visited some websites and had received cartoons via email. Therefore, in the applicant’s view, there was enough evidence to prove that he was an opponent of the system. It was much the same material as he had had on his computer in 2007. The domestic authorities found that the information concerning the applicant’s political activities was vague and lacked detail. Moreover, he had not pointed to or substantiated the existence of any web pages allegedly created by him over a period of two years. They also found it remarkable that the applicant had been able to continue to publish regime-critical material from 2007 until the elections in 2009, if indeed the Iranian authorities had been aware of his activities in 2007.", "133. The domestic authorities also took into account the fact that the applicant had been arrested for twenty-four hours in April 2007.", "134. They did not question the fact that, the day before the elections on 12 June 2009, the applicant and his friends had been arrested, questioned and detained in the polling station overnight.", "135. They also found it established that the applicant had participated in a demonstration and had been arrested and imprisoned again in September 2009 for twenty days and had been ill-treated, and that he had been brought before the Revolutionary Court in October 2009, which had released him.", "136. The domestic authorities further took into account the fact that the applicant had submitted an original summons to appear on 2 November 2009 before the Revolutionary Court. They found, however, that the summons could not in itself substantiate a need for protection. It was merely a summons and there were no reasons given as to why the applicant had to appear there.", "137. Making an overall assessment, the national authorities found that the political activities in which the applicant had been engaged in Iran could be considered to have taken place at a low level, which was supported by the fact that since 2009 the applicant had not received any new summonses from the Revolutionary Court and that none of the applicant’s family members remaining in Iran had been subjected to any reprisals by the Iranian authorities.", "138. In these circumstances, the Court is not convinced by the applicant’s claim that the Swedish authorities had failed duly to take into account his ill-treatment during his twenty days’ detention in September 2009, his detailed description of the hearing before the Revolutionary Court in October 2009 or the fact that he had submitted the original summons to reappear on 2 November 2009.", "139. Nor is there any evidence in the case to indicate that the Swedish authorities did not duly take the risk of detention at the airport into account when assessing globally the risk faced by the applicant.", "140. The Court finds that it cannot be concluded, either, that the proceedings before the Swedish authorities were inadequate and insufficiently supported by domestic material or by material originating from other reliable and objective sources.", "141. Moreover, and as concerns the risk assessment, there is no evidence to support the allegation that the Swedish authorities were wrong to conclude that the applicant was not a high-profile activist or political opponent. The case is thus distinguishable from, inter alia, S.F. and Others v. Sweden (cited above), in which the applicant had been involved in extensive political activities and placed under observation by the Iranian regime, K.K. v. France (no. 18913/11, 10 October 2013), in which the applicant was a former member of the Iranian intelligence services, and R.C. v. Sweden (cited above), which, inter alia, concerned the risk of detention at the airport upon return.", "142. Finally, as to the applicant’s allegation before the Grand Chamber that the Iranian authorities could identify him from the Chamber judgment and would be able to do so in the future from the Grand Chamber judgment, the Court points out that the applicant was granted anonymity when his request for a Rule 39 indication was granted in October 2011 and that, based on the material before the Court, there are no strong indications of an identification risk (see, by contrast, S.F. and Others v. Sweden, cited above, §§ 67-70, and NA. v. the United Kingdom, cited above, § 143).", "143. It follows that Articles 2 and 3 of the Convention would not be violated on account of the applicant’s political past in Iran, if he were to be expelled to this country.", "(b) The applicant’s conversion", "144. In the present case, the Swedish authorities were confronted with a sur place conversion. Initially, they therefore had to assess whether the applicant’s conversion was genuine and had attained a certain level of cogency, seriousness, cohesion and importance (see, inter alia, S.A.S. v. France [GC], no. 43835/11, § 55, 1 July 2014; Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 81, ECHR 2013; and Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011), before assessing whether the applicant would be at risk of treatment contrary to Articles 2 and 3 of the Convention upon his return to Iran.", "145. The Court observes that, according to the Government (see paragraph 104 above), in asylum cases the Swedish authorities generally follow the UNHCR Handbook and the UNHCR Guidelines and make an individual assessment of whether an alien has plausibly demonstrated that his or her conviction sur place is genuine in the sense that it is based on genuine personal religious conviction. That includes an assessment of the circumstances in which the conversion took place and whether the claimant can be expected to live as a convert upon return to the home country. Furthermore, on 12 November 2012 the Director General for Legal Affairs at the Swedish Migration Board issued a “general legal position” (see paragraph 46 above) concerning religion as grounds for asylum, including conversion, based on a judgment by the Migration Court of Appeal (MIG 5 (25) 2011:29), the UNHCR Guidelines and the judgment of the CJEU in Bundesrepublik Deutschland v. Y and Z (cited above). According to the general legal position, the credibility of the conversion must be carefully assessed in order to determine whether a genuine conversion has taken place. A person who has undergone a genuine change of faith or who risks being attributed a new religious belief and who therefore risks persecution should not be compelled to hide his or her faith solely in order to avoid persecution. In addition, on 10 June 2013 the Director General for Legal Affairs issued a “general legal position” (see paragraph 47 above) concerning the methodology for assessing the reliability and credibility of applications for international protection based on, inter alia, the assessment by the UNHCR in its report “Beyond Proof: Credibility Assessment in EU Asylum Systems”, of May 2013.", "146. In the original asylum proceedings, before the Migration Board, the applicant did not wish to rely on his conversion. The matter was referred to by the Migration Board, but the applicant explained that he considered his religion to be a private matter and “did not want to exploit his valuable new-found faith as a means of buying asylum”. With hindsight, he considered that he had not at the time been provided with sufficient legal advice and support to understand the risk associated with his conversion.", "147. The Court notes that the applicant had lived almost the whole of his life in Iran, spoke English well (see paragraph 97 above) and was experienced with computers, web pages and the Internet. He was also a regime critic. It is thus difficult to accept that he would not have become aware of the risk for converts in Iran by himself or via the congregation in the church where he was baptised shortly after his arrival in Sweden, or via the pastor who furnished him with the declaration of 15 March 2010 to be submitted to the Migration Board. Nor is the Court convinced that the applicant was not provided with sufficient legal advice and support to understand the risk associated with his conversion. It notes that the applicant never complained of these issues in the domestic proceedings. Moreover, during the hearing before the Migration Board on 24 March 2010 the official even interrupted the meeting so that the applicant could confer with his counsel on this specific point. The applicant stated that his conversion was a private matter, but it does not appear that he found this to be an impediment preventing him from talking about his religion (see paragraph 13 above). Furthermore, in his appeal to the Migration Court the applicant did rely on his conversion as a ground for asylum, and submitted the baptism certificate of 31 January 2010, explaining that the reason he had not initially wished to rely on his conversion was that he did not want to trivialise the seriousness of his beliefs. In addition, before the Migration Court on 16 February 2011, although stating anew that he did not wish to rely on his conversion as a reason for asylum, he did state that “it would, however, obviously cause [him] problems upon return”.", "148. Turning to the Swedish authorities, on 24 March 2010 they became aware that there was an issue of the applicant’s sur place conversion when the Migration Board held an oral interview with him, in the presence of his counsel and an interpreter. More specifically, the Board became aware of it because the applicant handed over the declaration of 15 March 2010 from a pastor in his congregation certifying that the applicant had been a member since December 2009 and had been baptised. The Migration Board official therefore actively questioned the applicant regarding his conversion and encouraged him and his counsel to confer about it, then learned that the applicant did not wish to rely on the conversion as a ground for asylum (see paragraph 13 above).", "149. On 29 April 2010 the Migration Board rejected the applicant’s request for asylum. As to the applicant’s conversion to Christianity, the Migration Board found that the certificate from the congregation pastor could only be regarded as a plea to the Migration Board that the applicant be granted asylum. It noted that the applicant had not initially wished to invoke his conversion as a ground for asylum and that he had stated that his new faith was a private matter. It concluded that to pursue his faith in private was not a plausible reason for believing that he would risk persecution upon return and that he had not shown that he was in need of protection in Sweden for that reason.", "150. Accordingly, despite the fact that the applicant did not wish to rely on his conversion, the Migration Board nevertheless did make some assessment of the risk that he might encounter on that ground upon his return to Iran.", "151. In his appeal to the Migration Court the applicant did rely on his conversion and explained why he had not previously wished to rely on it.", "152. During the oral hearing before the Migration Court, the applicant decided not to rely on his conversion as a ground for asylum, but added that “it would, however, obviously cause [him] problems upon return”. The views of the Migration Board were also heard. It did not question the fact that the applicant, at the time, professed the Christian faith, but it did not find that that fact in itself was sufficient for him to be considered in need of protection. It referred to the United Kingdom Home Office’s operational guidance note of January 2009.", "153. However, the Migration Court did not consider further the question of the applicant’s conversion, the way he manifested his Christian faith in Sweden at the time, how he intended to manifest it in Iran if the removal order were to be executed, or what “problems” the conversion might cause him upon his return. In its decision of 9 March 2011 dismissing the appeal, the Migration Court observed that the applicant was no longer relying on his religious views as a ground for persecution. Accordingly, the Migration Court did not carry out an assessment of the risk that the applicant might encounter, as a result of his conversion, upon returning to Iran.", "154. In his request for leave to appeal to the Migration Court of Appeal, the applicant alleged that he had relied on his conversion before the Migration Court. Moreover, he maintained that his fear that his conversion had become known to the Iranian authorities had increased. Those submissions were considered not sufficient for leave to appeal to be granted and the Migration Court of Appeal therefore refused the applicant’s request to that effect on 8 June 2011, after which the removal order became enforceable.", "155. On 6 July 2011 the applicant requested that the Migration Board stay the execution of the removal order. He relied on his conversion. His request was refused by the Migration Board and the Migration Court, which found that the conversion could not be considered a “new circumstance” that could justify a re-examination of his case. On 17 November 2011 the Migration Court of Appeal refused leave to appeal.", "156. Thus, despite being aware that the applicant had converted in Sweden from Islam to Christianity and that he might therefore belong to a group of persons who, depending on various factors, could be at risk of treatment in breach of Articles 2 and 3 of the Convention upon returning to Iran, the Migration Board and the Migration Court, due to the fact that the applicant had declined to invoke the conversion as an asylum ground, did not carry out a thorough examination of the applicant’s conversion, the seriousness of his beliefs, the way he manifested his Christian faith in Sweden, and how he intended to manifest it in Iran if the removal order were to be executed. Moreover, in the reopening proceedings the conversion was not considered a “new circumstance” which could justify a re-examination of his case. The Swedish authorities have therefore never made an assessment of the risk that the applicant might encounter, as a result of his conversion, upon returning to Iran. Having regard to the absolute nature of Articles 2 and 3 of the Convention, though, it is hardly conceivable that the individual concerned could forego the protection afforded thereunder. It follows therefore that, regardless of the applicant’s conduct, the competent national authorities have an obligation to assess, of their own motion, all the information brought to their attention before taking a decision on his removal to Iran (see paragraph 127 above).", "157. Moreover, before the Grand Chamber the applicant has submitted various documents which have not been presented to the national authorities, for example, his written statement of 13 September 2014 (regarding his conversion, the way he currently manifests his Christian faith in Sweden and how he intends to manifest it in Iran if the removal order is executed), and the written statement of 15 September 2014 by the former pastor at the applicant’s church (see paragraphs 96-97 above). In light of the material presented before the Court and of the material previously submitted by the applicant before the national authorities, the Court concludes that the applicant has sufficiently shown that his claim for asylum on the basis of his conversion merits an assessment by the national authorities. It is for the domestic authorities to take this material into account, as well as any further development regarding the general situation in Iran and the particular circumstances of the applicant’s situation.", "158. It follows that there would be a violation of Articles 2 and 3 of the Convention if the applicant were to be returned to Iran without an ex nunc assessment by the Swedish authorities of the consequences of his conversion.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "159. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "160. The applicant made no claim in respect of non ‑ pecuniary damage. Accordingly, the Court makes no award under this head. In any event, the Court considers that its finding in the present judgment constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see, to this effect, Tarakhel v. Switzerland [GC], no. 29217/12, § 137, 4 November 2014; Beldjoudi v. France, 26 March 1992, §§ 79 and 86, Series A no. 234-A; M. and Others v. Bulgaria, no. 41416/08, §§ 105 and 143, 26 July 2011; and Nizamov and Others v. Russia, nos. 22636/13 and 3 others, § 50, 7 May 2014).", "161. Before the Chamber, the applicant made a claim in respect of pecuniary damage for alleged loss of income as a web designer in the amount of 19,000 Swedish Kroner (SEK) per month from 9 March 2011 until he is granted asylum.", "162. The Government maintained that this claim should be rejected since the applicant had failed to establish both that he had suffered any pecuniary damage and that there was a causal link between a finding of a violation and the alleged pecuniary damage.", "163. The Court reiterates that it is able to make awards by way of the just satisfaction provided for in Article 41 where the loss or damage on which a claim is based has been caused by the violation found, but that the State is not required to make good damage not attributable to it (see Saadi, cited above, § 186).", "164. The applicant has not in any way substantiated a loss of income. Moreover, having regard to the Court’s finding in the present case, that there would be a violation of Articles 2 and 3 of the Convention if the applicant were to be returned to Iran without a proper ex nunc assessment by the Swedish authorities of the consequences of his religious conversion, it can see no causal link between the conditional violation found and the pecuniary damage alleged by the applicant.", "B. Costs and expenses", "165. The applicant claimed 67,175 euros (EUR) including value added tax (VAT) for costs and expenses, which comprised:", "(a) EUR 1,415 for lawyer’s fees incurred in the proceedings before the Chamber, equal to 8.4 hours at an hourly rate of SEK 1,205 (exclusive of VAT);", "(b) EUR 42,683 for lawyers’ fees incurred in the proceedings before the Grand Chamber, equal to 311 hours at an hourly rate of EUR 134,05 (exclusive of VAT) and 7 hours at an hourly rate of EUR 136;", "(c) EUR 9,860 for travel costs and an allowance for expenses incurred by his three counsel in attending the hearing before the Grand Chamber, including hotel bills for two nights (EUR 1,190) and excess baggage charge (EUR 235);", "(d) EUR 319 for costs related to a meeting between the applicant and his counsel;", "(e) EUR 12,898, equal to 25% VAT on items (b) and (c).", "166. The Government did not question the hourly rate invoked by the applicant as it corresponded to the general Swedish hourly legal-aid fee, but they found that the number of hours invoiced before the Grand Chamber was excessive in relation to the subject matter and the complexity of the case. They considered that an amount corresponding to 120 hours would be reasonable, thus approximately EUR 16,231 (VAT excluded). Moreover, the Government found that the travel costs and expenses were excessive.", "167. According to the Court’s established case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum.", "168. In respect of the lawyers’ fees, be it before the Chamber or the Grand Chamber, the Court can accept an hourly rate as claimed by the applicant. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 including VAT (see, for example, Söderman v. Sweden [GC], no. 5786/08, § 125, ECHR 2013; Tarakhel v. Switzerland, cited above, § 142; X and Others v. Austria [GC], no. 19010/07, § 163, ECHR 2013; Nada v. Switzerland [GC], no. 10593/08, § 245, ECHR 2012; and Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 117, ECHR 2011).", "169. Turning to the other costs and expenses before the Grand Chamber, the Court considers that those were actually and necessarily incurred, and reasonable as to quantum.", "170. In conclusion, the Court awards the applicant the sum of EUR 37,644 including VAT in costs and expenses. This sum includes the amount granted as legal aid by the Court, namely EUR 3,902. The remaining amount, EUR 33,742 is to be paid by the respondent State.", "C. Default interest", "171. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "A. Background and proceedings before the national authorities", "10. The applicant was born in 1982 and lives in Sweden.", "11. On 29 July 2010 he applied for asylum in Sweden, stating that he had entered the country three days earlier.", "12. On 6 August 2010 the Migration Board ( Migrationsverket ) held a first interview with the applicant. An in -depth interview was held on 20 August 2010, at which the applicant ’ s officially appointed counsel and an interpreter were present. The applicant stated essentially the following.", "13. He had left Libya for Tunisia in April 2010, where he had remained until he had travelled to Sweden in July 2010, with the assistance of smugglers and a fake French passport. In Libya he had been a soldier, working as a guard at a military base in Tripoli where some persons had paid him to transport illegal weapons for powerful clans with connections to the authorities. He had been working for them for more than a year when in November 2009 he had been stopped at a road check and then taken to an unknown location, where he had been subjected to interrogation and torture. He had been charged with possession of illegal weapons and car theft and had then been moved to a military prison. During the torture his arm had been seriously injured and, about two months after his transfer to the military prison, he had been taken to a civil hospital for treatment. After the doctor had treated him, he had managed to escape. If he were returned to Libya, he would risk at least ten years ’ imprisonment for the criminal offences. He would further risk being killed by the clans since he had revealed their names under torture.", "14. The Migration Board officer asked whether the applicant had other grounds for requesting asylum, to which he replied no. He had lived well in Libya until he was arrested and had even planned to marry a woman in May 2010.", "15. On 21 February 2011 the applicant added to his grounds for asylum that he was homosexual and had a relationship with a man, N. , who held a permanent residence permit in Sweden. He had moved in with N. in December 2010.", "16. At a supplementary interview on 1 November 2011 the applicant stated that he had previously been heterosexual but had become interested in N. No one in Libya knew about his sexual orientation and he had never had a homosexual relationship in Libya. He and N. had married in Sweden in September 2011. If he had to return to Libya to apply for family reunion from there, it would become known that he was married to a man and he would risk persecution and ill-treatment.", "17. On 16 December 2011 the Migration Board rejected the application. It found, inter alia, that the applicant had given diverging information about his passport at the interviews, and also given contradictory statements about when he had met N. and about their relationship. It concluded that the applicant ’ s story, in relation both to events in Libya and to his relationship with N., lacked credibility and was not sufficient to justify granting him a residence permit in Sweden. Furthermore, the Board noted that substantial changes had occurred in Libya after the applicant had left the country. It considered that he had failed to substantiate his claim that, on the basis of the criminal accusations against him, he would risk persecution by the authorities on his return or that the authorities would not be able to protect him against harassment by the clans. As to the applicant ’ s relationship with N., the Board referred to the main rule laid down in the Aliens Act, according to which an alien seeking a residence permit in Sweden on account of family ties or a serious relationship must have applied for and been granted such a permit before entering the country. The Board considered that it would not be unreasonable to require the applicant to file such an application from Libya in accordance with the main rule.", "18. On 13 September 2012 the Migration Court ( Migrationsdomstolen ) rejected an appeal lodged by the applicant. It found first of all that the general situation in Libya was not serious enough to justify granting the applicant asylum in the absence of individual reasons. Turning to the applicant ’ s individual reasons, the court found that the applicant ’ s account was not credible, stressing that he had submitted his passport only at the oral hearing before the court, and that it appeared from it that he had been granted a Schengen visa by the Maltese Embassy in Tripoli in May 2010 and that he had entered Sweden on 15 June 2010. Thus, he had deliberately given false statements before the Migration Board concerning his passport, the manner in which he had travelled to Sweden and the date of his arrival. He had also given contradictory statements concerning his knowledge of the possibilities of applying for asylum in Sweden and the alleged threats against him in Libya. Thus, the court did not believe the applicant ’ s asylum story.", "19. The court did not question the applicant ’ s homosexuality. However, it considered that he had failed to substantiate his claim that there was a threat against him in Libya on that account. It noted that, according to the applicant ’ s own statements, it was not known in Libya that he was homosexual. The court found it unlikely that, as claimed by the applicant, Libyans in Sweden who knew about his sexual orientation would be more willing to spread this information simply because the applicant was to return to Libya. In sum, it concluded that the applicant had failed to show that he would risk persecution or ill-treatment if he returned to Libya. As far as his relationship with N. was concerned, the court observed that all embassy personnel had an obligation to respect confidentiality and that there were no impediments to the applicant ’ s applying for a residence permit from abroad.", "20. One lay judge gave a dissenting opinion and considered that it could not be ruled out that information about the applicant ’ s sexual orientation might leak from an embassy.", "21. The applicant made a further appeal to the Migration Court of Appeal ( Migrationsöverdomstolen ), which on 10 October 2012 refused him leave to appeal. The expulsion order against the applicant thereby became enforceable.", "22. On 10 December 2012 the Migration Board rejected a request by the applicant for reconsideration of his case. The applicant had submitted, inter alia, that a Libyan in Sweden had travelled to Libya and had told the applicant ’ s brother that he was married to another man. The applicant ’ s uncle had later called him and threatened to kill him if he returned to Libya, since he had shamed the family. The Board found no reason to depart from the main rule that an application for family reunion had to be lodged from abroad. The applicant ’ s claim that his relatives had threatened him was not considered sufficient to constitute a permanent impediment to the enforcement of the expulsion order, and thus there were no grounds to reconsider the applicant ’ s case.", "B. Developments subsequent to the Chamber judgment", "23. After the Chamber had delivered its judgment on 26 June 2014, the panel of the Grand Chamber granted the applicant ’ s referral request on 17 November 2014 (see paragraphs 7-8 above).", "24. In the meantime, on 4 November 2014, the Migration Board ’ s Director General for Legal Affairs issued a Legal Comment concerning the situation in Libya (“ Rättslig kommentar angående situationen i Libyen ”). It noted, inter alia, that in May 2014 the Libyan Parliament had elected Ahmed Matiq as Prime Minister, resulting in strong protests and violent fighting between rival groups. In June the Supreme Court had annulled Matiq ’ s election and a few days later he had resigned. Parliamentary elections had followed and in mid-July a coalition had been formed made up of different militia forces with connections to the Muslim Brotherhood and other Islamist groups within the Parliament. This had led to a further escalation of the situation, with militias clashing over control of the airport in Tripoli and intensified fighting in Benghazi. The violence had also spread to residential areas around Tripoli, resulting in many civilian casualties. Tens of thousands of people had been forced to flee from their homes and, according to the United Nations, there were roughly 227,000 internally displaced persons, of whom more than 160,000 had been displaced since the fighting erupted in May 2014. Another 100,000 persons were reported to have fled the fighting to neighbouring countries. The civilian population was also having difficulties moving freely within the country owing to the sporadic roadblocks which had been set up by various militia groups. Moreover, the country ’ s two international airports, Tripoli and Benghazi, had been seriously damaged in the fighting and were partially closed, without any likelihood that they would open for normal business within the foreseeable future.", "25. Against this background, the Director General made the following assessment of the security situation in Libya and the possibility of returning to the country:", "“ Fighting is ongoing between different actors in several of Libya ’ s coastal cities. The fighting is considered to amount to an armed conflict within the meaning of the Aliens Act. Owing to the political instability, there is currently nothing to indicate that the fighting will stop within the near future. The fighting is serious but not so all-encompassing that every person who returns is at risk of being subjected to violence. An individual assessment must therefore be carried out in each case in accordance with the principles of the Elgafaji judgment [ Elgafaji v. Staatssecretaris van Justitie, C-465/07, Court of Justice of the European Union, 17 February 2009 ].", "In the other parts of Libya the security situation, owing to the political instability, is considered to amount to serious disturbances of the kind specified in Chapter 4, section 2 ( a ) of the Aliens Act.", "The situation for persons returning to Libya is currently difficult. However, the difficulties have arisen only recently and it is still far too early to establish that they amount to a practical impediment to enforcement such as to justify issuing a residence permit.", "The Migration Board is continuing to monitor the situation in Libya and the question of impediments to enforcement, and intends to conduct a new assessment within a few months.”", "26. In the light of the information in the Legal Comment concerning the situation in Libya, and noting that the Court had referred the applicant ’ s case to the Grand Chamber, the Migration Board decided to examine the applicant ’ s case again of its own motion and to determine whether there were impediments to the enforcement of the expulsion order against him.", "27. On 17 December 2014 the Migration Board granted the applicant a permanent residence permit in Sweden. It noted first of all that it could not reconsider a decision pronounced by a higher -ranking authority or examine the correctness of the assessments made by such authorities. Since the expulsion order had acquired legal force, the Board could only consider whether the new circumstances in the case amounted to an impediment to the enforcement of the expulsion order. After having referred to the relevant provisions of the Aliens Act and its preparatory works, it made the following assessment of the applicant ’ s case:", "“You are homosexual and come from Libya. You are married to a man with whom you have been living in Sweden since 7 December [ 201 0]. Your sexual orientation and connection to your husband were the subject of examination by the Migration Board and the Migration Court. They can therefore not be considered to be new circumstances within the meaning of the Aliens Act.", "On 4 November 2014 the Migration Board ’ s Director General for Legal Affairs issued a new Legal Comment concerning the situation in Libya. From this it appears that fighting is ongoing between different actors in several of Libya ’ s coastal cities, including your hometown, Tripoli. The fighting is considered to amount to an armed conflict within the meaning of the Aliens Act. Owing to the political instability, there is currently nothing to indicate that the fighting will stop within the near future. The fighting is serious but not so all-encompassing that every person returning is at risk of being subjected to violence. An individual assessment must therefore be carried out in each case in accordance with the principles of the Elgafaji judgment.", "According to the Migration Board ’ s assessment, the deterioration in the security situation in Libya since the Migration Board and the Migration Court examined your grounds for protection, seen against the background of your sexual orientation, is to be regarded as a new circumstance.", "Your sexual orientation was not questioned by the Migration Board or the Migration Court and you have, during your years in Sweden, manifested your orientation by, among other things, entering into marriage with a man here. It can therefore be presumed that your intention is to continue to live openly as a homosexual also if you return to Libya and that you would thereby risk attracting the interest of the Libyan authorities or of individual persons. In the light of the deterioration in the security situation in Libya it is probable, in the Migration Board ’ s assessment, that were you to return you would risk being subjected to persecution on account of your sexual orientation.", "Against this background, the Migration Board finds that new circumstances have emerged which amount to an impediment to enforcement for the purposes of Chapter 12, section 18 of the Aliens Act. The Migration Board therefore decides to grant you a permanent residence permit.”" ]

[ "THE LAW", "I. REQUEST TO STRIKE OUT THE APPLICATION", "28. The applicant complained that his return to Libya would entail a violation of Article 3 of the Convention, which reads:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties ’ submissions", "29. The Government requested the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 of the Convention, on the ground that following the Migration Board ’ s decision of 17 December 2014 the applicant no longer faced a risk of being expelled to Libya. Consequently, in their view, the matter had been resolved at the domestic level and they did not consider that there were any special circumstances regarding respect for human rights which required the continued examination of the application before the Court. In the alternative, the Government contended that the application should be declared inadmissible as the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention.", "30. The applicant stated that he wished to maintain the application and asked the Court to proceed to consider the application on the merits. In his view, the “matter” before the Court had not been resolved, since it encompassed not only the question whether his potential future removal to Libya would violate Article 3. It also concerned the separate question whether the previous decisions by the Swedish authorities had been in breach of Article 3 since, at the time when they had taken their decisions, they knew or ought to have known that his removal to Libya would expose him to a real risk of inhuman or degrading treatment. Moreover, he considered that the domestic authorities ’ decisions were so flawed as to amount to a procedural violation of Article 3. The “matter” before the Grand Chamber now also included the correctness of the Chamber ’ s reasoning under Article 3. Furthermore, according to the applicant, respect for human rights required that the Grand Chamber continue the examination of the case, since it raised serious issues of fundamental importance relating to homosexuals ’ rights and how to assess those rights in asylum cases all over Europe. Lastly, referring to his arguments above, he considered that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention. While he was grateful for the permanent residence permit, it did not offer full redress, considering the worry, stress and uncertainty caused to him by the domestic authorities ’ initial decisions.", "B. The Court ’ s assessment", "31. Article 37 § 1 of the Convention provides:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "32. The Court observes at the outset that, according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (see, among other authorities, Paez v. Sweden, 30 October 1997, Reports of Judgments and Decisions 1997 ‑ VII; Sarwari v. Austria ( dec. ), no. 21662/10, 3 November 2011; M.A. v. Sweden ( dec. ), no. 28361/12, 19 November 2013; Isman v. Switzerland ( dec. ), no. 23604/11, 21 January 2014; O.G.O. v. the United Kingdom ( dec. ), no. 13950/12, 18 February 2014; and I.A. v. the Netherlands ( dec. ), no. 76660/12, 27 May 2014).", "33. The reason for this is that the Court has consistently approached the issue as one of a potential violation of the Convention, being of the view that the threat of a violation is removed by virtue of the decision granting the applicant the right of residence in the respondent State concerned (see Paez, cited above, § 29). Following this approach, it has previously found that Article 3 would not be violated since the applicant no longer faced a real and imminent risk of being expelled (see, for instance, A.G. v. Sweden ( dec. ), no. 22107/08, 6 December 201 1, and H v. Norway ( dec. ) no. 51666/13, 17 February 2015 ).", "34. As regards the present case, the Court notes that there has been no friendly settlement or agreed arrangement. The granting of a permanent residence permit to the applicant, which effectively repealed the expulsion order, was a measure taken by the Migration Board of its own motion on 17 December 2014, essentially on account of the deterioration in the security situation in Libya since the summer of 2014, as set out in the Migration Board ’ s Director General ’ s Legal Comment on the situation in Libya dated 4 November 2014 (see paragraphs 2 4 -2 5 above). It is further to be observed that, in so far as his application was declared admissible, the applicant ’ s initial complaint under the Convention was that he feared that his expulsion to Libya would expose him to ill-treatment contrary to Article 3 of the Convention. That threat of a violation was removed by the Migration Board ’ s decision of 17 December 2014 repealing the expulsion order – the enforcement of which had been stayed pending the proceedings – and granting him permanent residence in Sweden.", "35. Therefore, in line with its case-law as set out above, the Court finds that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention.", "36. Contrary to what the applicant suggests, in examining this question the Court does not need to enquire retrospectively into whether a real risk engaging the respondent State ’ s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment. These are historical facts but they do not shed light on the applicant ’ s current situation, in which the impugned risk has been removed; this latter circumstance is decisive for the Court ’ s finding that the matter has been resolved (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008 ).", "37. As to the applicant ’ s submission that there are special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case (Article 37 § 1 in fine ), the Court notes that in its decision of 17 December 2014 the Migration Board took the applicant ’ s sexual orientation into account. It found that he was in need of protection in Sweden because the deterioration in the security situation in his home country would put him at risk of being persecuted since he lived openly as a homosexual and could be expected to continue doing so on his return. Against this background, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.", "38. Accordingly, it is appropriate to strike the application out of the list of cases.", "II. RULE 39 OF THE RULES OF COURT", "39. In view of the above, the application of Rule 39 of the Rules of Court is discontinued." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. In 1995, at the age of 22, the applicant met a man (“X”) in Iran while attending a secretarial college. She fell in love with him and after some time they decided to get married.", "10. However, X’s family was opposed to their marriage. In June 1997 X married another woman. The applicant continued to see him and to have sexual relations with him.", "11. In October 1997 the applicant and X were stopped by policemen while walking along a street. The policemen arrested the couple and detained them in custody as X was married.", "12. The applicant underwent a virginity examination while in custody. After a few days she was released from detention with the help of her family.", "13. In November 1997 the applicant entered Turkey illegally. In February 1998 the applicant went to Istanbul, from where she tried to fly to Canada via France using a forged Canadian passport.", "14. When the applicant arrived at the airport in Paris, the French police found her to be in possession of a forged passport.", "15. On 4 February 1998 the applicant was put on a plane for Istanbul. Following her arrival at Istanbul Airport at 1 a.m. on 5 February 1998 she was arrested by policemen on the ground that she had entered Turkey using a forged passport. Her passport was sent for examination.", "16. On 6 February 1998 the applicant was transferred from a police station inside the airport to the Aliens Department of the Istanbul Security Directorate. She was brought before the Bakırköy public prosecutor on the ground that she had entered Turkey using a forged passport in contravention of the Passport Act 1950. The public prosecutor ordered her release, finding she had not entered Turkey of her free will. The applicant was handed over to the Istanbul Security Directorate with a view to her deportation. When the applicant realised that she was going to be sent to Iran she told the Aliens Department that she was an Iranian national. The applicant lodged an asylum application with the Aliens Department. The police rejected her application as it had been submitted out of time. The applicant was informed that under section 4 of the Asylum Regulation 1994 she should have lodged her application for asylum within five days of her arrival in Turkey.", "17. According to the applicant, she was held in detention at the Aliens Department until 26 March 1998. Thereafter, following the intervention of the Ankara branch office of the United Nations High Commissioner for Refugees (UNHCR), she was accommodated at a hotel in Istanbul.", "18. On 12 February 1998 a staff member of the UNHCR, with the permission of the authorities, interviewed the applicant about her asylum request under the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”). On 16 February 1998 the applicant was granted refugee status by the UNHCR on the basis that she had a well-founded fear of persecution if removed to Iran as she risked being subjected to inhuman punishment, such as death by stoning, or being whipped or flogged.", "19. On 8 March 1998 the applicant lodged an application with the Ankara Administrative Court against her deportation. She also asked for a stay of execution of her deportation.", "20. On 16 April 1998 the Ankara Administrative Court dismissed the applicant’s petitions on the ground that there was no need to suspend her deportation since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant.", "21. On 4 November 1998 the Ankara Administrative Court found that there was no actual risk of her being deported in view of the fact that she had been granted a residence permit pending the outcome of her application under the European Convention on Human Rights. The court found that it was not required to suspend the deportation order since no such order had yet been made." ]

[ "II. RELEVANT LAW and practice", "A. Administrative law provisions", "22. Article 125 of the Turkish Constitution provides, inter alia :", "“All acts or decisions of the authorities are subject to judicial review ...", "If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...”", "23. Article 155 of the Constitution states, inter alia :", "“The Supreme Administrative Court is the final instance for reviewing decisions and judgments given by administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law. ...”", "24. Article 5 of the Code on the establishment and duties of tax courts, administrative courts and regional administrative courts (no. 25765) provides, inter alia :", "“Administrative courts deal with:", "(a) actions for annulment", "(b) administrative actions", "(c) ...", "except for those actions which are within the competence of tax courts and those which should be dealt with by the Supreme Administrative Court as a first-instance court.”", "25. Article 25 of the Act on the Supreme Administrative Court provides:", "“Final decisions rendered by the administrative courts and the tax courts, as well as final decisions rendered by the Supreme Administrative Court acting as a first-instance court may be appealed to and dealt with by the Supreme Administrative Court.”", "B. The law and practice governing asylum-seekers", "26. Turkey has ratified the Geneva Convention and the 1967 Protocol thereto. It has exercised the geographic preference option under the 1951 Convention in order to limit the grant of refugee status to asylum-seekers from European countries. For humanitarian reasons, Turkey issues temporary residence permits to asylum-seekers from non-European countries who are recognised by the UNHCR as refugees pending their resettlement in a third country by that organisation.", "27. The Ministry of the Interior issued a regulation on 30 November 1994 concerning asylum-seekers seeking asylum in Turkey or who are to be resettled in a third country. According to this Regulation, foreign nationals arriving in Turkey to seek asylum must submit their asylum application to the police within five days of their arrival in Turkey. Those who enter illegally are required to submit their application to the police at the border town nearest the point where they entered the country. Asylum-seekers entering the country legally may submit their application to the police in any city within five days of their arrival.", "28. A person who enters Turkey illegally and does not apply to the Turkish authorities within five days of his or her entry cannot be accepted as a refugee.", "29. Asylum requests are examined by the Ministry of the Interior. Non-European asylum-seekers who receive a positive decision may then submit their cases to the UNHCR for resettlement. The Ministry of the Interior considers the merits of an asylum application from the standpoint of Turkey ’s obligations under the Geneva Convention and has regard to the opinions of the Ministry of Foreign Affairs and other relevant ministries and agencies. Foreigners whose requests are not accepted are liable to be deported by the local authorities.", "30. An amendment was introduced to the 1994 Asylum Regulation in January 1999. According to the amendment, the five-day period in which to lodge an asylum request has now been increased to ten days. Furthermore, an asylum-seeker whose application has been refused may now appeal within fifteen days of the refusal to the competent governorship. The appeal is to be assessed by the superior of the official who took the initial decision to refuse asylum.", "C. Recent international materials commenting on the punishment of adultery in Iran", "31. In its 1999 Annual Report, Amnesty International concluded that judicial punishments amounting to torture or cruel, inhuman or degrading punishment continued to be reported. Flogging was reportedly imposed for a wide range of offences, at times in conjunction with the death penalty or a custodial sentence. An Iranian woman, the co-accused of a foreign businessman, was reportedly sentenced to 100 lashes in October 1999 after she was convicted of illicit sexual relations. It was unknown whether the sentence was carried out. In November 1999 an Iranian national was acquitted after he escaped from the pit in which he had been buried to the waist in order to be stoned to death in the town of Lahijan. He had been sentenced to death for adultery.", "32. The 1999 Country Reports on Human Rights Practices, released on 25 February 2000 by the US Department of State, mention, with reference to Iran, that harsh punishments are carried out, including stoning and flogging. Article 102 of the Islamic Penal Code details the methods authorities should follow when conducting a stoning: “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.” According to press accounts, a man was stoned to death in April 1999 in the town of Babol, which borders the Caspian Sea. He was alleged to have killed three of his own sons. Prior to the stoning, he received sixty lashes. The first stone was cast by the judge who sentenced him to death. The law also allows for the relatives of murder victims to take part in the execution of the killer.", "THE LAW", "I. Alleged violation of article 3 of the convention", "33. The applicant maintained that her removal to Iran would expose her to treatment prohibited by Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "34. The applicant stated that she had committed adultery in Iran and had to leave before criminal proceedings could be brought against her. She submitted that she would probably have been prosecuted and sentenced to a form of inhuman punishment. In support of her assertion the applicant relied on, inter alia, reports prepared by Amnesty International which refer to cases of women in Iran having been stoned to death for having committed adultery. She stressed that she was granted refugee status by the UNHCR on the ground that she had a well-founded fear of persecution as she belonged to a particular social group, namely women who have transgressed social mores according to the UNHCR guidelines on gender-based persecution.", "35. The applicant further claimed that, bearing in mind the established case-law of the Court, stoning to death, flogging and whipping, which are penalties prescribed by Iranian law for the offence of adultery, must be considered forms of prohibited treatment within the meaning of Article 3 of the Convention.", "36. The Government maintained in reply that when becoming a Contracting Party to the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”), Turkey had availed itself of the geographic preference option in the Convention to give preference to asylum-seekers from European countries (see paragraph 26 above). However, for humanitarian reasons the authorities issue temporary residence permits to non-European asylum-seekers like the applicant who are recognised as refugees by the UNHCR pending their resettlement in a third country. Given that the applicant failed to comply with the five-day requirement under the 1994 Asylum Regulation (see paragraphs 27-28 above), this facility could not be extended to her.", "37. The Government further questioned the substance of the applicant’s fears. In their opinion the fact that the applicant failed to make an application to the authorities or to the UNHCR when she arrived in Turkey in 1997 was at variance with her allegations under Article 3 of the Convention. It was also significant that she did not claim asylum status when she arrived at the airport in Paris (see paragraph 14 above). In the Government’s view, it must be doubted whether the applicant would ever have sought refugee status if she had managed to enter Canada.", "38. The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. Moreover, the right to political asylum is not contained in either the Convention or its Protocols (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, § 102).", "However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 90-91; the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, §§ 69-70; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74).", "39. The Court further observes that, having regard to the fact that Article 3 enshrines one of the most fundamental values of a democratic society and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, a rigorous scrutiny must necessarily be conducted of an individual’s claim that his or her deportation to a third country will expose that individual to treatment prohibited by Article 3 (see, mutatis mutandis, the Chahal judgment cited above, p. 1855, § 79, and p. 1859, § 96).", "40. The Court is not persuaded that the authorities of the respondent State conducted any meaningful assessment of the applicant’s claim, including its arguability. It would appear that the applicant’s failure to comply with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran (see paragraph 16 above). In the Court’s opinion, the automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Ankara Administrative Court, on her application for judicial review, limited itself to the issue of the formal legality of the applicant’s deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin.", "41. The Court for its part must give due weight to the UNHCR’s conclusion on the applicant’s claim in making its own assessment of the risk which the applicant would face if her deportation were to be implemented. It is to be observed in this connection that the UNHCR interviewed the applicant and had the opportunity to test the credibility of her fears and the veracity of her account of the criminal proceedings initiated against her in Iran by reason of her adultery. It is further to be observed that the Government have not sought to dispute the applicant’s reliance on the findings of Amnesty International concerning the punishment meted out to women who are found guilty of adultery (see paragraph 34 above). Having regard to the fact that the material point in time for the assessment of the risk faced by the applicant is the time of its own consideration of the case (see the Chahal judgment cited above, p. 1856, § 86), the Court is not persuaded that the situation in the applicant’s country of origin has evolved to the extent that adulterous behaviour is no longer considered a reprehensible affront to Islamic law. It has taken judicial notice of recent surveys of the current situation in Iran and notes that punishment of adultery by stoning still remains on the statute book and may be resorted to by the authorities (see paragraphs 31-32 above).", "42. Having regard to the above considerations, the Court finds it substantiated that there is a real risk of the applicant being subjected to treatment contrary to Article 3 if she were to be returned to Iran.", "Accordingly, the order for her deportation to Iran would, if executed, give rise to a violation of Article 3.", "II. alleged violation of article 13 of the convenTion", "43. The applicant further complained that she did not have an effective remedy to challenge the decision whereby her application for asylum was rejected as being out of time. She averred that this amounted to a breach of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "44. The applicant maintained that since her application for asylum was out of time she was never afforded an opportunity to explain to the authorities why she feared deportation to Iran. There was no appeal against the rejection of her asylum application. Furthermore, her action before the Ankara Administrative Court could not be considered an effective remedy since that court could not suspend the deportation decision with immediate effect. The court did not give detailed reasons for its decision not to suspend the applicant’s deportation since the decision was an interim one and a separate decision would have been required.", "45. The Government acknowledged that the Ankara Administrative Court rejected the applicant’s request for suspension and annulment of the deportation order. However, she failed to request the annulment of the decision rejecting her asylum request. The Ankara Administrative Court was bound to dismiss the applicant’s request with regard to her deportation since no such order had as yet been made.", "46. With reference to the provisions of Article 125 of the Constitution (see paragraph 22 above), the Government maintained that the domestic courts are empowered to stay the execution of an administrative act if irreversible harm would be caused to a plaintiff and the act is clearly unlawful. Furthermore, an appeal from the decision of an administrative court lies to the Supreme Administrative Court (see paragraph 25 above).", "47. For these reasons, the Government contended that the applicant had an effective remedy to challenge her deportation.", "48. The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. Moreover, in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see the Chahal judgment cited above, pp. 1869-70, § 145).", "49. The Court reiterates that there was no assessment made by the domestic authorities of the applicant’s claim to be at risk if removed to Iran. The refusal to consider her asylum request for non-respect of procedural requirements could not be taken on appeal. Admittedly the applicant was able to challenge the legality of her deportation in judicial review proceedings. However, this course of action entitled her neither to suspend its implementation nor to have an examination of the merits of her claim to be at risk. The Ankara Administrative Court considered that the applicant’s deportation was fully in line with domestic law requirements. It would appear that, having reached that conclusion, the court felt it unnecessary to address the substance of the applicant’s complaint, even though it was arguable on the merits in view of the UNHCR’s decision to recognise her as a refugee within the meaning of the Geneva Convention.", "50. In the Court’s opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. Since the Ankara Administrative Court failed in the circumstances to provide any of these safeguards, the Court is led to conclude that the judicial review proceedings relied on by the Government did not satisfy the requirements of Article 13.", "Accordingly, there has been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "51. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "52. The applicant stated in her application form that she sought just satisfaction for the violation of her rights. She repeated this request in her pre-admissibility submissions dated 17 June 1999. No details of her claims under Article 41 of the Convention were supplied.", "53. The Government did not explicitly address the applicant’s requests at any stage of the proceedings.", "54. The Court considers that in the circumstances of the instant case a finding of a potential violation of Article 3 of the Convention and an actual violation of Article 13 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage that the applicant may have suffered.", "B. Costs and expenses", "55. In her application form the applicant stated that she sought the payment of her costs and expenses for bringing the Convention proceedings. No details of her claims under Article 41 of the Convention were supplied. The applicant received the sum of 5,000 French francs (FRF) by way of legal aid from the Council of Europe.", "56. The Government made no submissions under this head either.", "57. The Court observes that, in the absence of details of the applicant’s claim under this head, the sum received by the applicant by way of legal aid from the Council of Europe (FRF 5,000) can be considered to cover adequately any costs and expenses incurred in connection with the Convention proceedings." ]

[ "I. Particular circumstances of the case", "A. The applicant", "6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a three-year term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts.", "B. The applicant ’ s arrival in the United Kingdom and subsequent imprisonment", "7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days.", "However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years ’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission ’ s report had been made public.", "C. Diagnosis of AIDS", "8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia (\"PCP\") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom.", "9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations.", "10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant ’ s removal to St Kitts.", "D. The applicant ’ s request to remain in the United Kingdom", "11. By letter dated 23 January 1996, the applicant ’ s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicant ’ s solicitors the Chief Immigration Officer stated:", "\"In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...] ’ s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ...\"", "E. Judicial review proceedings", "12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D. ’ s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicant ’ s argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment:", "\"Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere.\"", "F. Reports on the applicant ’ s medical condition, treatment and prognosis", "13. Since August 1995, the applicant ’ s \"CD4\" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue.", "14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated:", "\"His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant ’ s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ...\"", "15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant ’ s prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected.", "G. Medical facilities in St Kitts", "16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed.", "17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicant ’ s representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS.", "Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives.", "H. The applicant ’ s family situation in St Kitts", "18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts.", "I. The applicant ’ s situation since the adoption of the Commission ’ s report", "19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection.", "20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with \"D4T\" and \"3TC\" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts.", "21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicant ’ s condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicant ’ s life was drawing to a close much as the experts had predicted (see paragraph 15 above)." ]

[ "II. Relevant domestic law and practice", "22. The regulation of entry into and stay in the United Kingdom is governed by Part 1 of the Immigration Act 1971. The practice to be followed in the administration of the Act for regulating entry and stay is contained in statements of the rules laid by the Secretary of State before Parliament (\"the Immigration Rules\").", "23. Section 3 (1) provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of the Act. Leave to enter may be granted for a limited or for an indefinite period.", "24. Under section 4 (1) of the Act the power to grant or refuse leave to enter is exercised by immigration officers whereas the power to grant leave to remain in the United Kingdom is exercised by the Secretary of State. These powers are exercisable by notice in writing given to the person affected.", "25. A person, such as the applicant, who has been refused leave to enter but is physically in the United Kingdom pending his removal and seeks to be allowed to stay there does not fall to be treated as applying for leave to remain. Since no leave to enter had been granted to the applicant, it was right according to the judgment of Sir Iain Glidewell in R. v. Secretary of State for the Home Department, ex parte D. (Court of Appeal, 15 February 1996) for the immigration officer to treat his application as an application for leave to enter rather than for leave to remain.", "A. Policy guidelines on how to proceed in cases in which persons seeking to enter or remain in the United Kingdom are suffering from AIDS or are HIV-positive", "26. The Immigration and Nationality Department of the Home Office issued a policy document (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelines specifies that the fact that a person is suffering from AIDS or is HIV-positive is not a ground for refusing leave to enter or leave to remain if the person concerned otherwise qualifies under the Immigration Rules. Equally, this fact is not in itself a sufficient ground to justify the exercise of discretion where the person concerned has not met the requirements of the Rules.", "The policy guidelines distinguish between applications for leave to enter and applications for leave to remain.", "27. On applications for leave to enter (paragraph 4 of the guidelines), where the person is suffering from AIDS, the policy and practice is to adhere to the provisions of the Immigration Rules in the normal way. Where such a person does not qualify under the Rules, entry is refused.", "28. On applications for leave to remain (paragraph 5 of the guidelines), the application should be dealt with normally on its merits under the applicable Rules. However, there is a discretion outside the Rules which can be exercised in strong compassionate circumstances. Paragraph 5.4 states that:", "\"... there may be cases where it is apparent that there are no facilities for treatment available in the applicant ’ s own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain.\"", "B. Other relevant materials", "29. Among the documentary materials submitted by the applicant, are the following.", "1. International policy statements on human rights and AIDS", "30. International concern about AIDS has resulted in the adoption of several international texts which have addressed, inter alia, the protection of the human rights of the victims of the disease. Thus, the United Nations Commission on Human Rights adopted a resolution on 9 March 1993 on the protection of human rights in the context of human immunodeficiency virus or acquired immunodeficiency syndrome in which it called upon \"all States to ensure that their laws, policies and practices introduced in the context of AIDS respect human rights standards\".", "31. At a Summit of Heads of Government or Representatives of forty-two States meeting in Paris on 1 December 1994, a declaration was adopted in which the participating States solemnly declared their obligation \"to act with compassion for and in solidarity with those with HIV or at risk of becoming infected, both within [their] societies and internationally\".", "2. Extract of the WHO report on \"Health conditions in the Americas \", 1994, Volume II, concerning St Kitts and Nevis", "32. \"Health and living conditions ... there are a number of serious environmental problems, such as inadequate disposal of solid and liquid waste - especially untreated sewage - into coastal lands and waters, resulting in coastal zone degradation, fish depletion and health problems (gastro ‑ enteritis) ...\"", "33. According to this publication, there are two general hospitals in St Kitts, one with 174 beds and the other with 38. There is also a \"cottage\" hospital with 10 beds. There are two homes providing geriatric care.", "3. \"Treatment issues - a basic guide to medical treatment options for people with HIV and AIDS\" produced in April 1996 by the Terrence Higgins Trust", "34. This guide describes the three medical strategies available for treating HIV infection and AIDS: using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune system, treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the immune system. Amongst the first category, several drugs can be used, including AZT (also known as Zidovudine or its tradename Retrovir ). This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells and the build-up of virus in the body is slowed down. However, the existing drugs are only partially effective and at best can only delay the worsening of HIV-related disease rather than prevent it.", "35. As regards the second category, persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections. These commonly include cytomegalovirus (herpes virus), Kaposi ’ s sarcoma, anaemia, tuberculosis, toxoplasmosis and PCP. PCP is a form of pneumonia which in people infected with HIV may affect the lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs. In the case of PCP, which was a common cause of death during the first years of the epidemic and is still one of the commonest AIDS illnesses, options include the long-term taking of antibiotics such as cotrimoxazole and the use of nebulised pentamidine which is intended to protect the lungs.", "36. In relation to the third category, treatment which strengthens or restores the immune system, research has yet to produce any clear results.", "PROCEEDINGS BEFORE THE COMMISSION", "37. The applicant lodged his application (no. 30240/96) with the Commission on 15 February 1996. He alleged that his proposed removal to St Kitts would be in violation of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had been denied an effective remedy to challenge the removal order in breach of Article 13 (art. 13).", "The Commission declared the application admissible on 26 June 1996. In its report of 15 October 1996 (Article 31) (art. 31), it expressed the opinion that Article 3 (art. 3) would be violated if the applicant were to be removed to St Kitts (eleven votes to seven); that it was unnecessary to examine the complaint under Article 2 (art. 2) (unanimously); that no separate issue arose under Article 8 (art. 8) (unanimously); and that there had been no violation of Article 13 (art. 13) (thirteen votes to five). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3]", "FINAL SUBMISSIONS TO THE COURT", "38. In their memorial and at the oral hearing the Government requested the Court to decide and declare that the facts disclose no breach of the applicant ’ s rights under Articles 2, 3, 8 or 13 of the Convention (art. 2, art. 3, art. 8, art. 13).", "The applicant requested the Court in his memorial and at the oral hearing to find that his proposed removal from the United Kingdom would, if implemented, constitute a breach of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had no effective remedy in respect of those complaints in breach of Article 13 (art. 13).", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)", "39. The applicant maintained that his removal to St Kitts would expose him to inhuman and degrading treatment in breach of Article 3 of the Convention (art. 3), which provides:", "\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"", "A. Arguments of those appearing before the Court", "1. The applicant", "40. The applicant maintained that his removal to St Kitts would condemn him to spend his remaining days in pain and suffering in conditions of isolation, squalor and destitution. He had no close relatives or friends in St Kitts to attend to him as he approached death. He had no accommodation, no financial resources and no access to any means of social support. It was an established fact that the withdrawal of his current medical treatment would hasten his death on account of the unavailability of similar treatment in St Kitts. His already weakened immune system would not be able to resist the many opportunistic infections to which he would be exposed on account of his homelessness, lack of proper diet and the poor sanitation on the island. The hospital facilities were extremely limited and certainly not capable of arresting the development of infections provoked by the harsh physical environment in which he would be obliged to fend for himself. His death would thus not only be further accelerated, it would also come about in conditions which would be inhuman and degrading.", "41. In June 1996, his life expectancy was stated to be in the region of eight to twelve months even if he continued to receive treatment in the United Kingdom. His health had declined since then. As he was now clearly weak and close to death, his removal by the respondent State at this late stage would certainly exacerbate his fate.", "2. The Government", "42. The Government requested the Court to find that the applicant had no valid claim under Article 3 (art. 3) in the circumstances of the case since he would not be exposed in the receiving country to any form of treatment which breached the standards of Article 3 (art. 3). His hardship and reduced life expectancy would stem from his terminal and incurable illness coupled with the deficiencies in the health and social-welfare system of a poor, developing country. He would find himself in the same situation as other AIDS victims in St Kitts. In fact he would have been returned in January 1993 to St Kitts, where he had spent most of his life, had it not been for his prosecution and conviction.", "43. The Government also disputed the applicant ’ s claim that he would be left alone and without access to treatment for his condition. They maintained that he had at least one cousin living in St Kitts and that there were hospitals caring for AIDS patients, including those suffering from opportunistic infections (see paragraph 17 above). Even if the treatment and medication fell short of that currently administered to the applicant in the United Kingdom, this in itself did not amount to a breach of Article 3 standards (art. 3).", "44. Before the Court the Government observed that it was their policy not to remove a person who was unfit to travel. They gave an undertaking to the Court not to remove the applicant unless, in the light of an assessment of his medical condition after the Court gives judgment, he is fit to travel.", "3. The Commission", "45. The Commission concluded that the removal of the applicant to St Kitts would engage the responsibility of the respondent State under Article 3 (art. 3) even though the risk of being subjected to inhuman and degrading treatment stemmed from factors for which the authorities in that country could not be held responsible. The risk was substantiated and real. If returned, he would be deprived of his current medical treatment and his already weakened immune system would be exposed to untreatable opportunistic infections which would reduce further his limited life expectancy and cause him severe pain and mental suffering. He would be homeless and without any form of moral, social or family support in the final stages of his deadly illness.", "B. The Court ’ s assessment", "46. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge.", "47. However, in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention (art. 3), which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 (art. 3) prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, most recently, the Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, para. 38; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1853, paras. 73-74).", "48. The Court observes that the above principle is applicable to the applicant ’ s removal under the Immigration Act 1971. Regardless of whether or not he ever entered the United Kingdom in the technical sense (see paragraph 25 above) it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention (art. 1) since 21 January 1993. It is for the respondent State therefore to secure to the applicant the rights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offence which he committed.", "49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection (see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44).", "Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinising an applicant ’ s claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant ’ s personal situation in the expelling State.", "50. Against this background the Court will determine whether there is a real risk that the applicant ’ s removal would be contrary to the standards of Article 3 (art. 3) in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health (see the Ahmed judgment, loc. cit., p. 2207, para. 43).", "51. The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern (see paragraph 21 above). The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers (see paragraph 19 above).", "52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts (see paragraph 32 above). While he may have a cousin in St Kitts (see paragraph 18 above), no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients (see paragraph 17 above).", "53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant ’ s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (art. 3).", "The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant ’ s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. Without calling into question the good faith of the undertaking given to the Court by the Government (see paragraph 44 above), it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.", "54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3 (art. 3).", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION (art. 2)", "55. The applicant further maintained that the implementation by the United Kingdom authorities of the decision to remove him to St Kitts would be in breach of Article 2 of the Convention (art. 2), which provides:", "\"1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.\"", "56. The applicant contended that his removal to St Kitts would engage the responsibility of the respondent State under Article 2 (art. 2). He is terminally ill, and the medical evidence submitted to the Court (see paragraphs 14-15 and 20-21 above) confirmed that his already reduced life expectancy would be further shortened if he were to be suddenly deprived of his current medical treatment and sent back to St Kitts. There would, he argued, be a direct causal link between his expulsion and his accelerated death such as to give rise to a violation of the right to life. He submitted that Article 2 (art. 2) denoted a positive obligation to safeguard life which in the circumstances in issue required the Government not to take a measure which would further reduce his limited life expectancy.", "57. The Government did not dispute the fact that the removal of the applicant to St Kitts and the consequential loss of the current medical treatment would hasten his death. However, the threat to his life expectancy stemmed not from factors for which the Government could be held responsible but from his own fatal illness in conjunction with the lack of adequate medical treatment in the receiving country. Article 2 (art. 2) was therefore not applicable to the circumstances in issue. In any event the substance of the applicant ’ s complaints could not be separated from the arguments he advanced in furtherance of his allegation under Article 3 (art. 3) and for that reason were best dealt with under the latter provision (art. 3).", "58. The Commission did not find it necessary to decide whether the risk to the applicant ’ s life expectancy created by his removal disclosed a breach of Article 2 (art. 2). It considered that it would be more appropriate to deal globally with this allegation when examining his related complaints under Article 3 (art. 3).", "59. The Court for its part shares the views of the Government and the Commission that the complaints raised by the applicant under Article 2 (art. 2) are indissociable from the substance of his complaint under Article 3 (art. 3) in respect of the consequences of the impugned decision for his life, health and welfare. It notes in this respect that the applicant stated before the Court that he was content to base his case under Article 3 (art. 3). Having regard to its finding that the removal of the applicant to St Kitts would give rise to a violation of Article 3 (art. 3) (see paragraph 54 above), the Court considers that it is not necessary to examine his complaint under Article 2 (art. 2).", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)", "60. The applicant also alleged that his proposed removal to St Kitts would violate his right to respect for his private life, as guaranteed by Article 8 of the Convention (art. 8). Article 8 (art. 8) provides:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "61. In support of this argument the applicant maintained that his removal would amount to a disproportionate interference with his right to respect for his private life, and in particular his right to respect for his physical integrity. While readily accepting that the offence he had committed was a very serious one, he requested the Court to consider the impact which his removal to St Kitts would entail for him, a terminally ill person with no family or close relatives in the receiving country, no moral or social support and no adequate medical treatment to stave off infection to his already weakened immune system. His continued presence in the United Kingdom could not be considered a burden on the domestic health resources and, furthermore, there were no indications that he would reoffend.", "62. The Government maintained that the applicant could not rely on Article 8 (art. 8) to challenge the impact of the impugned decision on his right to private life since his private life was constituted in the receiving country where he had lived most of his life. Any links which the applicant had with the United Kingdom were the direct result of the offence for which he had been sentenced. Even if Article 8 (art. 8) were to be regarded as applicable, the interference with his medical interests by removing him to St Kitts was justified, given the seriousness of the offence he had committed, for reasons of the prevention of crime and in the interests of the economic well-being of the United Kingdom.", "63. Although the Commission found that no separate issue arose under Article 8 (art. 8) in view of its findings under Article 3 (art. 3), the Delegate invited the Court to find a violation of Article 8 (art. 8) in the event of a conclusion that the applicant ’ s removal to St Kitts would not violate Article 3 (art. 3).", "64. Having regard to its finding under Article 3 (art. 3) (see paragraph 54 above), the Court concludes that the applicant ’ s complaints under Article 8 (art. 8) raise no separate issue.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)", "65. The applicant complained that he had no effective remedy in English law in respect of his complaints under Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8). He contended that this gave rise to a breach of Article 13 of the Convention (art. 13), which provides:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "66. The applicant pointed to the limitations which circumscribed an effective review by courts in the United Kingdom of the decisions reached by the authorities in expulsion cases. When reviewing the legality of administrative decisions the courts did not treat the Convention and the principles developed by the Court as a relevant consideration; nor was the decision-maker obliged to take account of the Convention and the case-law of the Convention institutions when exercising the powers conferred by legislation such as the Immigration Act 1971. Admittedly, the domestic courts will review decisions with a greater rigour when they have an impact on human rights, but even in such cases they do not take a Convention ‑ based approach. Thus, in the case in issue, the Court of Appeal did not seek to satisfy itself whether the removal of the applicant would expose him to inhuman and degrading treatment but merely examined whether the decision-maker had taken this factor into account. This, he maintained, fell short of the test of \"independent scrutiny\" of a claim that there exist substantial grounds for fearing a real risk of treatment proscribed by Article 3 (art. 3) which the Court in its Chahal judgment (loc. cit., p. 1871, para. 151) had considered to be a crucial aspect of an effective remedy. Furthermore, the Court of Appeal had regarded the seriousness of the applicant ’ s offence as a paramount consideration in deciding that the impugned decision was not an irrational one and had failed also to take adequate account of the Convention ’ s requirements when dealing with his complaints under Articles 2 and 8 (art. 2, art. 8). For these reasons it could not be said that the judicial review proceedings afforded him an effective remedy within the meaning of Article 13 (art. 13).", "67. The Government disputed this argument and invited the Court to confirm the conclusion which it had reached in certain earlier judgments that judicial review proceedings afforded an effective remedy to challenge the legality of a decision to expel or deport an individual. The courts in the United Kingdom applied a \"most anxious scrutiny\" test when reviewing administrative decisions which affect the fundamental rights of individuals. The Court of Appeal applied such a test in this case when assessing the merits of the decision to remove the applicant and took due account of the hardship which the implementation of the decision would cause the applicant. The applicant cannot therefore argue that he was denied an effective remedy.", "68. The Commission agreed with the Government. The Court of Appeal examined the substance of the applicant ’ s complaint, including the hardship which would result from his removal. Although the Court of Appeal did not quash the decision to remove him, it had the power to do so. The remedy afforded by judicial review was therefore an effective one.", "69. The Court observes that Article 13 of the Convention (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see, among other authorities, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 47, para. 120; and the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 39, para. 122).", "70. In its Vilvarajah and Others judgment (loc. cit., p. 39, para. 123) and its Soering judgment (loc. cit., pp. 47-48, paras. 121-24) the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 (art. 3) in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.", "71. While it is true that the source of the risk of the prohibited treatment to which the applicant will be exposed and the impugned measure are different from those in the above cases there is no reason to depart from the conclusion reached in those cases in respect of the effectiveness of judicial review proceedings for the purposes of Article 13 (art. 13). Indeed the Court of Appeal had regard to domestic case-law which required it to submit the applicant ’ s plight to the most anxious scrutiny on account of the established risk to his life expectancy. It did so against the background of the criteria which need to be satisfied before an administrative decision can be challenged on the grounds of its irrationality. The substance of the applicant ’ s complaint was therefore examined by the Court of Appeal. That court had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 (art. 13) does not depend on the certainty of a favourable outcome for an applicant (see the Vilvarajah and Others judgment, loc. cit., p. 39, para. 122).", "72. The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the Chahal judgment (loc. cit., p. 1871, para. 151). However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national-security considerations invoked by the Home Secretary to justify the expulsion of Mr Chahal. No such considerations arise in the case in issue.", "73. The applicant thus had available to him an effective remedy in relation to his complaints under Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8). Accordingly there has been no breach of Article 13 (art. 13).", "V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)", "74. Article 50 of the Convention (art. 50) provides: \"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\" A. Costs and expenses", "75. The applicant did not seek damages. He claimed reimbursement of GBP 49,443 and 13,811 French francs (FRF) incurred by way of costs and expenses in respect of the proceedings brought before the Convention institutions.", "76. The Government requested the Court to reduce the amount, mainly because the time billed in respect of the preparation of certain parts of the case was excessive and the number of lawyers engaged to work on the case unreasonable. They proposed the sum of GBP 29,313.16 and FRF 9,194.", "77. The applicant defended the amount claimed on account of, inter alia, the complexity of the issues involved and the speed with which the case had been treated by both the Commission and the Court.", "78. Making an assessment on an equitable basis, the Court awards the applicant GBP 35,000 plus any value-added tax that may be chargeable under this head, less the FRF 33,216 already paid in legal aid by the Council of Europe. B. Default interest 79. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum." ]

[ "I. Particular circumstances of the case", "A. The applicant", "6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a three-year term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts.", "B. The applicant ’ s arrival in the United Kingdom and subsequent imprisonment", "7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days.", "However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years ’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission ’ s report had been made public.", "C. Diagnosis of AIDS", "8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia (\"PCP\") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom.", "9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations.", "10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant ’ s removal to St Kitts.", "D. The applicant ’ s request to remain in the United Kingdom", "11. By letter dated 23 January 1996, the applicant ’ s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicant ’ s solicitors the Chief Immigration Officer stated:", "\"In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...] ’ s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ...\"", "E. Judicial review proceedings", "12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D. ’ s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicant ’ s argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment:", "\"Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere.\"", "F. Reports on the applicant ’ s medical condition, treatment and prognosis", "13. Since August 1995, the applicant ’ s \"CD4\" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue.", "14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated:", "\"His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant ’ s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ...\"", "15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant ’ s prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected.", "G. Medical facilities in St Kitts", "16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed.", "17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicant ’ s representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS.", "Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives.", "H. The applicant ’ s family situation in St Kitts", "18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts.", "I. The applicant ’ s situation since the adoption of the Commission ’ s report", "19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection.", "20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with \"D4T\" and \"3TC\" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts.", "21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicant ’ s condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicant ’ s life was drawing to a close much as the experts had predicted (see paragraph 15 above)." ]

[ "II. Relevant domestic law and practice", "22. The regulation of entry into and stay in the United Kingdom is governed by Part 1 of the Immigration Act 1971. The practice to be followed in the administration of the Act for regulating entry and stay is contained in statements of the rules laid by the Secretary of State before Parliament (\"the Immigration Rules\").", "23. Section 3 (1) provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of the Act. Leave to enter may be granted for a limited or for an indefinite period.", "24. Under section 4 (1) of the Act the power to grant or refuse leave to enter is exercised by immigration officers whereas the power to grant leave to remain in the United Kingdom is exercised by the Secretary of State. These powers are exercisable by notice in writing given to the person affected.", "25. A person, such as the applicant, who has been refused leave to enter but is physically in the United Kingdom pending his removal and seeks to be allowed to stay there does not fall to be treated as applying for leave to remain. Since no leave to enter had been granted to the applicant, it was right according to the judgment of Sir Iain Glidewell in R. v. Secretary of State for the Home Department, ex parte D. (Court of Appeal, 15 February 1996) for the immigration officer to treat his application as an application for leave to enter rather than for leave to remain.", "A. Policy guidelines on how to proceed in cases in which persons seeking to enter or remain in the United Kingdom are suffering from AIDS or are HIV-positive", "26. The Immigration and Nationality Department of the Home Office issued a policy document (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelines specifies that the fact that a person is suffering from AIDS or is HIV-positive is not a ground for refusing leave to enter or leave to remain if the person concerned otherwise qualifies under the Immigration Rules. Equally, this fact is not in itself a sufficient ground to justify the exercise of discretion where the person concerned has not met the requirements of the Rules.", "The policy guidelines distinguish between applications for leave to enter and applications for leave to remain.", "27. On applications for leave to enter (paragraph 4 of the guidelines), where the person is suffering from AIDS, the policy and practice is to adhere to the provisions of the Immigration Rules in the normal way. Where such a person does not qualify under the Rules, entry is refused.", "28. On applications for leave to remain (paragraph 5 of the guidelines), the application should be dealt with normally on its merits under the applicable Rules. However, there is a discretion outside the Rules which can be exercised in strong compassionate circumstances. Paragraph 5.4 states that:", "\"... there may be cases where it is apparent that there are no facilities for treatment available in the applicant ’ s own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain.\"", "B. Other relevant materials", "29. Among the documentary materials submitted by the applicant, are the following.", "1. International policy statements on human rights and AIDS", "30. International concern about AIDS has resulted in the adoption of several international texts which have addressed, inter alia, the protection of the human rights of the victims of the disease. Thus, the United Nations Commission on Human Rights adopted a resolution on 9 March 1993 on the protection of human rights in the context of human immunodeficiency virus or acquired immunodeficiency syndrome in which it called upon \"all States to ensure that their laws, policies and practices introduced in the context of AIDS respect human rights standards\".", "31. At a Summit of Heads of Government or Representatives of forty-two States meeting in Paris on 1 December 1994, a declaration was adopted in which the participating States solemnly declared their obligation \"to act with compassion for and in solidarity with those with HIV or at risk of becoming infected, both within [their] societies and internationally\".", "2. Extract of the WHO report on \"Health conditions in the Americas \", 1994, Volume II, concerning St Kitts and Nevis", "32. \"Health and living conditions ... there are a number of serious environmental problems, such as inadequate disposal of solid and liquid waste - especially untreated sewage - into coastal lands and waters, resulting in coastal zone degradation, fish depletion and health problems (gastro ‑ enteritis) ...\"", "33. According to this publication, there are two general hospitals in St Kitts, one with 174 beds and the other with 38. There is also a \"cottage\" hospital with 10 beds. There are two homes providing geriatric care.", "3. \"Treatment issues - a basic guide to medical treatment options for people with HIV and AIDS\" produced in April 1996 by the Terrence Higgins Trust", "34. This guide describes the three medical strategies available for treating HIV infection and AIDS: using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune system, treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the immune system. Amongst the first category, several drugs can be used, including AZT (also known as Zidovudine or its tradename Retrovir ). This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells and the build-up of virus in the body is slowed down. However, the existing drugs are only partially effective and at best can only delay the worsening of HIV-related disease rather than prevent it.", "35. As regards the second category, persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections. These commonly include cytomegalovirus (herpes virus), Kaposi ’ s sarcoma, anaemia, tuberculosis, toxoplasmosis and PCP. PCP is a form of pneumonia which in people infected with HIV may affect the lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs. In the case of PCP, which was a common cause of death during the first years of the epidemic and is still one of the commonest AIDS illnesses, options include the long-term taking of antibiotics such as cotrimoxazole and the use of nebulised pentamidine which is intended to protect the lungs.", "36. In relation to the third category, treatment which strengthens or restores the immune system, research has yet to produce any clear results.", "PROCEEDINGS BEFORE THE COMMISSION", "37. The applicant lodged his application (no. 30240/96) with the Commission on 15 February 1996. He alleged that his proposed removal to St Kitts would be in violation of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had been denied an effective remedy to challenge the removal order in breach of Article 13 (art. 13).", "The Commission declared the application admissible on 26 June 1996. In its report of 15 October 1996 (Article 31) (art. 31), it expressed the opinion that Article 3 (art. 3) would be violated if the applicant were to be removed to St Kitts (eleven votes to seven); that it was unnecessary to examine the complaint under Article 2 (art. 2) (unanimously); that no separate issue arose under Article 8 (art. 8) (unanimously); and that there had been no violation of Article 13 (art. 13) (thirteen votes to five). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3]", "FINAL SUBMISSIONS TO THE COURT", "38. In their memorial and at the oral hearing the Government requested the Court to decide and declare that the facts disclose no breach of the applicant ’ s rights under Articles 2, 3, 8 or 13 of the Convention (art. 2, art. 3, art. 8, art. 13).", "The applicant requested the Court in his memorial and at the oral hearing to find that his proposed removal from the United Kingdom would, if implemented, constitute a breach of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had no effective remedy in respect of those complaints in breach of Article 13 (art. 13).", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)", "39. The applicant maintained that his removal to St Kitts would expose him to inhuman and degrading treatment in breach of Article 3 of the Convention (art. 3), which provides:", "\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"", "A. Arguments of those appearing before the Court", "1. The applicant", "40. The applicant maintained that his removal to St Kitts would condemn him to spend his remaining days in pain and suffering in conditions of isolation, squalor and destitution. He had no close relatives or friends in St Kitts to attend to him as he approached death. He had no accommodation, no financial resources and no access to any means of social support. It was an established fact that the withdrawal of his current medical treatment would hasten his death on account of the unavailability of similar treatment in St Kitts. His already weakened immune system would not be able to resist the many opportunistic infections to which he would be exposed on account of his homelessness, lack of proper diet and the poor sanitation on the island. The hospital facilities were extremely limited and certainly not capable of arresting the development of infections provoked by the harsh physical environment in which he would be obliged to fend for himself. His death would thus not only be further accelerated, it would also come about in conditions which would be inhuman and degrading.", "41. In June 1996, his life expectancy was stated to be in the region of eight to twelve months even if he continued to receive treatment in the United Kingdom. His health had declined since then. As he was now clearly weak and close to death, his removal by the respondent State at this late stage would certainly exacerbate his fate.", "2. The Government", "42. The Government requested the Court to find that the applicant had no valid claim under Article 3 (art. 3) in the circumstances of the case since he would not be exposed in the receiving country to any form of treatment which breached the standards of Article 3 (art. 3). His hardship and reduced life expectancy would stem from his terminal and incurable illness coupled with the deficiencies in the health and social-welfare system of a poor, developing country. He would find himself in the same situation as other AIDS victims in St Kitts. In fact he would have been returned in January 1993 to St Kitts, where he had spent most of his life, had it not been for his prosecution and conviction.", "43. The Government also disputed the applicant ’ s claim that he would be left alone and without access to treatment for his condition. They maintained that he had at least one cousin living in St Kitts and that there were hospitals caring for AIDS patients, including those suffering from opportunistic infections (see paragraph 17 above). Even if the treatment and medication fell short of that currently administered to the applicant in the United Kingdom, this in itself did not amount to a breach of Article 3 standards (art. 3).", "44. Before the Court the Government observed that it was their policy not to remove a person who was unfit to travel. They gave an undertaking to the Court not to remove the applicant unless, in the light of an assessment of his medical condition after the Court gives judgment, he is fit to travel.", "3. The Commission", "45. The Commission concluded that the removal of the applicant to St Kitts would engage the responsibility of the respondent State under Article 3 (art. 3) even though the risk of being subjected to inhuman and degrading treatment stemmed from factors for which the authorities in that country could not be held responsible. The risk was substantiated and real. If returned, he would be deprived of his current medical treatment and his already weakened immune system would be exposed to untreatable opportunistic infections which would reduce further his limited life expectancy and cause him severe pain and mental suffering. He would be homeless and without any form of moral, social or family support in the final stages of his deadly illness.", "B. The Court ’ s assessment", "46. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge.", "47. However, in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention (art. 3), which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 (art. 3) prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, most recently, the Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, para. 38; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1853, paras. 73-74).", "48. The Court observes that the above principle is applicable to the applicant ’ s removal under the Immigration Act 1971. Regardless of whether or not he ever entered the United Kingdom in the technical sense (see paragraph 25 above) it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention (art. 1) since 21 January 1993. It is for the respondent State therefore to secure to the applicant the rights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offence which he committed.", "49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection (see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44).", "Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinising an applicant ’ s claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant ’ s personal situation in the expelling State.", "50. Against this background the Court will determine whether there is a real risk that the applicant ’ s removal would be contrary to the standards of Article 3 (art. 3) in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health (see the Ahmed judgment, loc. cit., p. 2207, para. 43).", "51. The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern (see paragraph 21 above). The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers (see paragraph 19 above).", "52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts (see paragraph 32 above). While he may have a cousin in St Kitts (see paragraph 18 above), no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients (see paragraph 17 above).", "53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant ’ s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (art. 3).", "The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant ’ s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. Without calling into question the good faith of the undertaking given to the Court by the Government (see paragraph 44 above), it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.", "54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3 (art. 3).", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION (art. 2)", "55. The applicant further maintained that the implementation by the United Kingdom authorities of the decision to remove him to St Kitts would be in breach of Article 2 of the Convention (art. 2), which provides:", "\"1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.\"", "56. The applicant contended that his removal to St Kitts would engage the responsibility of the respondent State under Article 2 (art. 2). He is terminally ill, and the medical evidence submitted to the Court (see paragraphs 14-15 and 20-21 above) confirmed that his already reduced life expectancy would be further shortened if he were to be suddenly deprived of his current medical treatment and sent back to St Kitts. There would, he argued, be a direct causal link between his expulsion and his accelerated death such as to give rise to a violation of the right to life. He submitted that Article 2 (art. 2) denoted a positive obligation to safeguard life which in the circumstances in issue required the Government not to take a measure which would further reduce his limited life expectancy.", "57. The Government did not dispute the fact that the removal of the applicant to St Kitts and the consequential loss of the current medical treatment would hasten his death. However, the threat to his life expectancy stemmed not from factors for which the Government could be held responsible but from his own fatal illness in conjunction with the lack of adequate medical treatment in the receiving country. Article 2 (art. 2) was therefore not applicable to the circumstances in issue. In any event the substance of the applicant ’ s complaints could not be separated from the arguments he advanced in furtherance of his allegation under Article 3 (art. 3) and for that reason were best dealt with under the latter provision (art. 3).", "58. The Commission did not find it necessary to decide whether the risk to the applicant ’ s life expectancy created by his removal disclosed a breach of Article 2 (art. 2). It considered that it would be more appropriate to deal globally with this allegation when examining his related complaints under Article 3 (art. 3).", "59. The Court for its part shares the views of the Government and the Commission that the complaints raised by the applicant under Article 2 (art. 2) are indissociable from the substance of his complaint under Article 3 (art. 3) in respect of the consequences of the impugned decision for his life, health and welfare. It notes in this respect that the applicant stated before the Court that he was content to base his case under Article 3 (art. 3). Having regard to its finding that the removal of the applicant to St Kitts would give rise to a violation of Article 3 (art. 3) (see paragraph 54 above), the Court considers that it is not necessary to examine his complaint under Article 2 (art. 2).", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)", "60. The applicant also alleged that his proposed removal to St Kitts would violate his right to respect for his private life, as guaranteed by Article 8 of the Convention (art. 8). Article 8 (art. 8) provides:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "61. In support of this argument the applicant maintained that his removal would amount to a disproportionate interference with his right to respect for his private life, and in particular his right to respect for his physical integrity. While readily accepting that the offence he had committed was a very serious one, he requested the Court to consider the impact which his removal to St Kitts would entail for him, a terminally ill person with no family or close relatives in the receiving country, no moral or social support and no adequate medical treatment to stave off infection to his already weakened immune system. His continued presence in the United Kingdom could not be considered a burden on the domestic health resources and, furthermore, there were no indications that he would reoffend.", "62. The Government maintained that the applicant could not rely on Article 8 (art. 8) to challenge the impact of the impugned decision on his right to private life since his private life was constituted in the receiving country where he had lived most of his life. Any links which the applicant had with the United Kingdom were the direct result of the offence for which he had been sentenced. Even if Article 8 (art. 8) were to be regarded as applicable, the interference with his medical interests by removing him to St Kitts was justified, given the seriousness of the offence he had committed, for reasons of the prevention of crime and in the interests of the economic well-being of the United Kingdom.", "63. Although the Commission found that no separate issue arose under Article 8 (art. 8) in view of its findings under Article 3 (art. 3), the Delegate invited the Court to find a violation of Article 8 (art. 8) in the event of a conclusion that the applicant ’ s removal to St Kitts would not violate Article 3 (art. 3).", "64. Having regard to its finding under Article 3 (art. 3) (see paragraph 54 above), the Court concludes that the applicant ’ s complaints under Article 8 (art. 8) raise no separate issue.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)", "65. The applicant complained that he had no effective remedy in English law in respect of his complaints under Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8). He contended that this gave rise to a breach of Article 13 of the Convention (art. 13), which provides:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "66. The applicant pointed to the limitations which circumscribed an effective review by courts in the United Kingdom of the decisions reached by the authorities in expulsion cases. When reviewing the legality of administrative decisions the courts did not treat the Convention and the principles developed by the Court as a relevant consideration; nor was the decision-maker obliged to take account of the Convention and the case-law of the Convention institutions when exercising the powers conferred by legislation such as the Immigration Act 1971. Admittedly, the domestic courts will review decisions with a greater rigour when they have an impact on human rights, but even in such cases they do not take a Convention ‑ based approach. Thus, in the case in issue, the Court of Appeal did not seek to satisfy itself whether the removal of the applicant would expose him to inhuman and degrading treatment but merely examined whether the decision-maker had taken this factor into account. This, he maintained, fell short of the test of \"independent scrutiny\" of a claim that there exist substantial grounds for fearing a real risk of treatment proscribed by Article 3 (art. 3) which the Court in its Chahal judgment (loc. cit., p. 1871, para. 151) had considered to be a crucial aspect of an effective remedy. Furthermore, the Court of Appeal had regarded the seriousness of the applicant ’ s offence as a paramount consideration in deciding that the impugned decision was not an irrational one and had failed also to take adequate account of the Convention ’ s requirements when dealing with his complaints under Articles 2 and 8 (art. 2, art. 8). For these reasons it could not be said that the judicial review proceedings afforded him an effective remedy within the meaning of Article 13 (art. 13).", "67. The Government disputed this argument and invited the Court to confirm the conclusion which it had reached in certain earlier judgments that judicial review proceedings afforded an effective remedy to challenge the legality of a decision to expel or deport an individual. The courts in the United Kingdom applied a \"most anxious scrutiny\" test when reviewing administrative decisions which affect the fundamental rights of individuals. The Court of Appeal applied such a test in this case when assessing the merits of the decision to remove the applicant and took due account of the hardship which the implementation of the decision would cause the applicant. The applicant cannot therefore argue that he was denied an effective remedy.", "68. The Commission agreed with the Government. The Court of Appeal examined the substance of the applicant ’ s complaint, including the hardship which would result from his removal. Although the Court of Appeal did not quash the decision to remove him, it had the power to do so. The remedy afforded by judicial review was therefore an effective one.", "69. The Court observes that Article 13 of the Convention (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see, among other authorities, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 47, para. 120; and the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 39, para. 122).", "70. In its Vilvarajah and Others judgment (loc. cit., p. 39, para. 123) and its Soering judgment (loc. cit., pp. 47-48, paras. 121-24) the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 (art. 3) in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.", "71. While it is true that the source of the risk of the prohibited treatment to which the applicant will be exposed and the impugned measure are different from those in the above cases there is no reason to depart from the conclusion reached in those cases in respect of the effectiveness of judicial review proceedings for the purposes of Article 13 (art. 13). Indeed the Court of Appeal had regard to domestic case-law which required it to submit the applicant ’ s plight to the most anxious scrutiny on account of the established risk to his life expectancy. It did so against the background of the criteria which need to be satisfied before an administrative decision can be challenged on the grounds of its irrationality. The substance of the applicant ’ s complaint was therefore examined by the Court of Appeal. That court had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 (art. 13) does not depend on the certainty of a favourable outcome for an applicant (see the Vilvarajah and Others judgment, loc. cit., p. 39, para. 122).", "72. The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the Chahal judgment (loc. cit., p. 1871, para. 151). However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national-security considerations invoked by the Home Secretary to justify the expulsion of Mr Chahal. No such considerations arise in the case in issue.", "73. The applicant thus had available to him an effective remedy in relation to his complaints under Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8). Accordingly there has been no breach of Article 13 (art. 13).", "V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)", "74. Article 50 of the Convention (art. 50) provides: \"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\" A. Costs and expenses", "75. The applicant did not seek damages. He claimed reimbursement of GBP 49,443 and 13,811 French francs (FRF) incurred by way of costs and expenses in respect of the proceedings brought before the Convention institutions.", "76. The Government requested the Court to reduce the amount, mainly because the time billed in respect of the preparation of certain parts of the case was excessive and the number of lawyers engaged to work on the case unreasonable. They proposed the sum of GBP 29,313.16 and FRF 9,194.", "77. The applicant defended the amount claimed on account of, inter alia, the complexity of the issues involved and the speed with which the case had been treated by both the Commission and the Court.", "78. Making an assessment on an equitable basis, the Court awards the applicant GBP 35,000 plus any value-added tax that may be chargeable under this head, less the FRF 33,216 already paid in legal aid by the Council of Europe. B. Default interest 79. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in Uganda in 1974. She currently lives in London.", "9. The applicant entered the United Kingdom on 28 March 1998 under an assumed name. She was seriously ill and was admitted to hospital, where she was diagnosed as HIV-positive with “considerable immunosuppression and ... disseminated mycobacterium TB”.", "10. On 31 March 1998 solicitors lodged an asylum application on her behalf, claiming that she had been ill-treated and raped by the National Resistance Movement in Uganda because of her association with the Lord’s Resistance Army, and asserting that she was in fear of her life and safety if she were returned.", "11. In August 1998 the applicant developed a second Aids-defining illness, Kaposi’s sarcoma. Her CD4 count was down to 10 (that of a healthy person is over 500). After treatment with antiretroviral drugs and frequent monitoring, her condition began to stabilise so that by 2005, when the House of Lords examined the case, her CD4 count had risen to 414.", "12. In March 2001 a consultant physician prepared an expert report, at the request of the applicant’s solicitor, which expressed the view that without continuing regular antiretroviral treatment to improve and maintain her CD4 count, and monitoring to ensure that the correct combination of drugs was used, the applicant’s life expectancy would be less than one year, due to the disseminated Kaposi’s sarcoma and the risk of infections. The medication she needed would be available in Uganda, but only at considerable expense and in limited supply in the applicant’s home town of Masaka. Moreover, the author of the report pointed out that in Uganda there was no provision for publicly funded blood monitoring, basic nursing care, social security, food or housing.", "13. The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Article 3 claim was also rejected, the Secretary of State noting that treatment of Aids in Uganda was comparable to that in any other African country, and that all the major antiretroviral drugs were available in Uganda at highly subsidised prices.", "14. An adjudicator determined the applicant’s appeal on 10 July 2002. He dismissed the appeal against the asylum refusal, but allowed the appeal on Article 3 grounds by reference to the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997-III). He found that the applicant’s case fell within the scope of the Asylum Directorate Instructions which provide that exceptional leave to remain in or enter the United Kingdom must be given:", "“... where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant’s life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK [United Kingdom] can be regarded as having assumed responsibility for his care. ...”", "15. The Secretary of State appealed against the Article 3 finding, contending that all the Aids drugs available under the National Health Service in the United Kingdom could also be obtained locally, and most were also available at a reduced price through the United Nations’ funded projects and from bilateral Aids donor-funded programmes. The applicant’s return would not, therefore, be to a “complete absence of medical treatment”, and so would not subject her to “acute physical and mental suffering”. The Immigration Appeal Tribunal allowed the appeal on 29 November 2002. It found as follows:", "“Medical treatment is available in Uganda for the [applicant’s] condition even though the Tribunal accept that the level of medical provision in Uganda falls below that in the United Kingdom and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries. Nonetheless, extensive efforts are being made in Uganda to tackle the Aids situation – Aids-treating drugs are available, refined forms of drug are being supplied (albeit with time lags) and it would not be until the [applicant’s] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided.”", "16. Leave to appeal to the Court of Appeal was granted on 26 June 2003, and on 16 October 2003 the applicant’s appeal to the Court of Appeal was dismissed by a majority of two to one ([2003] EWCA Civ 1369). With reference to the case of D. v. the United Kingdom (cited above), Lord Justice Laws (with whom Lord Justice Dyson concurred) stated:", "“The contrast between the relative well-being accorded in a signatory State to a very sick person who, for a while, even a long while, is accommodated there, and the scarcities and hardships which (without any violation of international law) he would face if he were returned home, is to my mind – even if the contrast is very great – an extremely fragile basis upon which to erect a legal duty upon the State to confer or extend a right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature, of the State’s government. The elaboration of immigration policy ... is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ECHR [the Convention] where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the State. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with the facilities available in the host country, is to my mind something else altogether.", "... I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. That does not, I acknowledge, amount to a sharp legal test ... an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one’s sympathy on pressing grounds ...”", "Lord Justice Carnwath, dissenting, was unable to say that the facts of the case were so clear that the only reasonable conclusion was that Article 3 did not apply. Given the stark contrast between the applicant’s position in the United Kingdom and the practical certainty of a dramatically reduced life expectancy if returned to Uganda with no effective family support, he would have remitted the case to the fact-finding body in the case, the Immigration Appeal Tribunal.", "17. Leave to appeal to the House of Lords was granted, and on 5 May 2005 the House of Lords unanimously dismissed the applicant’s appeal ([2005] UKHL 31).", "Lord Nicholls of Birkenhead summarised the applicant’s prognosis as follows:", "“... In August 1998 [the applicant] developed a second Aids-defining illness, Kaposi’s sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10.", "As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the [applicant] is now much better. Her CD4 count has risen [from 10] to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for ‘decades’. But without these drugs and facilities the prognosis is ‘appalling’: she will suffer ill health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it.", "The cruel reality is that if the [applicant] returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine turned off.”", "Lord Hope of Craighead, with whom Lord Nicholls, Lord Brown of Eaton-under-Heywood and Lord Walker of Gestingthorpe agreed, referred in detail to the Court’s case-law (see paragraphs 32-41 below), and held as follows:", "“... that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the Article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. ... On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional ... The question on which the Court has to concentrate is whether the present state of the applicant’s health is such that, on humanitarian grounds, he ought not to be expelled unless it can [be] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving State. The only cases where this test has been found to be satisfied are D. v. the United Kingdom ... and B.B. v. France ... [T]he Strasbourg Court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D. v. the United Kingdom represents.", "It may be that the Court has not really faced up to the consequences of developments in medical techniques since the cases of D. v. the United Kingdom and B.B. v. France were decided. The position today is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs. In almost all cases where this treatment is being delivered successfully it will be found that at present the patient is in good health. But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death. The antiretroviral treatment can be likened to a life ‑ support machine. Although the effects of terminating the treatment are not so immediate, in the longer term they are just as fatal. It appears to be somewhat disingenuous for the Court to concentrate on the applicant’s state of health which, on a true analysis, is due entirely to the treatment whose continuation is so much at risk.", "But it cannot be said that the Court is unaware of the advances of medical science in this field. All the recent cases since S.C.C. v. Sweden have demonstrated this feature. The fact that the Court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. The way this principle was referred to and then applied in Amegnigan v. the Netherlands ... is, in my opinion, highly significant. What the Court is in effect saying it that the fact that the treatment may be beyond the reach of the applicant in the receiving State is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the Third World, especially those in sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v. the Netherlands, ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying.", "... So long as [the applicant] continues to take the treatment she will remain healthy and she will have several decades of good health to look forward to. Her present condition cannot be said to be critical. She is fit to travel, and will remain fit if and so long as she can obtain the treatment that she needs when she returns to Uganda. The evidence is that the treatment that she needs is available there, albeit at considerable cost. She also still has relatives there, although her position is that none of them would be willing and able to accommodate and take care of her. In my opinion her case falls into the same category as S.C.C. v. Sweden, Arcila Henao v. the Netherlands, Ndangoya v. Sweden and Amegnigan v. the Netherlands, where the Court has consistently held that the test of exceptional circumstances has not been satisfied. In my opinion the Court’s jurisprudence leads inevitably to the conclusion that her removal to Uganda would not violate the guarantees of Article 3 of the Convention. ...”", "Lord Hope concluded by observing:", "“[Any extension of the principles in D. v. the United Kingdom ] would have the effect of affording all those in the [applicant’s] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV/Aids had reached that which is available in Europe. It would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the States Parties to the Convention would ever have agreed to. The better course, one might have thought, would be for States to continue to concentrate their efforts on the steps which are currently being taken, with the assistance of the drugs companies, to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV/Aids.”", "Baroness Hale of Richmond, agreeing that the appeal should be dismissed, reviewed the domestic and Convention authorities and phrased the test to be applied as follows:", "“... whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. ... [The test] is not met on the facts of this case.”", "II. MEDICAL TREATMENT FOR HIV AND AIDS IN THE UNITED KINGDOM AND UGANDA", "18. According to information obtained by the Court of its own motion, HIV is normally treated by antiretroviral drugs. In the United Kingdom, in common with most developed countries, these drugs are provided in combination, a practice known as “highly active antiretroviral therapy” (HAART). The proper administration of antiretroviral drugs depends on regular monitoring of the patient, including blood tests, and the availability of medical personnel to adjust at frequent intervals the level and type of drugs taken. Such treatment is generally available free of charge on the National Health Service.", "19. In Uganda, attempts have been made to reduce the country’s dependency on imported medication, including producing generic drugs locally. However, in common with most sub-Saharan African countries, the availability of antiretroviral drugs is hampered by limited financial resources and by shortcomings in the health-care infrastructure required to administer them effectively. As a result, according to research carried out by the World Health Organisation (WHO), approximately only half of those needing antiretroviral therapy in Uganda receive it (WHO, “Progress on Global Access to HIV Antiretroviral Therapy”, March 2006, pp. 9, 11 and 72). The Joint United Nations Programme on HIV/Aids (UNAIDS) and WHO in their 2007 country situation analysis on Uganda also cited major barriers to HIV prevention, treatment, care and support as including limited public investment, limited service coverage and lack of a policy framework. There are also significant disparities in the provision of drugs between urban and rural areas (WHO, “Summary Country Profile for HIV/Aids Treatment Scale-Up: Uganda”, December 2005). In addition, progress in providing medical care has been offset by the ever-increasing number of people requiring treatment (UNAIDS/WHO, “Aids Epidemic Update”, 2006, p. 18) and given the rapid population growth in Uganda, its stable HIV incidence rate means that an increasing number of people acquire HIV each year (UNAIDS/WHO, “Aids Epidemic Update”, December 2007, p. 17)." ]

[ "THE LAW", "I. ADMISSIBILITY OF THE COMPLAINTS", "20. The applicant complained that, given her illness and the lack of freely available antiretroviral and other necessary medical treatment, social support or nursing care in Uganda, her removal there would cause acute physical and mental suffering, followed by an early death, in breach of Article 3 of the Convention. The Government disagreed.", "Article 3 provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "21. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant’s complaints.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "A. The parties’ submissions", "1. The Government", "22. The Government submitted that it was clear from the Court’s jurisprudence that, in medical cases such as the present, Article 3 applied only in “exceptional”, or “very exceptional”, circumstances. This restriction of the application of Article 3 was correct as a matter of principle, given that the source of the risk was not in the expelling State and that it stemmed from factors which were not such as to engage the responsibility of the public authorities of the receiving State. The case-law further demonstrated that “exceptional circumstances” would be found only where the applicant’s illness had reached a very advanced or terminal stage and where the probable lack of medical care and support, including support from family members, in the receiving State would be such as to deprive him or her of “the most basic human dignity as his illness runs its inevitably painful and fatal course” (see D. v. the United Kingdom, 2 May 1997, opinion of the Commission, § 60, Reports of Judgments and Decisions 1997-III). In considering whether there were exceptional circumstances, the Court in previous cases had focused primarily on the gravity of the applicant’s medical condition at the moment of the intended removal and had not, to date, carried out any detailed consideration of whether the required treatment and care would be available in practice to the applicant in the receiving country.", "23. The “exceptional circumstances” threshold was not satisfied in the instant case. While the Government accepted that without antiretroviral drugs the applicant’s condition would deteriorate rapidly and she would suffer illness, discomfort, pain and death within a year or two, they maintained that her illness was currently stable and that the treatment she needed was available in Uganda, albeit at considerable cost. She was fit to travel and would remain fit if, and so long as, she could obtain the treatment that she needed when she returned to Uganda. She had family members there, although she maintained that they would not be willing or able to care for her if she was seriously ill. For these reasons, the case was distinguishable from D. v. the United Kingdom and fell into the category of medical cases in which the Court had rejected the claim under Article 3 (see paragraphs 34-39 below).", "24. Advances in the treatment of HIV and Aids available in developed States did not affect the above general principle, as set out in the case-law from D. v. the United Kingdom onwards, since the focus in those cases was on ensuring a dignified death rather than prolonging life. The interpretation of the Convention, as with any international treaty, was confined by the consent of the Contracting States. The practical effect of extending Article 3 to cover the applicant’s case would be to grant her, and countless others afflicted by Aids and other fatal diseases, a right to remain and to continue to benefit from medical treatment within a Contracting State. It was inconceivable that the Contracting States would have agreed to such a provision. The Convention was intended primarily to protect civil and political, rather than economic and social, rights. The protection provided by Article 3 was absolute and fundamental, whereas provisions on health care contained in international instruments such as the European Social Charter and the International Covenant on Economic, Social and Cultural Rights were merely aspirational in character and did not provide the individual with a directly enforceable right. To enable an applicant to claim access to health care by the “back door” of Article 3 would leave the State with no margin of appreciation and would be entirely impractical and contrary to the intention behind the Convention.", "2. The applicant", "25. The applicant contended that in order to engage the State’s responsibility in an expulsion case it was necessary for the applicant to establish, firstly, that it was reasonably foreseeable for the State that the action or inaction would result in harm and, secondly, that the harm would reach the threshold of severity of Article 3 treatment. The analysis by the Court in an expulsion case was no different from that in any other case involving alleged future harm under Article 3; and the analysis in an expulsion case involving Aids or other serious illness was no different from that where the risk of ill-treatment emanated from the public authorities in the receiving country. Moreover, there was no conceptual distinction between acute suffering occasioned by the removal of someone at death’s door, who was psychologically prepared for death, and someone who was not so psychologically prepared, having been brought back from the brink of death by treatment which it was proposed to discontinue.", "26. In the instant case there was on the evidence a stark contrast between the applicant’s current situation and what would befall her if removed. The adjudicator found the foreseeable consequence of the expulsion to be exposure to acute physical and mental suffering, followed by an early death. This finding was not displaced throughout the domestic proceedings and was also reached expressly in the speech of Lord Hope (see paragraphs 14 ‑ 17 above).", "27. The applicant submitted that five of her six siblings had died of HIV-related illness in Uganda. She had witnessed their deaths and knew from first-hand experience that all Ugandan doctors could do was to attempt to alleviate symptoms. The hospital in her home town was very small and unable to cope with Aids. She was too weak to work and would not be able to support herself or pay for medication if returned to Uganda. Her quality of life would be appalling; she would quickly relapse into very poor health and she had no relatives left alive to look after her. During her years in the United Kingdom she had formed a private life on the basis of her associations and contacts with people and organisations which had helped her to come to terms with her illness and provided the medical, social and psychological support she needed.", "3. The third party", "28. The Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw, Poland, submitted that the standards established by the Court would affect a large number of Aids sufferers and the Court should seize the opportunity to define the factors to be taken into account when deciding on the expulsion of an HIV/Aids-infected person. Such factors should include: the acquired rights of a person who had been admitted to a host country and treated there using antiretroviral therapy; the medical condition of the person to be removed, principally the degree of dependence on antiretroviral therapy; and the availability of medication in the country of origin to the individual in question.", "B. The Court’s assessment", "1. General principles regarding Article 3 and expulsion", "29. According to the Court’s constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III; Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Keenan v. the United Kingdom, no. 27229/95, § 116, ECHR 2001-III; and Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII).", "30. It is the Court’s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008).", "31. Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection (see H.L.R. v. France, 29 April 1997, § 32, Reports 1997-III, and Ahmed v. Austria, 17 December 1996, § 44, Reports 1996-VI).", "2. The Court’s case-law in respect of Article 3 and the expulsion of the seriously ill", "32. In addition, aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court in the above-cited D. v. the United Kingdom case (§ 49) reserved to itself sufficient flexibility to address the application of Article 3 in other contexts which might arise, where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, did not in themselves infringe the standards of Article 3.", "33. The applicant in D. v. the United Kingdom was a national of St Kitts who had been convicted and sentenced in the United Kingdom in connection with a drugs offence. When he had completed his sentence of imprisonment the United Kingdom authorities sought to deport him to St Kitts. He was, however, by that time in the advanced stages of Aids. When the Court examined the case, his CD4 cell count was below 10, he had suffered severe and irreparable damage to his immune system and his prognosis was very poor; it appeared that he was close to death. He had been counselled about dying and had formed bonds with his carers. There was evidence before the Court that the medical facilities in St Kitts did not have the capacity to provide the applicant with the treatment he needed and he had no family home or close relatives able to look after him there. The Court held (§§ 53-54) as follows:", "“In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3.", "... [T]he respondent State has assumed responsibility for treating the applicant’s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.", "...", "Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison.", "However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.”", "34. Since the judgment in D. v. the United Kingdom, the Court has never found a proposed removal of an alien from a Contracting State to give rise to a violation of Article 3 on grounds of the applicant’s ill health.", "35. In B.B. v. France (7 September 1998, Reports 1998-VI), the applicant, who had been serving a period of imprisonment in France, was suffering from Aids with acute immunosuppression. His condition had reached an advanced stage, requiring repeated hospital stays, but had stabilised as a result of antiretroviral treatment which he claimed would not be available to him in his home country, the Democratic Republic of the Congo. The Commission, in its report on the case, had found that it was highly probable that if the applicant were to be deported he would not have access to treatment designed to inhibit the spread of the virus and that the numerous epidemics raging in his country would increase the risk of infection. To expect him to confront his illness alone, without any support from family members, was likely to make it impossible for him to maintain human dignity as the disease ran its course. It concluded that deporting him would amount to a violation of Article 3. The case was referred to the Court, but before it could examine it the French Government gave an undertaking that the applicant would not be deported and the case was therefore struck out of the Court’s list.", "36. In Karara v. Finland (no. 40900/98, Commission decision of 29 May 1998, unreported), the applicant, a citizen of Uganda, had been treated in Finland for an HIV infection since 1992. The Commission distinguished the case from D. v. the United Kingdom and B.B. v. France on the ground that the applicant’s illness had not yet reached such an advanced stage that his deportation would amount to treatment proscribed by Article 3 and it declared the application inadmissible.", "37. The applicant in S.C.C. v. Sweden ((dec.), no. 46553/99, 15 February 2000), was a Zambian national who had been refused leave to enter Sweden, where she had previously lived and where she had been treated for HIV. The applicant submitted medical evidence to the effect that life-prolonging treatment would have a much better success rate if she was given the chance to continue it in Sweden since the standard of care and monitoring possibilities in Zambia were reduced in comparison. The Court declared the application inadmissible, on the basis that, according to a report from the Swedish embassy in Zambia, the same type of Aids treatment was available there, although at considerable cost, and that the applicant’s children as well as other family members lived there. Taking into account the applicant’s present state of health, her removal to Zambia would not amount to treatment proscribed by Article 3.", "38. The following year the Court delivered judgment in Bensaid v. the United Kingdom (no. 44599/98, ECHR 2001-I). The applicant, an Algerian national, was a schizophrenic who had been treated for this illness for some years in the United Kingdom. The Court unanimously rejected the complaint under Article 3 and held as follows (§§ 36-40):", "“In the present case, the applicant is suffering from a long-term mental illness, schizophrenia. He is currently receiving medication, olanzapine, which assists him in managing his symptoms. If he returns to Algeria, this drug will no longer be available to him free as an outpatient. He does not subscribe to any social insurance fund and cannot claim any reimbursement. It is, however, the case that the drug would be available to him if he was admitted as an inpatient and that it would be potentially available on payment as an outpatient. It is also the case that other medication, used in the management of mental illness, is likely to be available. The nearest hospital for providing treatment is at Blida, some 75 to 80 km from the village where his family live.", "The difficulties in obtaining medication and the stress inherent in returning to that part of Algeria, where there is violence and active terrorism, would, according to the applicant, seriously endanger his health. Deterioration in his already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (such as withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.", "The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless, medical treatment is available to the applicant in Algeria. The fact that the applicant’s circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.", "The Court finds that the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulty of travelling to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made.", "The Court accepts the seriousness of the applicant’s medical condition. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant’s removal in these circumstances would be contrary to the standards of Article 3. The case does not disclose the exceptional circumstances of D. v. the United Kingdom (cited above), where the applicant was in the final stages of a terminal illness, Aids, and had no prospect of medical care or family support on expulsion to St Kitts.”", "39. In Arcila Henao v. the Netherlands ((dec.), no. 13669/03, 24 June 2003), the applicant was a national of Colombia who, while serving a prison sentence for drug trafficking, was found to be HIV-positive and was thus treated using antiretroviral medication. The Court found that the applicant’s present condition was reasonable, but that he might relapse if treatment were discontinued. It noted that the required treatment was “in principle” available in Colombia, where the applicant’s father and six siblings resided. The Court distinguished the case from D. v. the United Kingdom and B.B. v. France (both cited above), on the ground that the applicant’s illness had not reached an advanced or terminal stage and that he had a prospect of medical care and family support in his country of origin. It did not, therefore, find that the circumstances of the applicant’s situation were of such an exceptional nature that his expulsion would amount to treatment proscribed by the Convention and it therefore declared the application inadmissible.", "40. The applicant in Ndangoya v. Sweden ((dec.), no. 17868/03, 22 June 2004), was a Tanzanian national who had been treated with antiretroviral medication which been successful in reducing his HIV levels to the point where they were no longer detectable. It was said that the prospects of his receiving that treatment in Tanzania were very slim and that its interruption would lead to a relatively rapid deterioration of his immune system, to the development of Aids within one to two years and death within three to four years. The application was declared inadmissible, on the grounds that the applicant’s illness had not reached an advanced or terminal stage; adequate treatment was to be had in Tanzania, albeit at considerable cost and with limited availability in the rural area from whence the applicant came; and that he maintained some links with relatives who might be able to help him.", "41. A similar conclusion was reached in Amegnigan v. the Netherlands ((dec.), no. 25629/04, 25 November 2004), where the applicant, who came from Togo, had been treated with antiretroviral treatment in the Netherlands. Medical evidence indicated that as soon as the therapy was stopped he would relapse to the advanced stage of the disease which, given its incurable nature, would entail a direct threat to life. A report on local conditions in Togo indicated that, while the treatment was available there, a person who did not have health insurance would find it difficult to afford it if relatives were unable to provide financial support. The application under Article 3 was declared manifestly ill-founded, on the grounds that the applicant had not reached the stage of full-blown Aids and was not suffering from any HIV-related illness. While acknowledging the assessment of the applicant’s treating specialist doctor that the applicant’s health condition would relapse if treatment would be discontinued, the Court noted that adequate treatment was in principle available in Togo, albeit at a possibly considerable cost.", "3. The principles to be drawn from the case-law", "42. In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles.", "Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. v. the United Kingdom case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.", "43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.", "44. Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.", "45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and Aids-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.", "4. Application of the above principles to the present case", "46. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, she does not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated, ill-treatment. Her claim under Article 3 is based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.", "47. In 1998 the applicant was diagnosed as having two Aids-defining illnesses and a high level of immunosuppression. As a result of the medical treatment she has received in the United Kingdom her condition is now stable. She is fit to travel and will remain fit as long as she continues to receive the basic treatment she needs. The evidence before the national courts indicated, however, that if the applicant were to be deprived of her present medication her condition would rapidly deteriorate and she would suffer ill heath, discomfort, pain and death within a few years (see paragraphs 14-17 above).", "48. According to information collated by WHO (see paragraph 19 above), antiretroviral medication is available in Uganda, although through lack of resources it is received by only half of those in need. The applicant claims that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she comes. It appears that she has family members in Uganda, although she claims that they would not be willing or able to care for her if she were seriously ill.", "49. The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue to provide for her.", "50. The Court accepts that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and Aids worldwide.", "51. In the Court’s view, the applicant’s case cannot be distinguished from those cited in paragraphs 36-41 above. It does not disclose very exceptional circumstances, such as in D. v. the United Kingdom (cited above), and the implementation of the decision to remove the applicant to Uganda would not give rise to a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "52. The applicant argued under Article 8 that the circumstances facing her on return to Uganda would engage her right to respect for her private life.", "53. The Court does not consider that any separate issue arises under Article 8 of the Convention. It is not necessary, therefore, to examine this complaint." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in Uganda in 1974. She currently lives in London.", "9. The applicant entered the United Kingdom on 28 March 1998 under an assumed name. She was seriously ill and was admitted to hospital, where she was diagnosed as HIV-positive with “considerable immunosuppression and ... disseminated mycobacterium TB”.", "10. On 31 March 1998 solicitors lodged an asylum application on her behalf, claiming that she had been ill-treated and raped by the National Resistance Movement in Uganda because of her association with the Lord’s Resistance Army, and asserting that she was in fear of her life and safety if she were returned.", "11. In August 1998 the applicant developed a second Aids-defining illness, Kaposi’s sarcoma. Her CD4 count was down to 10 (that of a healthy person is over 500). After treatment with antiretroviral drugs and frequent monitoring, her condition began to stabilise so that by 2005, when the House of Lords examined the case, her CD4 count had risen to 414.", "12. In March 2001 a consultant physician prepared an expert report, at the request of the applicant’s solicitor, which expressed the view that without continuing regular antiretroviral treatment to improve and maintain her CD4 count, and monitoring to ensure that the correct combination of drugs was used, the applicant’s life expectancy would be less than one year, due to the disseminated Kaposi’s sarcoma and the risk of infections. The medication she needed would be available in Uganda, but only at considerable expense and in limited supply in the applicant’s home town of Masaka. Moreover, the author of the report pointed out that in Uganda there was no provision for publicly funded blood monitoring, basic nursing care, social security, food or housing.", "13. The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Article 3 claim was also rejected, the Secretary of State noting that treatment of Aids in Uganda was comparable to that in any other African country, and that all the major antiretroviral drugs were available in Uganda at highly subsidised prices.", "14. An adjudicator determined the applicant’s appeal on 10 July 2002. He dismissed the appeal against the asylum refusal, but allowed the appeal on Article 3 grounds by reference to the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997-III). He found that the applicant’s case fell within the scope of the Asylum Directorate Instructions which provide that exceptional leave to remain in or enter the United Kingdom must be given:", "“... where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant’s life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK [United Kingdom] can be regarded as having assumed responsibility for his care. ...”", "15. The Secretary of State appealed against the Article 3 finding, contending that all the Aids drugs available under the National Health Service in the United Kingdom could also be obtained locally, and most were also available at a reduced price through the United Nations’ funded projects and from bilateral Aids donor-funded programmes. The applicant’s return would not, therefore, be to a “complete absence of medical treatment”, and so would not subject her to “acute physical and mental suffering”. The Immigration Appeal Tribunal allowed the appeal on 29 November 2002. It found as follows:", "“Medical treatment is available in Uganda for the [applicant’s] condition even though the Tribunal accept that the level of medical provision in Uganda falls below that in the United Kingdom and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries. Nonetheless, extensive efforts are being made in Uganda to tackle the Aids situation – Aids-treating drugs are available, refined forms of drug are being supplied (albeit with time lags) and it would not be until the [applicant’s] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided.”", "16. Leave to appeal to the Court of Appeal was granted on 26 June 2003, and on 16 October 2003 the applicant’s appeal to the Court of Appeal was dismissed by a majority of two to one ([2003] EWCA Civ 1369). With reference to the case of D. v. the United Kingdom (cited above), Lord Justice Laws (with whom Lord Justice Dyson concurred) stated:", "“The contrast between the relative well-being accorded in a signatory State to a very sick person who, for a while, even a long while, is accommodated there, and the scarcities and hardships which (without any violation of international law) he would face if he were returned home, is to my mind – even if the contrast is very great – an extremely fragile basis upon which to erect a legal duty upon the State to confer or extend a right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature, of the State’s government. The elaboration of immigration policy ... is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ECHR [the Convention] where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the State. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with the facilities available in the host country, is to my mind something else altogether.", "... I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. That does not, I acknowledge, amount to a sharp legal test ... an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one’s sympathy on pressing grounds ...”", "Lord Justice Carnwath, dissenting, was unable to say that the facts of the case were so clear that the only reasonable conclusion was that Article 3 did not apply. Given the stark contrast between the applicant’s position in the United Kingdom and the practical certainty of a dramatically reduced life expectancy if returned to Uganda with no effective family support, he would have remitted the case to the fact-finding body in the case, the Immigration Appeal Tribunal.", "17. Leave to appeal to the House of Lords was granted, and on 5 May 2005 the House of Lords unanimously dismissed the applicant’s appeal ([2005] UKHL 31).", "Lord Nicholls of Birkenhead summarised the applicant’s prognosis as follows:", "“... In August 1998 [the applicant] developed a second Aids-defining illness, Kaposi’s sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10.", "As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the [applicant] is now much better. Her CD4 count has risen [from 10] to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for ‘decades’. But without these drugs and facilities the prognosis is ‘appalling’: she will suffer ill health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it.", "The cruel reality is that if the [applicant] returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine turned off.”", "Lord Hope of Craighead, with whom Lord Nicholls, Lord Brown of Eaton-under-Heywood and Lord Walker of Gestingthorpe agreed, referred in detail to the Court’s case-law (see paragraphs 32-41 below), and held as follows:", "“... that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the Article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. ... On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional ... The question on which the Court has to concentrate is whether the present state of the applicant’s health is such that, on humanitarian grounds, he ought not to be expelled unless it can [be] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving State. The only cases where this test has been found to be satisfied are D. v. the United Kingdom ... and B.B. v. France ... [T]he Strasbourg Court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D. v. the United Kingdom represents.", "It may be that the Court has not really faced up to the consequences of developments in medical techniques since the cases of D. v. the United Kingdom and B.B. v. France were decided. The position today is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs. In almost all cases where this treatment is being delivered successfully it will be found that at present the patient is in good health. But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death. The antiretroviral treatment can be likened to a life ‑ support machine. Although the effects of terminating the treatment are not so immediate, in the longer term they are just as fatal. It appears to be somewhat disingenuous for the Court to concentrate on the applicant’s state of health which, on a true analysis, is due entirely to the treatment whose continuation is so much at risk.", "But it cannot be said that the Court is unaware of the advances of medical science in this field. All the recent cases since S.C.C. v. Sweden have demonstrated this feature. The fact that the Court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. The way this principle was referred to and then applied in Amegnigan v. the Netherlands ... is, in my opinion, highly significant. What the Court is in effect saying it that the fact that the treatment may be beyond the reach of the applicant in the receiving State is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the Third World, especially those in sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v. the Netherlands, ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying.", "... So long as [the applicant] continues to take the treatment she will remain healthy and she will have several decades of good health to look forward to. Her present condition cannot be said to be critical. She is fit to travel, and will remain fit if and so long as she can obtain the treatment that she needs when she returns to Uganda. The evidence is that the treatment that she needs is available there, albeit at considerable cost. She also still has relatives there, although her position is that none of them would be willing and able to accommodate and take care of her. In my opinion her case falls into the same category as S.C.C. v. Sweden, Arcila Henao v. the Netherlands, Ndangoya v. Sweden and Amegnigan v. the Netherlands, where the Court has consistently held that the test of exceptional circumstances has not been satisfied. In my opinion the Court’s jurisprudence leads inevitably to the conclusion that her removal to Uganda would not violate the guarantees of Article 3 of the Convention. ...”", "Lord Hope concluded by observing:", "“[Any extension of the principles in D. v. the United Kingdom ] would have the effect of affording all those in the [applicant’s] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV/Aids had reached that which is available in Europe. It would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the States Parties to the Convention would ever have agreed to. The better course, one might have thought, would be for States to continue to concentrate their efforts on the steps which are currently being taken, with the assistance of the drugs companies, to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV/Aids.”", "Baroness Hale of Richmond, agreeing that the appeal should be dismissed, reviewed the domestic and Convention authorities and phrased the test to be applied as follows:", "“... whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. ... [The test] is not met on the facts of this case.”", "II. MEDICAL TREATMENT FOR HIV AND AIDS IN THE UNITED KINGDOM AND UGANDA", "18. According to information obtained by the Court of its own motion, HIV is normally treated by antiretroviral drugs. In the United Kingdom, in common with most developed countries, these drugs are provided in combination, a practice known as “highly active antiretroviral therapy” (HAART). The proper administration of antiretroviral drugs depends on regular monitoring of the patient, including blood tests, and the availability of medical personnel to adjust at frequent intervals the level and type of drugs taken. Such treatment is generally available free of charge on the National Health Service.", "19. In Uganda, attempts have been made to reduce the country’s dependency on imported medication, including producing generic drugs locally. However, in common with most sub-Saharan African countries, the availability of antiretroviral drugs is hampered by limited financial resources and by shortcomings in the health-care infrastructure required to administer them effectively. As a result, according to research carried out by the World Health Organisation (WHO), approximately only half of those needing antiretroviral therapy in Uganda receive it (WHO, “Progress on Global Access to HIV Antiretroviral Therapy”, March 2006, pp. 9, 11 and 72). The Joint United Nations Programme on HIV/Aids (UNAIDS) and WHO in their 2007 country situation analysis on Uganda also cited major barriers to HIV prevention, treatment, care and support as including limited public investment, limited service coverage and lack of a policy framework. There are also significant disparities in the provision of drugs between urban and rural areas (WHO, “Summary Country Profile for HIV/Aids Treatment Scale-Up: Uganda”, December 2005). In addition, progress in providing medical care has been offset by the ever-increasing number of people requiring treatment (UNAIDS/WHO, “Aids Epidemic Update”, 2006, p. 18) and given the rapid population growth in Uganda, its stable HIV incidence rate means that an increasing number of people acquire HIV each year (UNAIDS/WHO, “Aids Epidemic Update”, December 2007, p. 17)." ]

[ "THE LAW", "I. ADMISSIBILITY OF THE COMPLAINTS", "20. The applicant complained that, given her illness and the lack of freely available antiretroviral and other necessary medical treatment, social support or nursing care in Uganda, her removal there would cause acute physical and mental suffering, followed by an early death, in breach of Article 3 of the Convention. The Government disagreed.", "Article 3 provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "21. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant’s complaints.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "A. The parties’ submissions", "1. The Government", "22. The Government submitted that it was clear from the Court’s jurisprudence that, in medical cases such as the present, Article 3 applied only in “exceptional”, or “very exceptional”, circumstances. This restriction of the application of Article 3 was correct as a matter of principle, given that the source of the risk was not in the expelling State and that it stemmed from factors which were not such as to engage the responsibility of the public authorities of the receiving State. The case-law further demonstrated that “exceptional circumstances” would be found only where the applicant’s illness had reached a very advanced or terminal stage and where the probable lack of medical care and support, including support from family members, in the receiving State would be such as to deprive him or her of “the most basic human dignity as his illness runs its inevitably painful and fatal course” (see D. v. the United Kingdom, 2 May 1997, opinion of the Commission, § 60, Reports of Judgments and Decisions 1997-III). In considering whether there were exceptional circumstances, the Court in previous cases had focused primarily on the gravity of the applicant’s medical condition at the moment of the intended removal and had not, to date, carried out any detailed consideration of whether the required treatment and care would be available in practice to the applicant in the receiving country.", "23. The “exceptional circumstances” threshold was not satisfied in the instant case. While the Government accepted that without antiretroviral drugs the applicant’s condition would deteriorate rapidly and she would suffer illness, discomfort, pain and death within a year or two, they maintained that her illness was currently stable and that the treatment she needed was available in Uganda, albeit at considerable cost. She was fit to travel and would remain fit if, and so long as, she could obtain the treatment that she needed when she returned to Uganda. She had family members there, although she maintained that they would not be willing or able to care for her if she was seriously ill. For these reasons, the case was distinguishable from D. v. the United Kingdom and fell into the category of medical cases in which the Court had rejected the claim under Article 3 (see paragraphs 34-39 below).", "24. Advances in the treatment of HIV and Aids available in developed States did not affect the above general principle, as set out in the case-law from D. v. the United Kingdom onwards, since the focus in those cases was on ensuring a dignified death rather than prolonging life. The interpretation of the Convention, as with any international treaty, was confined by the consent of the Contracting States. The practical effect of extending Article 3 to cover the applicant’s case would be to grant her, and countless others afflicted by Aids and other fatal diseases, a right to remain and to continue to benefit from medical treatment within a Contracting State. It was inconceivable that the Contracting States would have agreed to such a provision. The Convention was intended primarily to protect civil and political, rather than economic and social, rights. The protection provided by Article 3 was absolute and fundamental, whereas provisions on health care contained in international instruments such as the European Social Charter and the International Covenant on Economic, Social and Cultural Rights were merely aspirational in character and did not provide the individual with a directly enforceable right. To enable an applicant to claim access to health care by the “back door” of Article 3 would leave the State with no margin of appreciation and would be entirely impractical and contrary to the intention behind the Convention.", "2. The applicant", "25. The applicant contended that in order to engage the State’s responsibility in an expulsion case it was necessary for the applicant to establish, firstly, that it was reasonably foreseeable for the State that the action or inaction would result in harm and, secondly, that the harm would reach the threshold of severity of Article 3 treatment. The analysis by the Court in an expulsion case was no different from that in any other case involving alleged future harm under Article 3; and the analysis in an expulsion case involving Aids or other serious illness was no different from that where the risk of ill-treatment emanated from the public authorities in the receiving country. Moreover, there was no conceptual distinction between acute suffering occasioned by the removal of someone at death’s door, who was psychologically prepared for death, and someone who was not so psychologically prepared, having been brought back from the brink of death by treatment which it was proposed to discontinue.", "26. In the instant case there was on the evidence a stark contrast between the applicant’s current situation and what would befall her if removed. The adjudicator found the foreseeable consequence of the expulsion to be exposure to acute physical and mental suffering, followed by an early death. This finding was not displaced throughout the domestic proceedings and was also reached expressly in the speech of Lord Hope (see paragraphs 14 ‑ 17 above).", "27. The applicant submitted that five of her six siblings had died of HIV-related illness in Uganda. She had witnessed their deaths and knew from first-hand experience that all Ugandan doctors could do was to attempt to alleviate symptoms. The hospital in her home town was very small and unable to cope with Aids. She was too weak to work and would not be able to support herself or pay for medication if returned to Uganda. Her quality of life would be appalling; she would quickly relapse into very poor health and she had no relatives left alive to look after her. During her years in the United Kingdom she had formed a private life on the basis of her associations and contacts with people and organisations which had helped her to come to terms with her illness and provided the medical, social and psychological support she needed.", "3. The third party", "28. The Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw, Poland, submitted that the standards established by the Court would affect a large number of Aids sufferers and the Court should seize the opportunity to define the factors to be taken into account when deciding on the expulsion of an HIV/Aids-infected person. Such factors should include: the acquired rights of a person who had been admitted to a host country and treated there using antiretroviral therapy; the medical condition of the person to be removed, principally the degree of dependence on antiretroviral therapy; and the availability of medication in the country of origin to the individual in question.", "B. The Court’s assessment", "1. General principles regarding Article 3 and expulsion", "29. According to the Court’s constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III; Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Keenan v. the United Kingdom, no. 27229/95, § 116, ECHR 2001-III; and Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII).", "30. It is the Court’s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008).", "31. Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection (see H.L.R. v. France, 29 April 1997, § 32, Reports 1997-III, and Ahmed v. Austria, 17 December 1996, § 44, Reports 1996-VI).", "2. The Court’s case-law in respect of Article 3 and the expulsion of the seriously ill", "32. In addition, aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court in the above-cited D. v. the United Kingdom case (§ 49) reserved to itself sufficient flexibility to address the application of Article 3 in other contexts which might arise, where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, did not in themselves infringe the standards of Article 3.", "33. The applicant in D. v. the United Kingdom was a national of St Kitts who had been convicted and sentenced in the United Kingdom in connection with a drugs offence. When he had completed his sentence of imprisonment the United Kingdom authorities sought to deport him to St Kitts. He was, however, by that time in the advanced stages of Aids. When the Court examined the case, his CD4 cell count was below 10, he had suffered severe and irreparable damage to his immune system and his prognosis was very poor; it appeared that he was close to death. He had been counselled about dying and had formed bonds with his carers. There was evidence before the Court that the medical facilities in St Kitts did not have the capacity to provide the applicant with the treatment he needed and he had no family home or close relatives able to look after him there. The Court held (§§ 53-54) as follows:", "“In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3.", "... [T]he respondent State has assumed responsibility for treating the applicant’s condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.", "...", "Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison.", "However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.”", "34. Since the judgment in D. v. the United Kingdom, the Court has never found a proposed removal of an alien from a Contracting State to give rise to a violation of Article 3 on grounds of the applicant’s ill health.", "35. In B.B. v. France (7 September 1998, Reports 1998-VI), the applicant, who had been serving a period of imprisonment in France, was suffering from Aids with acute immunosuppression. His condition had reached an advanced stage, requiring repeated hospital stays, but had stabilised as a result of antiretroviral treatment which he claimed would not be available to him in his home country, the Democratic Republic of the Congo. The Commission, in its report on the case, had found that it was highly probable that if the applicant were to be deported he would not have access to treatment designed to inhibit the spread of the virus and that the numerous epidemics raging in his country would increase the risk of infection. To expect him to confront his illness alone, without any support from family members, was likely to make it impossible for him to maintain human dignity as the disease ran its course. It concluded that deporting him would amount to a violation of Article 3. The case was referred to the Court, but before it could examine it the French Government gave an undertaking that the applicant would not be deported and the case was therefore struck out of the Court’s list.", "36. In Karara v. Finland (no. 40900/98, Commission decision of 29 May 1998, unreported), the applicant, a citizen of Uganda, had been treated in Finland for an HIV infection since 1992. The Commission distinguished the case from D. v. the United Kingdom and B.B. v. France on the ground that the applicant’s illness had not yet reached such an advanced stage that his deportation would amount to treatment proscribed by Article 3 and it declared the application inadmissible.", "37. The applicant in S.C.C. v. Sweden ((dec.), no. 46553/99, 15 February 2000), was a Zambian national who had been refused leave to enter Sweden, where she had previously lived and where she had been treated for HIV. The applicant submitted medical evidence to the effect that life-prolonging treatment would have a much better success rate if she was given the chance to continue it in Sweden since the standard of care and monitoring possibilities in Zambia were reduced in comparison. The Court declared the application inadmissible, on the basis that, according to a report from the Swedish embassy in Zambia, the same type of Aids treatment was available there, although at considerable cost, and that the applicant’s children as well as other family members lived there. Taking into account the applicant’s present state of health, her removal to Zambia would not amount to treatment proscribed by Article 3.", "38. The following year the Court delivered judgment in Bensaid v. the United Kingdom (no. 44599/98, ECHR 2001-I). The applicant, an Algerian national, was a schizophrenic who had been treated for this illness for some years in the United Kingdom. The Court unanimously rejected the complaint under Article 3 and held as follows (§§ 36-40):", "“In the present case, the applicant is suffering from a long-term mental illness, schizophrenia. He is currently receiving medication, olanzapine, which assists him in managing his symptoms. If he returns to Algeria, this drug will no longer be available to him free as an outpatient. He does not subscribe to any social insurance fund and cannot claim any reimbursement. It is, however, the case that the drug would be available to him if he was admitted as an inpatient and that it would be potentially available on payment as an outpatient. It is also the case that other medication, used in the management of mental illness, is likely to be available. The nearest hospital for providing treatment is at Blida, some 75 to 80 km from the village where his family live.", "The difficulties in obtaining medication and the stress inherent in returning to that part of Algeria, where there is violence and active terrorism, would, according to the applicant, seriously endanger his health. Deterioration in his already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (such as withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.", "The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless, medical treatment is available to the applicant in Algeria. The fact that the applicant’s circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.", "The Court finds that the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulty of travelling to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made.", "The Court accepts the seriousness of the applicant’s medical condition. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant’s removal in these circumstances would be contrary to the standards of Article 3. The case does not disclose the exceptional circumstances of D. v. the United Kingdom (cited above), where the applicant was in the final stages of a terminal illness, Aids, and had no prospect of medical care or family support on expulsion to St Kitts.”", "39. In Arcila Henao v. the Netherlands ((dec.), no. 13669/03, 24 June 2003), the applicant was a national of Colombia who, while serving a prison sentence for drug trafficking, was found to be HIV-positive and was thus treated using antiretroviral medication. The Court found that the applicant’s present condition was reasonable, but that he might relapse if treatment were discontinued. It noted that the required treatment was “in principle” available in Colombia, where the applicant’s father and six siblings resided. The Court distinguished the case from D. v. the United Kingdom and B.B. v. France (both cited above), on the ground that the applicant’s illness had not reached an advanced or terminal stage and that he had a prospect of medical care and family support in his country of origin. It did not, therefore, find that the circumstances of the applicant’s situation were of such an exceptional nature that his expulsion would amount to treatment proscribed by the Convention and it therefore declared the application inadmissible.", "40. The applicant in Ndangoya v. Sweden ((dec.), no. 17868/03, 22 June 2004), was a Tanzanian national who had been treated with antiretroviral medication which been successful in reducing his HIV levels to the point where they were no longer detectable. It was said that the prospects of his receiving that treatment in Tanzania were very slim and that its interruption would lead to a relatively rapid deterioration of his immune system, to the development of Aids within one to two years and death within three to four years. The application was declared inadmissible, on the grounds that the applicant’s illness had not reached an advanced or terminal stage; adequate treatment was to be had in Tanzania, albeit at considerable cost and with limited availability in the rural area from whence the applicant came; and that he maintained some links with relatives who might be able to help him.", "41. A similar conclusion was reached in Amegnigan v. the Netherlands ((dec.), no. 25629/04, 25 November 2004), where the applicant, who came from Togo, had been treated with antiretroviral treatment in the Netherlands. Medical evidence indicated that as soon as the therapy was stopped he would relapse to the advanced stage of the disease which, given its incurable nature, would entail a direct threat to life. A report on local conditions in Togo indicated that, while the treatment was available there, a person who did not have health insurance would find it difficult to afford it if relatives were unable to provide financial support. The application under Article 3 was declared manifestly ill-founded, on the grounds that the applicant had not reached the stage of full-blown Aids and was not suffering from any HIV-related illness. While acknowledging the assessment of the applicant’s treating specialist doctor that the applicant’s health condition would relapse if treatment would be discontinued, the Court noted that adequate treatment was in principle available in Togo, albeit at a possibly considerable cost.", "3. The principles to be drawn from the case-law", "42. In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles.", "Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. v. the United Kingdom case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.", "43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.", "44. Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.", "45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and Aids-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.", "4. Application of the above principles to the present case", "46. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, she does not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated, ill-treatment. Her claim under Article 3 is based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.", "47. In 1998 the applicant was diagnosed as having two Aids-defining illnesses and a high level of immunosuppression. As a result of the medical treatment she has received in the United Kingdom her condition is now stable. She is fit to travel and will remain fit as long as she continues to receive the basic treatment she needs. The evidence before the national courts indicated, however, that if the applicant were to be deprived of her present medication her condition would rapidly deteriorate and she would suffer ill heath, discomfort, pain and death within a few years (see paragraphs 14-17 above).", "48. According to information collated by WHO (see paragraph 19 above), antiretroviral medication is available in Uganda, although through lack of resources it is received by only half of those in need. The applicant claims that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she comes. It appears that she has family members in Uganda, although she claims that they would not be willing or able to care for her if she were seriously ill.", "49. The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue to provide for her.", "50. The Court accepts that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and Aids worldwide.", "51. In the Court’s view, the applicant’s case cannot be distinguished from those cited in paragraphs 36-41 above. It does not disclose very exceptional circumstances, such as in D. v. the United Kingdom (cited above), and the implementation of the decision to remove the applicant to Uganda would not give rise to a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "52. The applicant argued under Article 8 that the circumstances facing her on return to Uganda would engage her right to respect for her private life.", "53. The Court does not consider that any separate issue arises under Article 8 of the Convention. It is not necessary, therefore, to examine this complaint." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1958. He lived in Brussels and died there on 7 June 2016.", "11. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and a six-year-old child. The applicant claimed to be the father of the child, an assertion which the Government contested. The couple subsequently had a child together in August 1999 and another in July 2006.", "A. Criminal proceedings", "12. On 29 December 1998 the applicant was arrested and taken into custody on charges of theft. On 14 April 1999 he received a sentence of seven months ’ imprisonment, which was suspended except for the period of pre ‑ trial detention.", "13. In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences.", "14. On 28 April 2000 the applicant ’ s wife was sentenced to four months ’ imprisonment for theft.", "15. On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and received a sentence of fourteen months ’ imprisonment, which was suspended except for the period of pre-trial detention.", "16. On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years ’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception or corruption.", "17. Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence.", "B. Asylum proceedings", "18. On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application.", "19. As the applicant ’ s wife stated that she had travelled through Germany, a request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”).", "20. After the German authorities had refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999.", "21. On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints had been checked.", "22. On 23 October 2000 the Aliens Office informed the applicant ’ s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application.", "C. Requests for leave to remain on exceptional grounds", "1. First request for regularisation on exceptional grounds", "23. On 20 March 2000 the applicant lodged a first request for regularisation for a period of more than three months, on the basis of section 9(3) (since 1 June 2007, section 9 bis ) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request the applicant stated that he and his wife had a daughter born in Georgia before their arrival in Belgium and another daughter born in Belgium in 1999.", "24. On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant ’ s medical treatment for tuberculosis had ended (see paragraph 49 below). The Aliens Office also referred to the applicant ’ s lack of integration in Belgium and the numerous breaches of public order he had committed.", "2. Second request for regularisation on exceptional grounds", "25. On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children ’ s schooling, the fact that he had been the victim of persecution and his state of health.", "26. The Aliens Office declared the request inadmissible on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical supervision, the applicant ’ s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country.", "27. In a judgment of 29 February 2008 the Aliens Appeals Board rejected an application by the applicant to set aside the Aliens Office ’ s decision. It noted in particular that, since the decision complained of had not been accompanied as such by a removal measure, it could not give rise to a risk of violation of Article 3 of the Convention.", "3. Third request for regularisation on exceptional grounds", "28. On 10 September 2007, relying on the same grounds as those invoked under section 9 ter of the Aliens Act (see paragraph 54 below) and on his family situation, the applicant lodged a request for regularisation on exceptional grounds under section 9 bis of the Aliens Act.", "29. On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State ’ s best interests took precedence over the applicant ’ s social and family interests and that by committing serious punishable acts the applicant himself had placed his family ’ s unity in jeopardy. That decision was served on the applicant on 11 July 2010.", "30. On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the decision of 7 July 2010 rejecting his request for regularisation of his status, together with an application to have that decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraph 78 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III), that he would not have access to treatment in Georgia and that the discontinuation of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were returned to Georgia he would be separated from his family permanently.", "31. The request and application were refused by the Aliens Appeals Board in a judgment of 16 March 2015 on the ground that the applicant had not attended the hearing or been represented.", "4. Regularisation of the residence status of the applicant ’ s family", "32. On 5 November 2009 the applicant ’ s wife lodged a request for regularisation on exceptional grounds under section 9 bis of the Aliens Act, relying on her family situation and the duration of her residence in Belgium.", "33. On 29 July 2010 she and her three children were granted indefinite leave to remain.", "D. The applicant ’ s state of health", "1. Chronic lymphocytic leukaemia", "34. In 2006, while the applicant was in prison (see paragraph 17 above), he was diagnosed with chronic lymphocytic leukaemia in Binet stage B, with a very high level of CD38 expression. No treatment was commenced.", "35. As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of chemotherapy.", "36. A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen significantly.", "37. From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held.", "38. On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility for illegal aliens (see paragraph 79 below), to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor ’ s report noted that the applicant ’ s leukaemia, which was progressing rapidly towards Binet stage C, had not been monitored sufficiently and that a different course of chemotherapy was required.", "39. In August 2011 the applicant ’ s condition worsened and the doctors observed that his leukaemia had progressed to Binet stage C, with anaemia and widespread enlargement of the lymph nodes (life expectancy of twenty ‑ four months). It was decided to switch to a different course of chemotherapy.", "40. On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels, where the applicant was being treated following his release (see paragraph 82 below), drew up a certificate which stated as follows:", "“...", "D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and consequent disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the [chronic lymphocytic leukaemia] could lead to the patient ’ s death as a result of the disease itself or the effects of serious infections.", "A return to Georgia would expose the patient to inhuman and degrading treatment.", "E. Progression and prognosis. Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real, so that close monitoring is required even during remission. ...”", "41. After a relapse diagnosed in 2013, the doctors in St Pierre University Hospital observed in March 2014 that the applicant ’ s leukaemia had developed into lymphocytic lymphoma, and his chemotherapy was adjusted accordingly. A positron ‑ emission tomography (PET) scan performed on 22 September 2014 showed a lack of response to the chemotherapy, a progression of the disease in the lymph nodes and the liver, and a pulmonary infection.", "42. The applicant ’ s treatment was handed over to the Institut Bordet in Brussels, a hospital devoted exclusively to the treatment of cancer patients.", "43. In December 2014 the applicant began to receive a new course of treatment as part of a study. He was given Ibrutinib, designed in particular to improve his overall condition, which had been compromised by complications arising out of the treatment (fungaemia, pulmonary infections, septicaemia and cholecystitis, resulting in his being admitted to hospital on several occasions). The treatment was prescribed in order to improve the applicant ’ s overall condition in preparation for a donor stem cell transplant.", "44. A medical certificate issued on 25 May 2015 by the specialist treating the applicant, Dr L., head of the experimental haematology laboratory at the Institut Bordet, stated that the patient ’ s viral load was stable. The doctor stressed that discontinuing treatment would result in the patient ’ s death. Because of the patient ’ s immunosuppression and the aggressive nature of the leukaemia, treatment in a specialised haematology unit was necessary, as was a donor stem cell transplant, which offered the only remaining prospect of a cure provided that it was performed during the two-year “window of response” to Ibrutinib.", "45. The applicant stated that the stem cell transplant, originally scheduled to take place in April 2015, had not been performed to date because he did not have a residence permit in Belgium as required by the Organ Removal and Transplant Act of 13 June 1986.", "46. On 14 July 2015 a new medical report was prepared by Dr L. which read as follows:", "“The patient ’ s CLL [chronic lymphocytic leukaemia]", "...", "The patient has been suffering from CLL for nine years (diagnosed in 2006), and by 2011 had already reached stage C and Rai IV [stage IV according to the Rai criteria]. He had already had three lines of treatment prior to Ibrutinib, which he is currently taking, and was refractory to the third line of treatment (R-CVP chemotherapy).", "It is clear from the medical literature that if Ibrutinib is discontinued in such a situation, the average life expectancy is three months. ...", "The literature also shows that only 7% of patients being treated with Ibrutinib achieve complete remission. Mr Paposhvili is currently in partial remission and is thus wholly dependent on the treatment. This is a new targeted therapy to which he would have no access in his country of origin. With continuous treatment the patient ’ s prognosis is more favourable, with an 87% survival rate after three years. ...", "CLL and especially treatment with Ibrutinib can give rise to serious complications which fully justify regular supervision in a specialised setting. This is particularly true since the patient is in a weak state and has a serious medical history (tuberculosis and stroke) and significant comorbidities (active chronic hepatitis and COPD [chronic obstructive pulmonary disease]). ...", "In the case of a young person – Mr Paposhvili is only 57 – the current guidelines advocate using Ibrutinib in order to obtain the best possible response, followed by a donor peripheral blood stem cell transplant. A HLA [human leukocyte antigen] matched donor has been identified for the patient.", "Although risky, a donor transplant offers the only prospect of a cure for the patient; he would be unable to have such a transplant in his country of origin.", "...", "Conclusions", "The [Aliens Office ’ s medical adviser] concludes ... [that] the condition of the patient ’ s vital organs is not directly life-threatening. That all depends on what is meant by ‘ directly ’. The patient is suffering from a cancer that is potentially fatal in the short term (median survival time nineteen months) ... and most likely within six months without appropriate treatment.", "Moreover, if the treatment is not tailored to the patient ’ s overall immunosuppression, there is a serious risk of death caused by infection, especially in a Gold stage II COPD patient with a history of tuberculosis. ...”", "47. On 1 August 2015 treatment with Ibrutinib became eligible for reimbursement in Belgium.", "48. Because of the side-effects of this treatment, which might compromise the donor transplant, the dose of Ibrutinib was reduced from three doses to one dose per day.", "2. Other illnesses", "49. In 2000 the applicant was diagnosed with active pulmonary tuberculosis. He was treated for that condition under the emergency medical assistance and social welfare assistance schemes.", "50. During 2008 the applicant ’ s tuberculosis was found to have become active again.", "51. As a result of that disease the applicant developed chronic obstructive pulmonary disease, for which he received treatment.", "52. In addition, the applicant suffered from hepatitis C, which was also diagnosed in 2006 and was probably linked to a history of drug abuse. It was accompanied by liver fibrosis. According to a medical report dated 24 April 2015 his hepatitis, which had been treated effectively in 2012 and 2013, had become stable.", "53. A magnetic resonance imaging scan carried out in March 2015 showed that the applicant had suffered a stroke, resulting in permanent paralysis of the left arm. The effects of the stroke were managed with an anti-epilepsy drug.", "E. Requests for regularisation on medical grounds", "1. First request for regularisation on medical grounds", "54. On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraph 34 above) if he were sent back to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9 ter of the Aliens Act.", "55. On 26 September 2007 the Aliens Office refused the request on the ground that, under section 9 ter (4) of the Act, the applicant was excluded from its scope on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 73 below).", "56. On 17 December 2007 the applicant lodged a request for a stay of execution of that decision under the ordinary procedure, together with an application to set aside. He alleged in particular that the Aliens Office had relied exclusively on the ministerial deportation order in excluding him from the scope of section 9 ter of the Aliens Act, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention.", "57. In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant ’ s claims in the following terms:", "“It is clear from the wording of [section 9 ter ] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9 ter, from ruling immediately on the exclusion of the person concerned from the scope of the said section 9 ter without first being required to take a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. Indeed, the examination of that evidence is superfluous in such a situation since the person responsible for taking the decision has in any event already decided that the individual is excluded from the scope [of section 9 ter ].", "...", "As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any removal measure, with the result that the alleged risk of discontinuation of treatment in the event of the applicant ’ s return to Georgia is hypothetical.”", "58. The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision had not been accompanied by any removal measure.", "2. Second request for regularisation on medical grounds", "59. In the meantime, on 3 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9 ter of the Aliens Act. In addition to his various health problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had any family ties and where the medical facilities were unsuitable and expensive.", "60. The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 55 above).", "61. On 16 July 2008 the applicant lodged an application with the Aliens Appeals Board to have that decision set aside.", "62. In a judgment of 21 May 2015 the Aliens Appeals Board rejected the application to set aside. It held that, where the above-mentioned exclusion clause was applied, the Aliens Office was not required to rule on the medical and other evidence contained in the request for regularisation. According to the Aliens Appeals Board, such examination was superfluous by virtue of the exclusion clause alone. The Board pointed out that its task was to review the lawfulness of the measure. This review did not permit it to substitute its own assessment of the facts that were deemed to have been established and were not apparent from the administrative file; rather, its task was confined to ensuring that the formal requirement to provide reasons had been complied with and that the reasoning was not based on a manifest error of assessment. As to the complaints alleging a violation of Articles 2 and 3 of the Convention, the Aliens Appeals Board stated that the assessment of the medical situation of an alien facing removal whose request for regularisation had been rejected should be carried out, as applicable, at the time of enforcement of the removal measure.", "63. On 22 June 2015 the applicant lodged an appeal on points of law against that judgment with the Conseil d ’ État. One of the grounds of appeal was based on Articles 2 and 3 of the Convention. The applicant submitted that the Aliens Appeals Board could not have been unaware that several orders to leave the country had already been issued against him prior to the decision not to examine his request for leave to remain, and that his expulsion had been suspended only as a result of the interim measure applied by the Court (see paragraph 87 below). The applicant further argued that the Aliens Appeals Board had breached the provisions of the Convention by postponing until the date of enforcement of the removal measure the examination of the medical situation of an alien suffering from a serious illness who had requested leave to remain on medical grounds, without studying the specific risks.", "64. In an order of 9 July 2015 the appeal on points of law was declared inadmissible. The Conseil d ’ État held that, contrary to the applicant ’ s assertion, the grounds for setting aside advanced before the Aliens Appeals Board had simply stressed, in a theoretical and general manner, that section 9 ter of the Act encompassed the application in domestic law of the obligation under Articles 2 and 3 of the Convention prohibiting the removal of a seriously ill person if such a measure was liable to result in death or inhuman and degrading treatment; no specific explanation had been given, however, as to how the applicant himself risked facing that situation. The Conseil d ’ État also observed that the applicant had not argued before the Aliens Appeals Board that orders to leave the country had been issued against him, or that a removal measure could be revived; he was therefore unable to rely on those arguments in his appeal on points of law. In any event, the Conseil d ’ État held that the Aliens Appeals Board had in no way erred in finding that the examination of the medical situation of an alien facing removal whose request for leave to remain had been rejected should be carried out, as applicable, at the time of enforcement of the measure.", "3. Review of the applicant ’ s situation in connection with the proceedings before the Court", "65. The applicant was requested to report to the Aliens Office ’ s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to reply to the Court ’ s questions.", "66. The report prepared by the medical adviser on that occasion listed the consultations held and the treatment that had been administered to the applicant. It stated that his leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, and that the applicant was under medical supervision for his lung disease.", "67. Referring to the Court ’ s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows:", "“On the basis of this medical file it cannot ... be concluded that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached ...", "It appears from the medical file that the diseases to which the medical certificates refer ... do not disclose a direct threat to the patient ’ s life. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control.", "None of the patient ’ s vital organs is in a condition that is directly life-threatening. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is being controlled by treatment consisting solely of an inhaled corticosteroid. The patient ’ s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient ’ s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being.", "... Neither monitoring of the patient ’ s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient ’ s survival.", "The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.”", "68. A medical report drawn up on 23 June 2015 by the medical adviser to the Aliens Office provided a detailed review of the applicant ’ s clinical history and current state of health and the treatment being administered. It concluded as follows:", "“On the basis of [the] medical file it cannot therefore be concluded that the threshold of severity set by Article 3 of the Convention, which requires a risk to life on account of the applicant ’ s critical condition or the very advanced stage of his or her illness, has been reached ( N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008, and D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III).", "The diseases referred to in the most recent update to the medical file ([Dr L.], 25 May 2015) ... do not disclose:", "– a direct threat to the life of the patient. The illnesses from which the applicant suffers are serious and potentially fatal but are currently under control. ...", "– that the condition of the patient ’ s vital organs is directly life-threatening. ...", "– a critical state of health. Neither monitoring of the patient ’ s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient ’ s survival. The disease cannot be said to be in the terminal stages at present ...”", "F. Removal proceedings and the Court ’ s intervention", "1. Order to leave the country under the Dublin Convention", "69. On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant ’ s wife was pregnant.", "70. After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist.", "71. The time-limit for enforcement of the order for the family to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant ’ s tuberculosis (see paragraph 49 above) and the six-month course of anti-tubercular treatment required by the whole family.", "72. On 23 October 2000 the Aliens Office informed the applicant ’ s lawyer that the time-limit had been extended until such time as the applicant and his child were fully recovered.", "2. Ministerial deportation order", "73. On 16 August 2007, while the applicant was serving a prison sentence (see paragraph 17 above), the Minister of the Interior, in a deportation order issued under section 20 of the Aliens Act, directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant ’ s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”.", "74. The order became enforceable on the date of the applicant ’ s release but was not in fact enforced because the applicant was undergoing medical treatment at the time.", "75. The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time.", "76. In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he was transferred on 14 August 2007 to Bruges Prison with a view to implementation of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison.", "77. During his time in Bruges Prison the applicant was visited on an almost daily basis by his wife and/or his children. The authorities of Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010, informed the applicant that they did not have a record of the number of visits he had received.", "3. Orders to leave the country following refusal of the regularisation request", "78. In parallel with its decision of 7 July 2010 refusing the applicant ’ s request for regularisation on exceptional grounds (see paragraph 2 9 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These orders, made on the basis of section 7(1)(1) of the Aliens Act, were served on the applicant on 11 July 2010.", "79. Also on 7 July 2010 it was decided that the applicant should be transferred on 13 July to the Merksplas closed facility for illegal aliens with a view to his removal to Georgia.", "80. On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010.", "81. On the same day the applicant lodged a request for a stay of execution under the ordinary procedure, together with an application to set aside, directed specifically against the above-mentioned order to leave the country of 7 July 2010.", "82. On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 87 below), an order was made for the applicant ’ s release and he was given until 30 August 2010 to leave the country voluntarily.", "83. In a letter dated 30 August 2010 counsel for the applicant applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was initially extended until 13 November 2010 and was subsequently extended several times until 19 February 2011.", "84. On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” pursuant to the ministerial deportation order of 16 August 2007.", "85. The above-mentioned request and application were rejected by the Aliens Appeals Board in a judgment of 29 May 2015 on the ground that the applicant had not attended the hearing or been represented.", "4. Indication of an interim measure under Rule 39 of the Rules of Court", "86. In the meantime, on 23 July 2010, the applicant applied to the Court for interim measures under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were removed to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die even sooner, far away from his family.", "87. On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”.", "G. Other events", "88. The applicant was arrested on several occasions between 2012 and 2015 for shoplifting.", "89. In addition, in July 2013 the Aliens Office was contacted by the Luxembourg police and customs cooperation centre, which reported that the applicant was in detention in the Grand Duchy of Luxembourg.", "90. In May 2014 a warrant was issued for the applicant ’ s arrest for theft. The applicant was detained in Bruges Prison and released a few days later.", "91. Two notarised deeds of sale dated 24 March and 5 August 2015 record the transfer by the applicant, represented by E.B., to a certain Aleksandre Paposhvili, of a plot of building land for a sum of 30,000 euros (EUR) and a plot of farmland for a sum of EUR 5,000. Both plots are located in the village of Kalauri in the Gurjaani region of Georgia." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Regularisation procedures", "1. Regularisation on exceptional grounds", "92. In order to be allowed to remain in Belgium for more than three months, aliens must normally obtain permission before arriving in the country. Section 9(2) of the Aliens Act provides:", "“... Except where an international treaty, statute or royal decree otherwise provides, such permission [to remain in the Kingdom beyond the period laid down in section 6, namely for more than three months] shall be requested by the aliens concerned at the Belgian diplomatic mission or consulate responsible for their place of permanent residence or their temporary residence abroad.”", "93. Aliens whose residence status in Belgium is unlawful or precarious, and who wish to obtain long-term leave to remain without having to return to their country of origin, may apply directly in Belgium if they can claim exceptional circumstances. According to established case-law and practice, regularisation of residence status may be granted on a case ‑ by-case basis under section 9 bis (former section 9(3)) of the Aliens Act. Section 9 bis (1) reads as follows:", "“In exceptional circumstances, and provided that the alien concerned is in possession of identity papers, leave to remain may be requested from the mayor of the municipality in which he or she is resident, who forwards the request to the Minister or his or her representative. Where the Minister or his or her representative grants leave to remain, the residence permit shall be issued in Belgium.", "...”", "94. The Act does not specify either the exceptional circumstances on the basis of which the request may be made from within Belgium or the substantive grounds on which leave to remain may be granted. It is for the Aliens Office to assess the circumstances alleged by the alien concerned in each individual case. It begins by examining the exceptional circumstances invoked, in order to determine whether the request is admissible. If this is the case, it rules subsequently on the substantive grounds relied on by the alien concerned in support of the request for leave to remain.", "2. Regularisation on medical grounds", "(a) Section 9 ter of the Aliens Act", "95. Section 9 ter of the Aliens Act provides for the possibility of granting leave to remain on medical grounds. The first paragraph, as inserted by the Act of 15 September 2006, amended by the Act of 7 June 2009 and replaced by the Act of 29 December 2010, provided as follows at the material time:", "“1. Aliens resident in Belgium who provide proof of identity in accordance with paragraph 2 and who are suffering from an illness entailing a real risk to their life or physical well-being or a real risk of inhuman or degrading treatment if no appropriate treatment exists in their country of origin or previous country of residence may apply to the Minister or his or her representative for leave to remain in the Kingdom.", "The request must be made by registered letter to the Minister or his or her representative and must include the actual address of the alien concerned in Belgium.", "The alien concerned must submit the request together with all the relevant information concerning his or her illness and the availability and accessibility of appropriate treatment in the country of origin or the previous country of residence.", "He or she shall submit a standard medical certificate as provided for by royal decree approved by the Cabinet. The medical certificate shall indicate the illness, its degree of seriousness and the treatment considered necessary.", "The assessment of the risk referred to in the first sub-paragraph, the possibilities for treatment, the accessibility of such treatment in the country of origin or of previous residence, together with the assessment of the illness, its seriousness and the treatment considered necessary, as indicated in the medical certificate, shall be carried out by a medical officer or a doctor appointed by the Minister or his or her representative, who shall issue an opinion in this regard. The doctor in question may, if he or she deems necessary, examine the individual concerned and seek additional expert opinions.”", "96. The procedure for examining requests for regularisation takes place in two stages. The first stage involves an examination by an official of the Aliens Office of the admissibility of the request, with particular regard to the information that must be included on the medical certificate (indication of the illness, its seriousness and the treatment considered necessary). In that connection the Aliens Appeals Board has stated that “[the legislature ’ s] aim of clarifying the procedure would be thwarted if [the Aliens Office] were required to carry out an in-depth examination of each medical certificate produced and the accompanying documents in order to ascertain the nature of the illness, its seriousness and the treatment considered necessary, given that the [official responsible] is neither a medical officer nor another doctor appointed for the purpose” (see, in particular, Aliens Appeals Board, judgment no. 69.508 of 28 October 2011). The second stage, which concerns only those requests deemed to be admissible, consists of a comprehensive review by the Aliens Office of the individual ’ s state of health and a substantive assessment of the factors enumerated in the legislation, on the basis of the opinion of a medical officer or another doctor appointed for the purpose.", "97. It is clear from the drafting history of section 9 ter that the question whether appropriate and sufficiently accessible treatment exists in the receiving country is examined on a case-by-case basis, taking into account the requesting party ’ s individual situation, assessed within the confines of the Court ’ s case-law (explanatory report, Doc. Parl., 2005-06, no. 51 2478/1, p. 35).", "98. If the request is held to be well-founded a one-year residence permit is issued to the person concerned. The residence permit must be renewed each year. Five years after the lodging of the request, the person concerned acquires permanent residence status and is issued with a residence permit of unlimited duration.", "99. Under paragraph 4 of section 9 ter of the Aliens Act, aliens are excluded from the scope of that section where there are substantial grounds for believing that they have committed any of the acts referred to in section 55/4 of the Act, which provides:", "“An alien shall be excluded from the scope of subsidiary protection where there are substantial reasons for believing:", "(a) that he or she has committed a crime against peace, a war crime or a crime against humanity as defined in the international instruments on the punishment of such crimes;", "(b) that he or she has committed acts contrary to the purposes and principles of the United Nations as set forth in the Preamble and in Articles 1 and 2 of the Charter of the United Nations;", "(c) that he or she has committed a serious crime.", "The first sub-paragraph shall apply to persons who instigate the aforementioned crimes or acts or participate in them in any other manner.”", "100. It emerges from the drafting history of section 9 ter that a seriously ill alien who is excluded from the scope of that section on one of the grounds referred to in section 55/4 will not be removed if his or her state of health is so serious that removal would constitute a breach of Article 3 of the Convention (explanatory report, cited above, p. 36).", "(b) Recent developments in Belgian case-law", "101. The case-law concerning the removal of seriously ill aliens has evolved recently. This case-law concerns the application of section 9 ter, paragraph 1, to aliens who have not been excluded a priori from the scope of that provision. The change in the case-law occurred in response to a change in the practice of the Aliens Office following the introduction by an Act of 8 January 2012 of an admissibility filtering mechanism for “section 9 ter requests”, consisting in confining the application of section 9 ter to situations falling within the ambit of Article 3 of the Convention as interpreted by the Court in its judgment in N. v. the United Kingdom (cited above).", "102. The Aliens Appeals Board responded by observing that section 9 ter of the Act was not limited to systematically requiring the existence of a risk “to the life” of the applicant, since it made provision, in addition to that risk, for two other situations, namely those entailing a real risk to physical well ‑ being and those entailing a real risk of inhuman or degrading treatment (Aliens Appeals Board, judgments nos. 92.258, 92.308 and 92.309 of 27 November 2012). It further held that an immediate threat to life was likewise not an absolute precondition in the Court ’ s case-law for a violation of Article 3, given that other “exceptional” humanitarian circumstances within the meaning of the Court ’ s judgment in D. v. the United Kingdom (cited above) could act as a bar to removal (Aliens Appeals Board, judgments no. 92.393 of 29 November 2012 and no. 93.227 of 10 December 2012). Accordingly, all the circumstances of the case had to be taken into consideration.", "103. On 19 June 2013 a Dutch-speaking Division of the Conseil d ’ État echoed this interpretation of section 9 ter, paragraph 1. It held that, irrespective of the scope of application of Article 3 of the Convention, section 9 ter was clear and applied to situations going beyond a direct threat to the life of the applicant or the existence of a critical condition ( Conseil d ’ État, judgment no. 223.961 of 19 June 2013). In judgments dated 28 November 2013 the same Division expressly found that the Aliens Appeals Board had erred in finding that Article 3 of the Convention could apply to situations other than those involving a serious, critical or terminal condition. However, that error did not mean that the Board ’ s interpretation of section 9 ter, paragraph 1, had been incorrect, as the provision in question went further than Article 3 of the Convention and covered a real risk of inhuman or degrading treatment on account of the absence of appropriate treatment in the country of origin ( Conseil d ’ État, judgments nos. 225.632 and 225.633 of 28 November 2013). On 29 January 2014 the same Division specified that in so far as section 9 ter, paragraph 1, referred to a real risk to life or physical well-being, it corresponded to Article 3 of the Convention ( Conseil d ’ État, judgment no. 226.251 of 29 January 2014).", "104. In the meantime, on 19 November 2013, a French-speaking Division of the Conseil d ’ État had adopted a completely different approach. According to that Division, the legislature had clearly sought to confine the benefit of section 9 ter to aliens who were so “seriously ill” that their removal would amount to a violation of Article 3 of the Convention, and to ensure that the assessment in question was carried out in accordance with the Court ’ s case-law as established in the case of N. v. the United Kingdom, cited above. The fact that section 9 ter covered three specific situations did not mean that its scope of application differed from that of Article 3. The three categories of illness concerned, where they attained a minimum level of severity – which had to be high – were apt to satisfy the requirements of Article 3. The Conseil d ’ État went on to quash the Aliens Appeals Board ’ s judgments of 27 November 2012 (see paragraph 102 above) on the grounds that they had unduly extended the scope of section 9 ter ( Conseil d ’ État, judgments nos. 225.522 and 225.523 of 19 November 2013).", "105. The divergence in the case-law of the Conseil d ’ État was resolved on 16 October 2014 when the French-speaking Division adopted the same interpretation as the Dutch-speaking Division. Referring to the Opinion of Advocate General Bot of the Court of Justice of the European Union (“the CJEU”) in the case of M ’ Bodj (C-542/13, see paragraph 121 below), which was pending at the time, to the effect that section 9 ter of the Aliens Act afforded protection going beyond the subsidiary protection provided for by Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”), the Division proposed an “autonomous” interpretation of section 9 ter, paragraph 1, in so far as that provision concerned situations of inhuman or degrading treatment on account of the lack of appropriate treatment in the receiving country ( Conseil d ’ État, judgment no. 228.778 of 16 October 2014).", "106. Following the clarification of the case-law of the Conseil d ’ État, the Aliens Appeals Board harmonised its own case-law in five judgments given by the full Board on 12 December 2014 (Aliens Appeals Board, judgments nos. 135.035, 135.037, 135.038, 135.039 and 135.041 of 12 December 2014).", "107. This “autonomous” interpretation of section 9 ter represents the current state of Belgian positive law. The above-mentioned judgments of the Aliens Appeals Board (see paragraph 106 above) contemplate two scenarios in which the issuing of a residence permit may be justified because of illness. The first scenario concerns aliens who are currently suffering from a life ‑ threatening illness or a condition posing a current threat to their physical integrity; the alleged risk to life or physical integrity must be imminent and the alien concerned must be unfit to travel as a result. The second concerns aliens who risk being subjected to inhuman and degrading treatment if no appropriate treatment for their illness or condition exists in the receiving country. In this case, although it does not pose an imminent threat to life, the illness or condition in question must nevertheless attain a certain degree of seriousness.", "B. Removal measures and re-entry bans for breaches of public order", "108. The removal of aliens from Belgium is governed primarily by the provisions of section 7 of the Aliens Act, which at the material time read as follows:", "“Without prejudice to more favourable provisions contained in an international treaty, the Minister or his or her representative may order an alien who is not authorised or has not been given permission to remain for more than three months or to settle in the Kingdom to leave the country by a set date:", "(1) if the person concerned is resident in the Kingdom without being in possession of the documents required under section 2;", "(2) if he or she has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded;", "(3) if his or her conduct is deemed to pose a potential threat to public order or national security; ...", "In such cases the Minister or his or her representative may remove the person concerned immediately if they deem it necessary.", "The alien concerned may be detained for this purpose for the time strictly necessary to enforce the measure. The length of such detention may not exceed two months.", "Nevertheless, the Minister or his or her representative may extend the period of detention by two months where the steps necessary to remove the alien have been taken within seven working days of his or her placement in detention and have been prosecuted with all due diligence, and where the alien ’ s physical removal within a reasonable period remains possible.", "After one extension has been granted, the decision referred to in the preceding paragraph may be taken only by the Minister.", "After five months in detention the alien concerned must be released.", "Where the protection of public order or national security so requires, the period of detention may be extended by successive one-month periods after the time-limit referred to in the preceding paragraph has expired; however, the total period of detention may not on this account exceed eight months.”", "109. According to the case-law of the Conseil d ’ État, the examination of the medical situation of an alien facing removal whose request for leave to remain has been rejected should be carried out, as applicable, at the time of enforcement of the removal measure rather than at the time of its issuance ( Conseil d ’ État, judgment no. 11.427 of 9 July 2015).", "110. The provisions of the Aliens Act relating to the removal of aliens on account of their personal conduct, and to re-entry bans, read as follows:", "Section 20", "“Without prejudice to more favourable provisions laid down in an international treaty or to section 21, the Minister may deport aliens who are not settled in the Kingdom if they have breached public order or national security or have failed to comply with the statutory conditions of their residence. Where, under the terms of an international treaty, no such measure may be taken until the alien concerned has been questioned, the opinion of the Aliens Advisory Board must be sought before a deportation order is issued. The other cases in which a deportation order may be issued only after consultation of the Aliens Advisory Board shall be determined by royal decree approved by the Cabinet.", "Without prejudice to section 21, paragraphs 1 and 2, aliens who are settled in the Kingdom or have long-term residence status and who have committed a serious breach of public order or national security may be expelled by the Crown, after consultation of the Aliens Advisory Board. The expulsion order must be discussed by the Cabinet if the measure is based on the individual ’ s political activities.", "Deportation and expulsion orders must be based exclusively on the personal conduct of the alien concerned. The fact that he or she has made lawful use of the freedom to manifest opinions or the freedom of peaceful assembly or of association cannot serve as grounds for such an order.”", "Section 74/11", "“1. The duration of the re-entry ban shall be determined in the light of all the particular circumstances of each case.", "The removal order shall be accompanied by a re-entry ban of no more than three years ’ duration, in the following cases:", "(1) where no time has been allowed for voluntary departure; or", "(2) where a previous removal order has not been enforced.", "The maximum three-year period referred to in the second sub-paragraph shall be increased to a maximum of five years where the third-country national has used fraud or other unlawful means in order to obtain or preserve his or her right of residence.", "The removal order may be accompanied by a re-entry ban of more than five years where the third-country national presents a serious threat to public order or national security.", "2. The Minister or his or her representative shall refrain from imposing a re-entry ban where the residence of a third-country national is terminated in accordance with section 61/3, third paragraph, or 61/4, second paragraph, without prejudice to the second sub-paragraph of paragraph 1(2), provided that the person concerned does not pose a threat to public order or national security.", "The Minister or his or her representative may decide not to impose a re-entry ban in individual cases on humanitarian grounds.", "3. The re-entry ban shall enter into force on the date of notification. It must not infringe the right to international protection as defined in sections 9 ter, 48/3 and 48/4.”", "C. Appeals against the decisions of the administrative authorities", "111. The Aliens Appeals Board is an administrative court established by the Act of 15 September 2006 reforming the Conseil d ’ État and setting up an Aliens Appeals Board. The duties, jurisdiction, composition and functioning of the Aliens Appeals Board are governed by the provisions of Part I bis of the Aliens Act as inserted by the aforementioned Act of 15 September 2006. The procedure before the Aliens Appeals Board is laid down by a royal decree of 21 December 2006.", "112. The jurisdiction of the Aliens Appeals Board is twofold. Firstly, in proceedings concerning decisions of the Commissioner General for Refugees and Stateless Persons relating to the granting of refugee status and the various categories of subsidiary protection, the Board has full jurisdiction and the appeal has automatic suspensive effect. The Aliens Appeals Board may admit new evidence and all the issues of fact and law are transferred to it. In such cases it may uphold, set aside or amend the decision. Secondly, the decisions of the Aliens Office concerning residence and removal may be appealed against by way of an application to set aside for failure to comply with essential procedural requirements or with statutory formalities required on pain of nullity, or on the grounds that the Aliens Office exceeded or abused its powers.", "113. The application to set aside does not automatically suspend enforcement of the measure complained of. However, the Aliens Act provides that it may be accompanied by a request for a stay of execution of the measure, either under the extremely urgent procedure, which itself automatically suspends enforcement of the measure, or under the “ordinary” procedure.", "114. At the time of the events in the present case, requests for a stay of execution were governed by the provisions of section 39/82 of the Aliens Act, which provided as follows:", "“1. Where a decision by an administrative authority is subject to an application to set aside under section 39/2, the Board shall have sole jurisdiction to order a stay of execution.", "A stay of execution shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned decision of the President of the division hearing the application or the aliens appeals judge whom he or she designates for the purpose.", "In cases of extreme urgency a stay of execution may be ordered on an interim basis without evidence having been heard from some or any of the parties.", "Applicants who request a stay of execution must opt for either the extremely urgent procedure or the ordinary procedure. They may not, simultaneously or consecutively, either seek a second time to have the third sub-paragraph applied or re-apply for a stay of execution in the application referred to in paragraph 3, on pain of inadmissibility.", "By way of derogation from the fourth sub-paragraph and without prejudice to paragraph 3, the rejection of a request for a stay of execution under the extremely urgent procedure shall not prevent the applicant from subsequently requesting a stay of execution under the ordinary procedure, where the application under the extremely urgent procedure was rejected on the grounds that the extreme urgency of the situation was not sufficiently established.", "2. A stay of execution may be ordered only if the grounds relied on are sufficiently serious to warrant setting aside the impugned decision, and if immediate enforcement of the decision is liable to cause serious, virtually irreparable damage.", "Judgments ordering a stay of execution may be recorded or amended at the request of the parties.", "3. Except in cases of extreme urgency the request for a stay of execution and the application to set aside must be submitted in a single document.", "The title of the application should specify whether an application to set aside is being lodged or a request for a stay of execution together with an application to set aside. Failure to comply with this formality will result in the application being treated solely as an application to set aside.", "Once the application to set aside has been lodged any subsequent request for a stay of execution shall be inadmissible, without prejudice to the possibility for the applicant to lodge, in the manner referred to above, a fresh application to set aside accompanied by a request for a stay of execution, if the time-limit for appeals has not expired.", "The application shall include a statement of the grounds and facts which, in the applicant ’ s view, justify a stay of execution or an order for interim measures, as applicable.", "Any order for a stay of execution or other interim measures issued prior to the lodging of the application to set aside the decision shall be immediately lifted by the Division President who issued it or by the aliens appeals judge designated by him or her, if the judge observes that no application to set aside setting out the grounds for such measures has been lodged within the time-limit specified by the procedural regulations.", "4. The Division President or the aliens appeals judge designated by him or her shall rule on the request for a stay of execution within thirty days. If a stay of execution is ordered a ruling shall be given on the application to set aside within four months of delivery of the judicial decision.", "If the alien in question is the subject of a removal order or an order refusing admission which is to be enforced imminently, and has not yet lodged a request for a stay of execution, he or she may request a stay of execution of the decision under the extremely urgent procedure. If he or she lodged a request under the extremely urgent procedure in accordance with the present provision no later than five days, but no earlier than three working days, following notification of the decision, the request shall be examined within forty-eight hours of its receipt by the Board. If the Division President or the aliens appeals judge hearing the case does not give a decision within that time, the First President or the President shall be informed and shall take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. He or she may also examine the case and take the decision. If no stay of execution is granted the measure shall again become enforceable.", "...”", "115. If the person concerned opted for the “ordinary” procedure in requesting a stay of execution, he or she could apply for interim measures during the proceedings, as a matter of extreme urgency if necessary, in accordance with section 39/84 of the Act.", "116. For a request for a stay of execution or for interim measures to be granted as a matter of extreme urgency, the enforcement of the removal measure had to be imminent (section 39/82, paragraph 4, second sub ‑ paragraph, and section 39/85, first sub-paragraph, of the Aliens Act). The Aliens Appeals Board took the view that, for the danger to be imminent, the alien in question had to be subject to a coercive measure aimed at securing his or her departure from the country, that is to say, to an order for his or her detention in a closed facility with a view to removal (see, among many other authorities, judgment no. 456 of 27 June 2007 and judgment no. 7512 of 20 February 2008).", "117. The Aliens Act was amended by the Act of 10 April 2014 laying down miscellaneous provisions concerning the procedure before the Aliens Appeals Board and the Conseil d ’ État. In particular, this Act reforms the procedure governing requests for a stay of execution under the extremely urgent procedure in order to take account of the Court ’ s judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011) and the subsequent rulings of the Aliens Appeals Board (see, in particular, the seven judgments of the full Board of 17 February 2011 (nos. 56.201 to 56.205, 56.207 and 56.208) and of the Constitutional Court ( judgment no. 1/2014 of 16 January 2014 setting aside part of the Act of 15 March 2012 amending the Aliens Act, which introduced a fast-track procedure for asylum seekers from “safe” third countries).", "118. Under the new provisions of sections 39/82 and 39/85, a request for a stay of execution under the extremely urgent procedure must be submitted within ten days, or five days if the impugned removal order is not the first issued against the person concerned. The criteria for determining extreme urgency remain unchanged. Removal must be imminent, a situation which applies first and foremost to persons in detention. However, the Act does not rule out the possibility that other situations may justify recourse to the extremely urgent procedure. Under the reformed provisions a risk of serious and irreparable harm is presumed where the alleged violation concerns rights from which no derogation is possible, such as those provided for by Articles 2, 3 and 4 of the Convention.", "119. An administrative appeal on points of law may be lodged with the Conseil d ’ État against a judgment of the Aliens Appeals Board dismissing an application to set aside. The appeal does not have suspensive effect.", "III. EUROPEAN UNION LAW", "120. The issue of the threshold of severity which an illness must attain in order to justify the granting of a residence permit on medical grounds was recently raised before the CJEU. In the context of two cases – Mohamed M ’ Bodj v Belgian State (18 December 2014, Case C ‑ 542/13) and Centre public d ’ action sociale d ’ Ottignies-Louvain-La-Neuve v Moussa Abdida (18 December 2014, Case C-562/13) – the CJEU was called upon to address the relationship between section 9 ter of the Aliens Act and European Union (“EU”) law.", "121. In M ’ Bodj (paragraphs 39-47), the CJEU held that the granting of leave to reside on medical grounds to persons who did not satisfy the essential requirements making them eligible for subsidiary protection under the Qualification Directive could not be regarded as a more favourable standard for the purposes of Article 3 of the Directive in the context of such subsidiary protection, and thus fell outside the scope of application of the Directive. Even taking into account the case-law established in N. v. the United Kingdom, according to which, in very exceptional cases concerning the expulsion of a seriously ill alien, humanitarian grounds could be invoked in order to trigger the protection of Article 3 of the Convention, the risk of deterioration in the health of a third-country national suffering from a serious illness as a result of the absence of appropriate treatment in the receiving country was not sufficient, according to the CJEU, to warrant that person being granted subsidiary protection unless the harm took the form of conduct on the part of a State or non-State third party.", "122. In the case of Abdida (paragraphs 33 and 38-63), the CJEU held that while leave to reside on medical grounds did not come within the scope of the Qualification Directive, decisions refusing such leave were covered by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (the “Return Directive”). As a return decision, a decision refusing leave to reside on medical grounds was subject to observance of the safeguards provided for by the Return Directive and by the Charter of Fundamental Rights of the EU. Article 19 § 2 of the Charter stated that no one could be removed to a State where there was a serious risk that he or she would be subjected to torture or other inhuman or degrading treatment or punishment. Bearing in mind that under Article 52 § 3 of the Charter, the rights enshrined therein had, as a minimum, the same meaning and scope as the equivalent rights guaranteed by the Convention, the CJEU inferred from the case-law established in N. v. the United Kingdom that the decision to remove an alien suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness were inferior to those available in the returning State might raise an issue under Article 3 of the Convention in very exceptional cases, where the humanitarian grounds against removal were compelling. Those very exceptional cases were characterised, in the CJEU ’ s view, by the seriousness and the irreparable nature of the harm that might be caused by the removal of a third-country national to a country in which there was a serious risk that he or she would be subjected to inhuman or degrading treatment. The CJEU further held that remedies in respect of a decision refusing leave to reside on medical grounds must have suspensive effect, in accordance with the Strasbourg Court ’ s case-law. This implied that provision had to be made for the applicant ’ s basic needs to be met pending a ruling on his or her appeal in accordance with the Return Directive.", "IV. OTHER RELEVANT MATERIALS", "123. Basing its findings, inter alia, on the information referred to in the Chamber judgment (paragraphs 90-92), the European Committee of Social Rights assessed the conformity of the Georgian health-care system with Article 11 § 1 of the European Social Charter ( Right to protection of health, Removal of the causes of ill-health) and adopted the following conclusions (Conclusions 2015, Georgia, Article 11 § 1):", "“...", "The Committee takes note of the information submitted by Georgia in response to the conclusion that it had not been established that there was a public health system providing universal coverage (Conclusions 2013, Georgia).", "The Committee recalls that the health care system must be accessible to everyone. The right of access to care requires inter alia that the cost of health care should be borne, at least in part, by the community as a whole (Conclusions I (1969), Statement of Interpretation on Article 11) and the cost of health care must not represent an excessively heavy burden for the individual. Out-of-pocket payments should not be the main source of funding of the health system (Conclusions 2013, Georgia).", "The report states that on 28 February 2013 a Universal Health Care Programme was launched for persons without medical insurance. The first phase of the programme ensured citizens with a basic medical package, including primary health care and emergency hospitalisation. Since 1 July 2013 the programme has been expanded to include more services of primary health care and emergency hospitalisation, emergency outpatient care, planned surgeries, treatment of oncological diseases and child delivery. According to recent data (April 2014), all citizens of Georgia are now provided with basic healthcare, approximately 3.4 million people in the framework of the Universal Health Care Programme, 560,000 people are beneficiaries of the State Health Insurance Programme and about 546,000 people have a private or corporate insurance.", "The Committee notes that the Government has declared health care as a priority field, resulting in funding for state health care programmes almost doubling: from 365 million GEL in 2012 (€ 139 million) to 634 million GEL in 2013 (€ 241 million). State spending as a share of GDP has increased from 1.7% to 2.7% and as a share of the state budget from 5% to 9%.", "However, the Government acknowledges that despite improvements the cost of medication remains high amounting to 35% of state expenditure on health care. The report does not provide information on out-of-pocket payments as a share of total spending on health care, but according to WHO data it was still between 60% and 70% in 2011 (compared to about 16% on average for EU-27). Very limited coverage of medication costs is now provided under the Universal Health Care Programme, for example for emergency care, chemotherapy and radiotherapy, but the general lack of coverage of medication costs is a major point of dissatisfaction among beneficiaries of the programme according to a recent evaluation (Universal Healthcare (UHC) Program Evaluation by the USAID Health System Strengthening Project, April 2014). The Committee notes the examples provided by the Government of coverage of certain medication costs under the State Health Insurance Programme.", "The report states that as a result of deregulation measures the pharmaceutical market has become free and competitive, however no evidence is provided to show that the price of medication has become generally more accessible, especially for vulnerable groups and those with chronic conditions.", "While the Committee considers that the Universal Health Care Programme is a positive step forward and that the role of out-of-pocket payments as a source of funding of the health system may have been reduced somewhat, it still considers that the high proportion of out-of-pocket payments for health care, and in particular the high medication costs, represent too high a burden for the individual effectively being an obstacle to universal access to health care. The situation is therefore not in conformity with the Charter.", "Conclusion", "The Committee concludes that the situation in Georgia is not in conformity with Article 11§1 of the Charter on the ground that out-of-pocket payments in general and medication costs in particular represent too high a burden for the individual effectively being an obstacle to universal access to health care.”", "THE LAW", "I. PRELIMINARY ISSUES", "124. Following the applicant ’ s death, his relatives expressed the wish to pursue the proceedings (see paragraph 1 above).", "125. The respondent Government did not submit any observations on this issue.", "126. The Court normally permits the next-of-kin to pursue an application, provided he or she has a legitimate interest, where the original applicant has died after lodging the application with the Court (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016 ). In the present case, the Court takes note of the wish expressed by the applicant ’ s family (see paragraph 1, above) to pursue the proceedings. Having regard to its conclusion in paragraph 133 below, however, it considers that it is unnecessary to determine whether the family have a legitimate interest in that regard.", "127. The Court must nevertheless ascertain whether, in view of the applicant ’ s death and the nature of the alleged violations, the application should be struck out of the list of cases or whether, on the contrary, there are special circumstances requiring its continued examination pursuant to Article 37 § 1 in fine.", "128. In that connection, Article 37 § 1 of the Convention provides:", "“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "129. The Court reiterates that the human rights cases before it generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant ’ s death should be continued (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003 ‑ IX, and Malhous (dec.), cited above).", "130. The Court has repeatedly stated that its judgments serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the States ’ observance of the engagements undertaken by them. Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States (see Karner, cited above, § 26).", "131. The Court notes that the present case was referred to the Grand Chamber on 20 April 2015 in accordance with Article 43 of the Convention, which provides that cases can be referred if they raise “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”.", "132. The Court observes that there are important issues at stake in the present case, notably concerning the expulsion of aliens who are seriously ill. Thus, the impact of this case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber (compare F.G. v. Sweden [GC], no. 43611/11, § 82, ECHR 2016).", "133. Having regard to the foregoing, the Court finds that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention.", "II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "134. The applicant alleged that substantial grounds had been shown for believing that if he had been expelled to Georgia he would have faced a real risk there of inhuman and degrading treatment contrary to Article 3 of the Convention and of a premature death in breach of Article 2. Those Articles provide:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The Chamber judgment", "135. The Chamber began by examining whether the applicant ’ s removal to Georgia would breach Article 3 of the Convention (see paragraphs 117 ‑ 26 of the Chamber judgment).", "136. It observed that, according to the case-law established in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008 ), Article 3 protected aliens suffering from an illness against removal only in very exceptional cases, where the humanitarian grounds against the removal were compelling. The fact that the individual ’ s circumstances, including his life expectancy, would be significantly reduced if he were to be removed did not constitute such grounds. In the instant case, the illnesses from which the applicant suffered were all stable and under control as a result of the treatment received in Belgium; he was fit to travel and his life was not in imminent danger.", "137. The Chamber noted that medication to treat the applicant ’ s illnesses existed in Georgia. It acknowledged that its accessibility was not guaranteed and that, owing to a shortage of resources, not all the persons concerned received all the medicines and treatment they required. Nevertheless, in view of the fact that the applicant would not be left wholly without resources if he were to return, the fact that the Belgian authorities had been providing him with medical assistance while the case was pending before the Court and the fact that Georgia was a Contracting Party to the Convention, the Court held that, as matters stood, there were no exceptional circumstances precluding the applicant ’ s removal.", "138. The Chamber considered that the examination of the applicant ’ s complaints from the standpoint of Article 2 did not lead to a different conclusion (see paragraph 127 of the Chamber judgment).", "B. The parties ’ observations before the Grand Chamber", "1. The applicant", "139. The applicant submitted that, in keeping with the Court ’ s case-law as established in the judgments in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011) and Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)), the alleged violation of Article 3 of the Convention had to be examined in concreto and in the light of all the facts of the case, taking into consideration the accessibility of treatment in the country of destination and the particular vulnerability of the person concerned.", "140. The applicant ’ s particular vulnerability resulted primarily from his state of health. His leukaemia had reached the most serious stage, Binet stage C. He had already undergone numerous courses of chemotherapy and the illness put him at risk of severe complications which called for regular monitoring in a specialised setting. He was being treated with a drug – Ibrutinib – which was very expensive, costing around EUR 6,000 per month, and the dosage of which had to be continually adjusted to his treatment for hepatitis C. The latter had recently become active again following a relapse in 2012 and 2013 and also required very expensive treatment costing EUR 700 per day. As soon as his overall condition permitted, it was planned to treat him by means of a donor transplant, at an estimated cost of EUR 150,000. This was his only hope of a cure, and the search was under way for a compatible unrelated donor. The applicant ’ s condition was further weakened by the repeated secondary infections caused by his chronic obstructive pulmonary disease, which had become severe and was not being monitored. In addition, the applicant had had three fingers amputated and his left arm was paralysed.", "141. Besides the fact that, according to his doctor, neither Ibrutinib nor a donor transplant would have been available in Georgia, the applicant had had no guarantee that he would have had access in practice to life-saving treatment, given the proven shortcomings of the Georgian health-care system. In 2008 the Law on compulsory health insurance had been replaced by a two-tier system. People who could afford it were encouraged to take out private insurance and to avail themselves of the care provided by the hospitals that had gradually been privatised. Meanwhile, the least well-off (estimated at 20% of the population) were eligible in principle for free basic health care under a special universal insurance scheme. However, in practice, owing to an ineffective system for determining eligibility, the health-care costs of around half of the least well-off were still not covered. In addition, the provision of care and infrastructure to the least well-off was very limited.", "142. Moreover, in the applicant ’ s submission, the burden of proving the existence of real and practical access to health care in Georgia lay with the Belgian authorities, who had greater investigative resources.", "143. More specifically, it was for the Belgian authorities, in the context of the request for regularisation based on section 9 ter of the Aliens Act, to assess the risk of a breach of Article 3 of the Convention in the light of the information available to them on the applicant ’ s personal, family and medical situation and the shortcomings of the Georgian health-care system, and not to deprive the applicant as a matter of principle of the only possibility open to him of asserting a fundamental right.", "144. A fortiori, even assuming that the Belgian State had examined the request for leave to remain on the merits, it could not simply have presumed that the applicant would be treated in accordance with the requirements of the Convention. As made clear by the judgment in M.S.S. v. Belgium and Greece, the fact that Georgia was a Contracting Party to the Convention did not mean that it could be presumed ipso facto that Georgia could not be held responsible for breaches of the Convention. Acceptance of the treaties guaranteeing respect for fundamental rights was not sufficient to afford adequate protection against the risk of ill-treatment where, as in the present case, reliable sources reported practices on the part of the authorities, or tolerated by them, that were manifestly in breach of the Convention.", "145. On the contrary, it was for the Belgian authorities to make enquiries and to satisfy themselves in advance that the Georgian authorities could actually guarantee in practical terms that the applicant would receive the health care he needed in order to survive and that his illness would be treated in a manner compatible with human dignity. Access to medical care must not be theoretical but must be real and guaranteed.", "146. Since the Belgian State had failed to contribute, at the time of the refusal of the applicant ’ s request for leave to remain, to verifying the accessibility in Georgia, in real and practical terms, of the treatment which the applicant needed, and in the absence of guarantees in that regard, its responsibility under Article 3 of the Convention would have been engaged if it had proceeded with the applicant ’ s removal to Georgia. If removed he would have been exposed to a risk of inhuman or degrading treatment and an earlier death owing to the withdrawal of the intensive and specialised treatment he had been receiving in Belgium, and to the end of any hope of receiving a donor transplant. In addition, there was the impact which his removal would have had on his family. All of these circumstances could be regarded by the Court as “exceptional” within the meaning of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III) and N. v. the United Kingdom (cited above).", "147. The applicant further submitted that the fact that his irregular residence status had continued for over seven years after he had requested leave to remain on medical grounds, without his request having been examined on the merits, had played a major part in placing him in a precarious and vulnerable situation.", "148. In sum, the applicant had been in greater need of protection owing to his particular vulnerability linked to his state of health, the stakes in terms of his life and physical well-being, his emotional and financial dependency and the existence of his family ties in Belgium. The Belgian State ’ s responsibility under Article 3 of the Convention stemmed from the fact that it was proceeding with the applicant ’ s removal without taking these factors into account, thereby demonstrating a lack of respect for his dignity and placing him at serious risk, in the event of his return to Georgia, of a severe and rapid deterioration in his state of health leading to his swift and certain death.", "149. The applicant requested the Court to go beyond its findings in N. v. the United Kingdom and to define, in the light of these considerations, a realistic threshold of severity that was no longer confined to securing a “right to die with dignity”. He relied in that connection on the recent developments in the case-law of the Belgian courts, which had distanced themselves from the findings in N. v. the United Kingdom and now afforded more extensive protection than that provided for under Article 3 of the Convention (see paragraphs 101 et seq. above).", "2. The Belgian Government", "150. The Government submitted that, although it was acknowledged in the Court ’ s case-law that the responsibility of a Contracting Party could be engaged under Article 3 on account of the expulsion of an alien and his exposure to a risk of a breach of his economic and social rights, it nevertheless had to be taken into consideration that, where the person concerned suffered from an illness, neither the returning State nor the receiving State could be held directly responsible for the shortcomings of the health-care system and the repercussions on the health of the individual concerned. The case-law demonstrated that in order for the threshold of severity required by Article 3 to be attained in such cases the extreme nature of the applicant ’ s living conditions or his or her extreme vulnerability had to be established. The circumstances contrary to human dignity had to be exceptional to such a degree that the person concerned, owing to his or her critical condition prior to removal, would inevitably be placed in a situation of intense suffering solely on account of the removal procedure and the complete absence of care and treatment in the receiving country. Human rights were not synonymous with compelling humanitarian considerations and a general obligation to provide social welfare assistance could not be inferred from Article 3 even in the name of human dignity.", "151. In view of this case-law it could not be concluded that the criteria for engaging the responsibility of the Belgian State had been met in the present case.", "152. With reference, firstly, to developments in the applicant ’ s state of health, the Government argued that while his overall condition had deteriorated since the time of the Chamber judgment, mainly as a result of collateral diseases, and his condition was still life-threatening, the illnesses from which the applicant suffered had been kept under control for a long time by the medicines being administered to him in Belgium. According to the report of the Aliens Office ’ s medical officer of 23 June 2015, the applicant ’ s condition could not be regarded as critical, he was fit to travel, his illnesses were not directly life-threatening and none of his vital organs was in a condition that placed his life in immediate danger.", "153. Furthermore, since the applicant had failed to provide more detailed information concerning the content of the study in the context of which his leukaemia was being treated, it was difficult to establish any objective basis for his general practitioner ’ s assertion that the only option at this stage had been the administration of Ibrutinib followed by a donor transplant and that in the absence of that treatment the applicant ’ s life expectancy would have been three months. Other factors entered into the equation, such as the increase in life expectancy as a result of the medication, the feasibility of the operation, which itself depended on how the applicant ’ s general condition evolved, and the low success rate of the operation. In sum, this was a private initiative on the part of the applicant ’ s general practitioner and appeared to be a hypothetical, strategic choice linked to research considerations. It was questionable whether there was a need to ensure its continuation. As to the applicant ’ s other illnesses, it had not been possible to assess their state of advancement on the basis of the medical information provided.", "154. The Government submitted that, in view of this lack of clarity and of the complex and risky nature of the transplant procedure, consideration might have been given, on the basis of the information in the medical file, to abandoning the idea of a donor transplant and instead continuing to treat the applicant with Ibrutinib in Georgia under the supervision of a haematology department.", "155. The next issue was whether there had been reason to believe that, following his removal, the applicant would have faced a serious risk of inhuman and degrading treatment. The Government argued that the burden of proof in that regard depended on whether the threshold of severity defined in D. v. the United Kingdom and N. v. the United Kingdom (both cited above) was changed. If the current case-law was maintained, the disparity in the level of care between the returning State and the receiving State was relevant only if the person ’ s condition was critical at the time of his or her expulsion. If, on the other hand, it was now a question of providing evidence, not of the conditions in which the person concerned would die but of the conditions in which he or she should be kept alive, the burden of proof shifted to the living conditions in the receiving State. This shift raised a number of issues.", "156. One of the factors to be taken into consideration was the exact personal situation of the individual concerned and in particular the ties he or she had maintained with his or her country of origin and the resources available to him or her in order to continue treatment. The applicant had not provided any detailed information on that subject. Another factor was the situation of the social welfare system in the receiving State. The assessment of that situation was, by definition, complex and general and would not allow a specific treatment to be identified. Furthermore, if the sole criterion was the prospect of survival, it had to be ascertained at what stage in the applicant ’ s treatment his expulsion should be deemed contrary to Article 3. Bearing in mind the evolving and multi-faceted nature of medical techniques, this decision was largely arbitrary. If, as the applicant had suggested, he should have been considered vulnerable and thus recognised as having victim status on account of the deterioration of his state of health, the question then arose as to what differentiated him from other Georgian nationals suffering from illness who were reliant on the Georgian health ‑ care system. It would be difficult to argue that the difference lay in his unlawful residence and his medical treatment in Belgium. Instead of producing clear answers, these questions gave rise to general assumptions based on speculation which were insufficient to establish the State ’ s international responsibility beyond any reasonable doubt.", "157. In the Government ’ s view, even if this speculative aspect could have been overcome by obtaining assurances from the receiving State, as mentioned by the Court in Tatar v. Switzerland (no. 65692/12, 14 April 2015), such assurances should be deemed to have existed in the present case and to have been sufficient. The applicant had been medically fit to travel and the local authorities would have been informed of the specific nature of his condition or would have received a list of the medication needed. No more specific guarantees had been required in the absence of any indication that the Georgian authorities would have treated the applicant less favourably than the rest of the Georgian population or that he would have been unable to obtain medical treatment that took account of the specific features of his illness. In that connection, it might have been possible to continue to treat the applicant with Ibrutinib by having his medication sent through the post under the supervision of his doctor and with the assistance of doctors in Georgia. The Government added that if a donor transplant had proved possible they would not have taken any steps to prevent it or to secure the applicant ’ s removal while he was in hospital.", "158. Lastly, account had to be taken of the fact that the applicant would have been removed to Georgia, a Contracting Party to the Convention, and that if he had been shown to be particularly vulnerable, Belgium ’ s responsibility could have been engaged only if it had been established that the Georgian State would manifestly fail to comply with its Convention obligations, for instance if it had been shown that the applicant would be entirely dependent on public assistance and would be in a state of deprivation contrary to human dignity. In the absence of any indication to that effect it should have been presumed that the Georgian authorities would comply with the requirements of the Convention. Should that have proved not to be the case, it would have been up to the applicant to apply to the Court under Article 34 of the Convention.", "C. Observations of the third-party interveners", "1. The Georgian Government", "159. The Georgian Government submitted that, since 2012, they had implemented an extensive programme of universal medical cover which had resulted to date in 90% of the population being covered in terms of primary health care. If the applicant had returned to Georgia he would have had access to that universal cover in the same way as the local residents.", "160. Furthermore, the Georgian health-care system could have provided appropriate treatment for the illnesses from which the applicant had suffered, in terms of both medical infrastructure and health-care personnel. The health care provided conformed to international standards and was approved by the domestic rules.", "161. With regard to the treatment of tuberculosis, a State tuberculosis management programme had been approved by Decree no. 650 of 2 December 2014, which provided for free TB examinations and medication for Georgian citizens, stateless persons resident in Georgia, prisoners and any person in the country identified as a TB carrier. New experimental treatments for tuberculosis had been introduced in Georgia over the past several years and were available on the market in sufficient quantities. The applicant would be able to take advantage of them.", "162. With regard to leukaemia, the Georgian Government submitted that the programme of universal medical cover covered diagnosis, treatment (including chemotherapy and radiotherapy), medical examinations and medication for persons living below the poverty threshold who were suffering from oncological diseases. Between 2013 and 2015, 859 patients with chronic lymphocytic leukaemia had received specialised chemotherapy. This was administered in five clinics in Georgia which were equipped with all modern medical facilities.", "163. The main improvements made since the information provided at the Chamber stage concerned hepatitis C. Whereas, previously, hospital treatment for patients presenting with a significant viral load and/or cirrhosis had only been covered at 50% of an amount fixed by the Government, and medicines had not been reimbursed at all, since 20 April 2015 socially vulnerable families were entitled to 70% of the diagnostic costs and other patients to 30% of the costs. Under a special programme for residents of the city of Tbilisi, 100% cover was provided. Furthermore, access to medicines was free of charge “for all patients involved in the treatment protocol on the basis of a decision by a special commission”. Finally, a pharmaceutical company had supplied Georgia with doses of a new antiretroviral treatment involving the drugs Solvadi and Harvoni, which could have been administered to the applicant if he had returned.", "164. Lastly, with regard to chronic obstructive pulmonary disease, the Georgian Government stated that all modern forms of basic treatment were available in Georgia. There were also several hospitals in Tbilisi which treated this illness. Any surgery that might be needed would be covered by the programme of universal medical cover.", "2. The Human Rights Centre of Ghent University", "165. According to the Human Rights Centre, the present case afforded a unique opportunity to depart from the excessively restrictive approach adopted by the Court in N. v. the United Kingdom with regard to the expulsion of persons suffering from serious illness.", "166. The intervener began by arguing that this approach contrasted with the general case-law concerning potential violations of Article 3 of the Convention.", "167. Hence, in the judgment in Pretty v. the United Kingdom (no. 2346/02, § 52, ECHR 2002 ‑ III), the Court had indicated on what grounds and to what extent the responsibility of the Contracting State could be engaged. The Court had observed the connection between a naturally occurring illness and its exacerbation by the measure for which the authorities could be held responsible. However, in N. v. the United Kingdom, while the Court had still referred to naturally occurring illness, it had not linked it to the measure taken by the authorities that would exacerbate the illness, but to the lack of sufficient resources to deal with it in the receiving country, from which it had inferred that the alleged future harm did not engage the direct responsibility of the Contracting State.", "168. However, in cases concerning the expulsion of persons suffering from serious illness, the event that triggered the inhuman and degrading treatment was the intentional removal of the persons concerned from a place where they could obtain life-saving treatment to a place where they could not, thereby exposing them to a near-certain but avoidable risk of suffering and death that engaged the State ’ s responsibility. The Court had consistently acknowledged that in cases where there were serious reasons for believing that the person concerned, if removed, faced a risk of being subjected to treatment contrary to Article 3, the absolute nature of that provision prohibited the Contracting Parties from proceeding with the person ’ s removal.", "169. In N. v. the United Kingdom the Court had also based its reasoning on the “search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights” and on the observation that a finding of a violation “would place too great a burden on the Contracting States”. Such an approach was in glaring contradiction with the case-law arising out of the judgment in Saadi v. Italy ([GC], no. 37201/06, ECHR 2008), in which the Court had clearly rejected the idea of conducting a balancing exercise or applying a test of proportionality in order to assess whether an applicant ’ s removal was compatible with Article 3.", "170. The intervener therefore suggested opting for an alternative to the criteria established in N. v. the United Kingdom, one that would be compatible with the absolute nature of the prohibition contained in Article 3. This would entail examining carefully all the foreseeable consequences of removal in order to determine whether the reduction in the life expectancy of the persons concerned and the deterioration in their quality of life would be such that the threshold of severity required by Article 3 was attained. The parameters to be taken into consideration would be, in addition to the state of health of the persons concerned, the appropriateness or otherwise, in terms of quality and promptness, of the medical treatment available in the receiving State and whether it was actually accessible to the individuals concerned. This last criterion could be assessed taking into account the actual cost of treatment, the level of family support available to the persons concerned, the distance they would have to travel in order to have access to the treatment and specific factors linked to their state of health that would heighten their vulnerability.", "171. Lastly, the intervener proposed that Article 3 of the Convention be found to impose a procedural obligation on the domestic authorities in the expelling State requiring them to seek or obtain assurances from the receiving State that the persons concerned would actually have access to the treatment they needed and thus be protected against treatment contrary to Article 3.", "D. The Court ’ s assessment", "1. General principles", "172. The Court reiterates that Contracting States have the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see N. v. the United Kingdom, cited above, § 30). In the context of Article 3, this line of authority began with the case of Vilvarajah and Others v. the United Kingdom (30 October 1991, § 102, Series A no. 215).", "173. Nevertheless, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Saadi, cited above, § 125; M.S.S. v. Belgium and Greece, cited above, § 365; Tarakhel, cited above, § 93; and F.G. v. Sweden, cited above, § 111 ).", "174. The prohibition under Article 3 of the Convention does not relate to all instances of ill-treatment. Such treatment has to attain a minimum level of severity if it is to fall within the scope of that Article. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see N. v. the United Kingdom, cited above, § 29; see also M.S.S. v. Belgium and Greece, cited above, § 219; Tarakhel, cited above, § 94; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015 ).", "175. The Court further observes that it has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty, cited above, § 52). However, it is not prevented from scrutinising an applicant ’ s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country (see D. v. the United Kingdom, cited above, § 49).", "176. In two cases concerning the expulsion by the United Kingdom of aliens who were seriously ill, the Court based its findings on the general principles outlined above (see paragraphs 172-74 above). In both cases the Court proceeded on the premise that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the returning State (see D. v. the United Kingdom, cited above, § 54, and N. v. the United Kingdom, cited above, § 42).", "177. In D. v. the United Kingdom (cited above), which concerned the decision taken by the United Kingdom authorities to expel to St Kitts an alien who was suffering from Aids, the Court considered that the applicant ’ s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment (see D. v. the United Kingdom, cited above, § 53). It found that the case was characterised by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support (ibid., §§ 52-53). Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant ’ s expulsion (ibid., § 54).", "178. In the case of N. v. the United Kingdom, which concerned the removal of a Ugandan national who was suffering from Aids to her country of origin, the Court, in examining whether the circumstances of the case attained the level of severity required by Article 3 of the Convention, observed that neither the decision to remove an alien who was suffering from a serious illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State, nor the fact that the individual ’ s circumstances, including his or her life expectancy, would be significantly reduced, constituted in themselves “exceptional” circumstances sufficient to give rise to a breach of Article 3 (see N. v. the United Kingdom, cited above, § 42). In the Court ’ s view, it was important to avoid upsetting the fair balance inherent in the whole of the Convention between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. A finding to the contrary would place too great a burden on States by obliging them to alleviate the disparities between their health-care system and the level of treatment available in the third country concerned through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction (ibid., § 44). Rather, regard should be had to the fact that the applicant ’ s condition was not critical and was stable as a result of the antiretroviral treatment she had received in the United Kingdom, that she was fit to travel and that her condition was not expected to deteriorate as long as she continued to take the treatment she needed (ibid., § 47). The Court also deemed it necessary to take account of the fact that the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would be able to obtain access to medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of Aids worldwide (ibid., § 50). The Court concluded that the implementation of the decision to remove the applicant would not give rise to a violation of Article 3 of the Convention (ibid., § 51). Nevertheless, it specified that, in addition to situations of the kind addressed in D. v. the United Kingdom in which death was imminent, there might be other very exceptional cases where the humanitarian considerations weighing against removal were equally compelling (see D. v. the United Kingdom, cited above, § 43). An examination of the case-law subsequent to N. v. the United Kingdom has not revealed any such examples.", "179. The Court has applied the case-law established in N. v. the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning aliens who were HIV positive (see, among other authorities, E.O. v. Italy (dec.), no. 34724/10, 10 May 2012) or who suffered from other serious physical illnesses (see, among other authorities, V.S. and Others v. France (dec.), no. 35226/11, 25 November 2014) or mental illnesses (see, among other authorities, Kochieva and Others v. Sweden (dec.), no. 75203/12, 30 April 2013, and Khachatryan v. Belgium (dec.), no. 72597/10, 7 April 2015). Several judgments have applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel (see Yoh-Ekale Mwanje v. Belgium, no. 10486/10, 20 December 2011; S.H.H. v. the United Kingdom, no. 60367/10, 29 January 2013; Tatar, cited above; and A.S. v. Switzerland, no. 39350/13, 30 June 2015).", "180. However, in its judgment in Aswat v. the United Kingdom (no. 17299/12, § 49, 16 April 2013), the Court reached a different conclusion, finding that the applicant ’ s extradition to the United States, where he was being prosecuted for terrorist activities, would entail ill ‑ treatment, in particular because the conditions of detention in the maximum security prison where he would be placed were liable to aggravate his paranoid schizophrenia. The Court held that the risk of significant deterioration in the applicant ’ s mental and physical health was sufficient to give rise to a breach of Article 3 of the Convention (ibid., § 57).", "181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.", "182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012 ), the Court is of the view that the approach adopted hitherto should be clarified.", "183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.", "184. As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants ’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 286-87, and F.G. v. Sweden, cited above, §§ 117-18 ).", "185. Accordingly, in cases of this kind, the authorities ’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012; Tarakhel, cited above, § 104; and F.G. v. Sweden, cited above, § 117).", "186. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see, in particular, Trabelsi v. Belgium, no. 140/10, § 130, ECHR 2014 (extracts) ).", "187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). The risk alleged must be subjected to close scrutiny (see Saadi, cited above, § 128; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011; Hirsi Jamaa and Others, cited above, § 116; and Tarakhel, cited above, § 104) in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual ’ s personal circumstances (see Vilvarajah and Others, cited above, § 108; El-Masri, cited above, § 213; and Tarakhel, cited above, § 105). The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.", "188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill ‑ treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.", "189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant ’ s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.", "190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).", "191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).", "192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.", "193. Lastly, the fact that the third country concerned is a Contracting Party to the Convention is not decisive. While the Court agrees with the Government that the possibility for the applicant to initiate proceedings on his return to Georgia was, in principle, the most natural remedy under the Convention system, it observes that the authorities in the returning State are not exempted on that account from their duty of prevention under Article 3 of the Convention (see, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 357-59, and Tarakhel, cited above, §§ 104-05).", "2. Application of the general principles to the present case", "194. It is not disputed that the applicant was suffering from a very serious illness, chronic lymphocytic leukaemia, and that his condition was life-threatening.", "195. The applicant provided detailed medical information obtained from Dr L., a doctor specialising in the treatment of leukaemia and head of the haematology department in a hospital devoted entirely to the treatment of cancer. According to this information, the applicant ’ s condition had become stable as a result of the treatment he was receiving in Belgium. This was a highly targeted treatment aimed at enabling him to undergo a donor transplant, which offered the last remaining prospect of a cure provided it was carried out within a fairly short timeframe. If the treatment being administered to the applicant had had to be discontinued, his life expectancy, based on the average, would have been less than six months (see paragraph 46 above).", "196. In a report of 23 June 2015 the medical adviser of the Aliens Office stressed that the medical information concerning the applicant did not disclose a direct threat to his life or indicate that his state of health was critical (see paragraph 68 above).", "197. The applicant submitted that, according to the information available to Dr L., neither the treatment he was receiving in Belgium nor the donor transplant was available in Georgia. As to the other forms of leukaemia treatment available in that country, he argued that there was no guarantee that he would have access to them, on account of the shortcomings in the Georgian social insurance system (see paragraph 141 above). In the Court ’ s view, these assertions are not without some credibility.", "198. The Court notes that on 10 September 2007 and 2 April 2008 the applicant made two requests for regularisation of his residence status in Belgium on medical grounds, on the basis of section 9 ter of the Aliens Act (see paragraphs 54 and 59 above). His requests were based primarily on the need to obtain appropriate treatment for his leukaemia and on the premise that he would have been unable to receive suitable care for his condition in Georgia.", "199. On 26 September 2007 and 4 June 2008 the applicant ’ s requests for regularisation were refused by the Aliens Office on the grounds that he was excluded from the scope of section 9 ter of the Act because of the serious crimes he had committed (see paragraphs 55 and 60 above). The Aliens Appeals Board, called upon to examine the applicant ’ s requests for a stay of execution of these decisions and his applications to set them aside, held in judgments dated 28 August 2008 and 21 May 2015 that, where the administrative authority advanced grounds for exclusion, it was not necessary for it to examine the medical evidence submitted to it. With regard to the complaints based on Article 3 of the Convention, the Aliens Appeals Board further noted that the decision refusing leave to remain had not been accompanied by a removal measure, with the result that the risk of the applicant ’ s medical treatment being discontinued in the event of his return to Georgia was purely hypothetical (see paragraphs 57 and 62 above). The Conseil d ’ État, to which the applicant appealed on points of law, upheld the reasoning of the Aliens Appeals Board and specified that the medical situation of an alien who faced removal from the country and whose request for leave to remain had been refused should be assessed at the time of enforcement of the removal measure rather than at the time of its adoption (see paragraph 64 above).", "200. The Court concludes from the above that, although the Aliens Office ’ s medical adviser had issued several opinions regarding the applicant ’ s state of health based on the medical certificates provided by the applicant (see paragraphs 67-68 above), these were not examined either by the Aliens Office or by the Aliens Appeals Board from the perspective of Article 3 of the Convention in the course of the proceedings concerning regularisation on medical grounds.", "201. Nor was the applicant ’ s medical situation examined in the context of the proceedings concerning his removal (see paragraphs 73, 78 and 84 above).", "202. The fact that an assessment of this kind could have been carried out immediately before the removal measure was to be enforced (see paragraph 199 in fine above) does not address these concerns in itself, in the absence of any indication of the extent of such an assessment and its effect on the binding nature of the order to leave the country.", "203. It is true that at the hearing on 15 September 2015 the Belgian Government gave assurances that, should it ultimately be decided to perform a donor transplant in Belgium, the Belgian authorities would not take any steps to prevent it or to secure the applicant ’ s removal while he was in hospital. The Court takes note of that statement.", "204. The Government further submitted that it might have been possible to continue the applicant ’ s treatment by having his medication sent through the post under the supervision of his doctor and with the assistance of doctors in Georgia. However, the Government did not provide any specific information regarding the practical feasibility of such a solution.", "205. In conclusion, the Court considers that in the absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, the information available to those authorities was insufficient for them to conclude that the applicant, if returned to Georgia, would not have run a real and concrete risk of treatment contrary to Article 3 of the Convention (see paragraph 183 above).", "206. It follows that, if the applicant had been returned to Georgia without these factors being assessed, there would have been a violation of Article 3.", "207. In view of this finding the Court considers that it is not necessary to examine the complaint under Article 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "208. The applicant complained that his removal to Georgia, ordered together with a ten-year ban on re-entering Belgium, would have resulted in his separation from his family, who had been granted leave to remain in Belgium and constituted his sole source of moral support. He alleged a violation of Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "209. Under Article 8 of the Convention viewed from the standpoint of the State ’ s positive obligations (see the Chamber judgment, § 138), the Chamber considered that the applicant ’ s convictions weighed heavily with regard to both the number and seriousness of the offences and the nature of the last penalty imposed (ibid., §§ 145 ‑ 47).", "210. It also noted that at no point during his fifteen-year stay in Belgium had the applicant been in possession of a valid residence permit and that, despite the applicant ’ s repeated convictions, the Belgian authorities had displayed remarkable tolerance (ibid., §§ 149-50). It further took account of the fact that the members of the family were Georgian nationals and that, as they had Belgian residence permits, his wife and children could leave and re-enter the country lawfully (ibid., §§ 151-53).", "211. Lastly, taking into consideration the medical aspect of the case and the fact that the family could decide to leave Belgium temporarily for Georgia, the Chamber stressed that it did not discern any exceptional circumstances that would require the Belgian authorities to refrain from removing the applicant or to grant him leave to remain (ibid., § 154).", "212. Accordingly, it held that there had been no violation of Article 8 of the Convention (ibid., § 156).", "B. The parties ’ observations before the Grand Chamber", "1. The applicant", "213. The applicant maintained that the Belgian authorities ’ refusal to regularise his residence status on humanitarian grounds or to examine his request for regularisation on medical grounds amounted to interference with his private and family life in breach of Article 8.", "214. He argued that the Belgian authorities had been under a duty to carry out a balanced and reasonable assessment of all the interests at stake. They should have applied the rules taking into consideration the children ’ s best interests and the requirement to afford them special protection on account of their vulnerability. Although the applicant ’ s children had Georgian nationality, from a “sociological” perspective they were Belgian, and they spoke only French. They had been given leave to remain in Belgium in 2010 and two of them had been born in Belgium. They had no ties in Georgia, did not speak Georgian or Russian and would be eligible to become fully fledged Belgian citizens in the medium term.", "215. In addition, the couple ’ s eldest daughter, with whom his wife had arrived in Belgium in 1998, was now an adult and lived in Belgium with her two children.", "216. The refusal to regularise the applicant ’ s status had left the family in a state of economic and social vulnerability which had had a major psychological impact and had hindered the development of their daily life. The practical implications of this situation for the applicant – the fact that he was barred from working and could not contribute to the household expenses, the constant fear of arrest, the negative effect on his self-esteem, and so forth – had affected the relationship between the children and their father. The applicant ’ s criminal behaviour, which had been motivated largely by the need to survive financially, belonged to the past. The applicant was in a very weak state and stayed mostly at home, venturing out only to collect his children from school.", "217. The worsening of the applicant ’ s condition, coupled with the impossibility of maintaining his state of health in Georgia and with the length of his residence and that of his family in Belgium, should have prompted the Court to reconsider the approach taken in the Chamber judgment, to assess the situation in its entirety and to find that the applicant ’ s family had specific needs linked to their integration in Belgium. The solution advocated by the Chamber, which would have entailed the family moving to Georgia for long enough to take care of the applicant until his death, would not have been feasible as it would have meant taking the children out of school in Belgium and taking them to a country they did not know and where they did not speak the language. Their mother would have been unable to ensure the family ’ s upkeep in Georgia in view of the applicant ’ s condition, and the applicant would have died in particularly distressing circumstances. Furthermore, if they had had to remain in Georgia for more than one year, the applicant ’ s wife and children would have forfeited the right to return to Belgium. Such a solution would have been, to say the least, disproportionate when weighed against the interests of the Belgian State.", "2. The Government", "218. The Government stressed the significance that should be attached to the applicant ’ s criminal record and the fact that he had persisted in his criminal conduct despite his illness.", "219. As to the children ’ s best interests, the Government considered that these were difficult to determine because the children were not applicants and especially because there was nothing to indicate that they would have been unable to follow their father to Georgia for a time and attend school there. Furthermore, as the applicant had not provided detailed information regarding the extent of his family in Georgia and the persons with whom he was in contact, it was difficult to make an overall assessment of the situation.", "220. The Government further submitted that residence permits had been issued by a decision of 29 July 2010 to the applicant ’ s wife and their children, granting them indefinite leave to remain under sections 9 and 13 of the Aliens Act. The permit in question was a “type B”, in other words, a certificate of entry in the aliens ’ register which was valid for five years and could be renewed for the same period – in advance, if necessary – by the municipal authorities in the place of residence. This residence permit entitled the members of the applicant ’ s family to leave Belgium for one year or more and return to the country, provided that they had complied with the requisite formalities in the municipality of residence and had ensured that they had a valid permit. The formalities varied according to the length of the stay outside the country: in the case of stays of three months to a year, the aliens concerned had to report to the municipal authorities before leaving and within fifteen days of returning or risk automatic removal from the municipality ’ s register. In the case of stays of over one year, they forfeited their right to remain unless they could demonstrate before their departure that their centre of interests still lay in Belgium and they informed the municipal authorities in their habitual place of residence of their intention to leave the country and return. The persons concerned also had to be in possession of a valid residence permit on their return and to report to the municipal authorities within fifteen days of returning.", "C. The Court ’ s assessment", "221. As regards the applicability of Article 8 and the standpoint from which the complaints should be examined, the Grand Chamber will proceed on the same premises as the Chamber (see the Chamber judgment, §§ 136 ‑ 38). Firstly, it is not disputed that family life existed between the applicant, his wife and the children born in Belgium. This renders irrelevant the disagreement as to whether the applicant was the father of the child born before their arrival in Belgium, who is now an adult (ibid., § 136). Furthermore, assuming that the removal measure could have been examined from the standpoint of the applicant ’ s private life, the “family life” aspect should take precedence in view of the specific issues raised by the present case and the parties ’ submissions. Secondly, while the case concerns both the domestic authorities ’ refusal to grant the applicant leave to remain in Belgium and the threat of his removal to Georgia, in view of the specific features of the case and recent developments the Chamber found that the key question was whether the Belgian authorities were under a duty to allow the applicant to reside in Belgium so that he could remain with his family (ibid., § 138). The Grand Chamber considers that examining the complaint alleging a violation of Article 8 in this way from the standpoint of the Belgian authorities ’ positive obligations is made all the more necessary by the developments in the case, in particular the deterioration of the applicant ’ s health and his eventual death. Lastly, the Grand Chamber reiterates that in the context of both its positive and its negative obligations, the State must strike a fair balance between the competing interests of the individual and of society as a whole, and that the extent of the State ’ s obligations will vary according to the particular circumstances of the persons involved and the general interest (ibid., § 140, and the references cited therein).", "222. However, unlike the Chamber, having observed that the Belgian authorities did not examine the applicant ’ s medical data and the impact of his removal on his state of health in any of the proceedings brought before them, the Grand Chamber has concluded that there would have been a violation of Article 3 of the Convention if the applicant had been removed to Georgia without such an assessment being carried out (see paragraph 206 above).", "223. A fortiori, the Court observes that the Belgian authorities likewise did not examine, under Article 8, the degree to which the applicant was dependent on his family as a result of the deterioration of his state of health. In the context of the proceedings for regularisation on medical grounds the Aliens Appeals Board, indeed, dismissed the applicant ’ s complaint under Article 8 on the ground that the decision refusing him leave to remain had not been accompanied by a removal measure (see paragraph 58 above).", "224. Nevertheless, just as in the case of Article 3, it is not for the Court to conduct an assessment, from the perspective of Article 8 of the Convention, of the impact of removal on the applicant ’ s family life in the light of his state of health. In that connection the Court considers that this task not only falls to the domestic authorities, which are competent in the matter, but also constitutes a procedural obligation with which they must comply in order to ensure the effectiveness of the right to respect for family life. As the Court has observed above (see paragraph 184), the machinery of complaint to the Court is subsidiary to national systems safeguarding human rights.", "225. Accordingly, if the Belgian authorities had ultimately concluded that Article 3 of the Convention as interpreted above did not act as a bar to the applicant ’ s removal to Georgia, they would have been required, in order to comply with Article 8, to examine in addition whether, in the light of the applicant ’ s specific situation at the time of removal (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 93, ECHR 2008), the family could reasonably have been expected to follow him to Georgia or, if not, whether observance of the applicant ’ s right to respect for his family life required that he be granted leave to remain in Belgium for the time he had left to live.", "226. It follows that, if the applicant had been removed to Georgia without these factors having been assessed, there would also have been a violation of Article 8 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "227. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "228. The applicant claimed EUR 10,434 in respect of pecuniary damage. This amount corresponded to his out-of-pocket expenses for treatment in Belgium which had not been covered owing to his irregular residence status in the country.", "229. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, and dismisses this claim.", "230. The applicant also claimed EUR 5,000 in respect of non-pecuniary damage resulting from his precarious socio-economic situation.", "231. The Court considers that, having regard to the circumstances of the case, the conclusion it has reached under Articles 3 and 8 of the Convention (see paragraphs 206 and 226 above) constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head.", "B. Costs and expenses", "232. The applicant further claimed EUR 9,411 in respect of the fees payable to his lawyers for the preparation of the written observations they had submitted to the Court prior to the request for referral to the Grand Chamber. He submitted copies of the relevant invoices in support of his claim, and stated that he had already paid approximately half of the fees, that is, EUR 4,668, and was unable to pay the remainder.", "233. In their observations before the Chamber the Government argued that the applicant, as an alien, was presumed under domestic law to be in financial need and thus eligible for legal aid, including for the expenses linked to the proceedings before the Court.", "234. Making its assessment on an equitable basis, the Court decides that the sum of EUR 5,000 is to be paid to the applicant ’ s family in respect of costs and expenses, plus any tax that may be chargeable to them (see, mutatis mutandis, Karner, cited above, § 50).", "C. Default interest", "235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1958. He lived in Brussels and died there on 7 June 2016.", "11. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and a six-year-old child. The applicant claimed to be the father of the child, an assertion which the Government contested. The couple subsequently had a child together in August 1999 and another in July 2006.", "A. Criminal proceedings", "12. On 29 December 1998 the applicant was arrested and taken into custody on charges of theft. On 14 April 1999 he received a sentence of seven months ’ imprisonment, which was suspended except for the period of pre ‑ trial detention.", "13. In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences.", "14. On 28 April 2000 the applicant ’ s wife was sentenced to four months ’ imprisonment for theft.", "15. On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and received a sentence of fourteen months ’ imprisonment, which was suspended except for the period of pre-trial detention.", "16. On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years ’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception or corruption.", "17. Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence.", "B. Asylum proceedings", "18. On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application.", "19. As the applicant ’ s wife stated that she had travelled through Germany, a request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”).", "20. After the German authorities had refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999.", "21. On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints had been checked.", "22. On 23 October 2000 the Aliens Office informed the applicant ’ s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application.", "C. Requests for leave to remain on exceptional grounds", "1. First request for regularisation on exceptional grounds", "23. On 20 March 2000 the applicant lodged a first request for regularisation for a period of more than three months, on the basis of section 9(3) (since 1 June 2007, section 9 bis ) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request the applicant stated that he and his wife had a daughter born in Georgia before their arrival in Belgium and another daughter born in Belgium in 1999.", "24. On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant ’ s medical treatment for tuberculosis had ended (see paragraph 49 below). The Aliens Office also referred to the applicant ’ s lack of integration in Belgium and the numerous breaches of public order he had committed.", "2. Second request for regularisation on exceptional grounds", "25. On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children ’ s schooling, the fact that he had been the victim of persecution and his state of health.", "26. The Aliens Office declared the request inadmissible on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical supervision, the applicant ’ s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country.", "27. In a judgment of 29 February 2008 the Aliens Appeals Board rejected an application by the applicant to set aside the Aliens Office ’ s decision. It noted in particular that, since the decision complained of had not been accompanied as such by a removal measure, it could not give rise to a risk of violation of Article 3 of the Convention.", "3. Third request for regularisation on exceptional grounds", "28. On 10 September 2007, relying on the same grounds as those invoked under section 9 ter of the Aliens Act (see paragraph 54 below) and on his family situation, the applicant lodged a request for regularisation on exceptional grounds under section 9 bis of the Aliens Act.", "29. On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State ’ s best interests took precedence over the applicant ’ s social and family interests and that by committing serious punishable acts the applicant himself had placed his family ’ s unity in jeopardy. That decision was served on the applicant on 11 July 2010.", "30. On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the decision of 7 July 2010 rejecting his request for regularisation of his status, together with an application to have that decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraph 78 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III), that he would not have access to treatment in Georgia and that the discontinuation of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were returned to Georgia he would be separated from his family permanently.", "31. The request and application were refused by the Aliens Appeals Board in a judgment of 16 March 2015 on the ground that the applicant had not attended the hearing or been represented.", "4. Regularisation of the residence status of the applicant ’ s family", "32. On 5 November 2009 the applicant ’ s wife lodged a request for regularisation on exceptional grounds under section 9 bis of the Aliens Act, relying on her family situation and the duration of her residence in Belgium.", "33. On 29 July 2010 she and her three children were granted indefinite leave to remain.", "D. The applicant ’ s state of health", "1. Chronic lymphocytic leukaemia", "34. In 2006, while the applicant was in prison (see paragraph 17 above), he was diagnosed with chronic lymphocytic leukaemia in Binet stage B, with a very high level of CD38 expression. No treatment was commenced.", "35. As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of chemotherapy.", "36. A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen significantly.", "37. From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held.", "38. On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility for illegal aliens (see paragraph 79 below), to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor ’ s report noted that the applicant ’ s leukaemia, which was progressing rapidly towards Binet stage C, had not been monitored sufficiently and that a different course of chemotherapy was required.", "39. In August 2011 the applicant ’ s condition worsened and the doctors observed that his leukaemia had progressed to Binet stage C, with anaemia and widespread enlargement of the lymph nodes (life expectancy of twenty ‑ four months). It was decided to switch to a different course of chemotherapy.", "40. On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels, where the applicant was being treated following his release (see paragraph 82 below), drew up a certificate which stated as follows:", "“...", "D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and consequent disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the [chronic lymphocytic leukaemia] could lead to the patient ’ s death as a result of the disease itself or the effects of serious infections.", "A return to Georgia would expose the patient to inhuman and degrading treatment.", "E. Progression and prognosis. Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real, so that close monitoring is required even during remission. ...”", "41. After a relapse diagnosed in 2013, the doctors in St Pierre University Hospital observed in March 2014 that the applicant ’ s leukaemia had developed into lymphocytic lymphoma, and his chemotherapy was adjusted accordingly. A positron ‑ emission tomography (PET) scan performed on 22 September 2014 showed a lack of response to the chemotherapy, a progression of the disease in the lymph nodes and the liver, and a pulmonary infection.", "42. The applicant ’ s treatment was handed over to the Institut Bordet in Brussels, a hospital devoted exclusively to the treatment of cancer patients.", "43. In December 2014 the applicant began to receive a new course of treatment as part of a study. He was given Ibrutinib, designed in particular to improve his overall condition, which had been compromised by complications arising out of the treatment (fungaemia, pulmonary infections, septicaemia and cholecystitis, resulting in his being admitted to hospital on several occasions). The treatment was prescribed in order to improve the applicant ’ s overall condition in preparation for a donor stem cell transplant.", "44. A medical certificate issued on 25 May 2015 by the specialist treating the applicant, Dr L., head of the experimental haematology laboratory at the Institut Bordet, stated that the patient ’ s viral load was stable. The doctor stressed that discontinuing treatment would result in the patient ’ s death. Because of the patient ’ s immunosuppression and the aggressive nature of the leukaemia, treatment in a specialised haematology unit was necessary, as was a donor stem cell transplant, which offered the only remaining prospect of a cure provided that it was performed during the two-year “window of response” to Ibrutinib.", "45. The applicant stated that the stem cell transplant, originally scheduled to take place in April 2015, had not been performed to date because he did not have a residence permit in Belgium as required by the Organ Removal and Transplant Act of 13 June 1986.", "46. On 14 July 2015 a new medical report was prepared by Dr L. which read as follows:", "“The patient ’ s CLL [chronic lymphocytic leukaemia]", "...", "The patient has been suffering from CLL for nine years (diagnosed in 2006), and by 2011 had already reached stage C and Rai IV [stage IV according to the Rai criteria]. He had already had three lines of treatment prior to Ibrutinib, which he is currently taking, and was refractory to the third line of treatment (R-CVP chemotherapy).", "It is clear from the medical literature that if Ibrutinib is discontinued in such a situation, the average life expectancy is three months. ...", "The literature also shows that only 7% of patients being treated with Ibrutinib achieve complete remission. Mr Paposhvili is currently in partial remission and is thus wholly dependent on the treatment. This is a new targeted therapy to which he would have no access in his country of origin. With continuous treatment the patient ’ s prognosis is more favourable, with an 87% survival rate after three years. ...", "CLL and especially treatment with Ibrutinib can give rise to serious complications which fully justify regular supervision in a specialised setting. This is particularly true since the patient is in a weak state and has a serious medical history (tuberculosis and stroke) and significant comorbidities (active chronic hepatitis and COPD [chronic obstructive pulmonary disease]). ...", "In the case of a young person – Mr Paposhvili is only 57 – the current guidelines advocate using Ibrutinib in order to obtain the best possible response, followed by a donor peripheral blood stem cell transplant. A HLA [human leukocyte antigen] matched donor has been identified for the patient.", "Although risky, a donor transplant offers the only prospect of a cure for the patient; he would be unable to have such a transplant in his country of origin.", "...", "Conclusions", "The [Aliens Office ’ s medical adviser] concludes ... [that] the condition of the patient ’ s vital organs is not directly life-threatening. That all depends on what is meant by ‘ directly ’. The patient is suffering from a cancer that is potentially fatal in the short term (median survival time nineteen months) ... and most likely within six months without appropriate treatment.", "Moreover, if the treatment is not tailored to the patient ’ s overall immunosuppression, there is a serious risk of death caused by infection, especially in a Gold stage II COPD patient with a history of tuberculosis. ...”", "47. On 1 August 2015 treatment with Ibrutinib became eligible for reimbursement in Belgium.", "48. Because of the side-effects of this treatment, which might compromise the donor transplant, the dose of Ibrutinib was reduced from three doses to one dose per day.", "2. Other illnesses", "49. In 2000 the applicant was diagnosed with active pulmonary tuberculosis. He was treated for that condition under the emergency medical assistance and social welfare assistance schemes.", "50. During 2008 the applicant ’ s tuberculosis was found to have become active again.", "51. As a result of that disease the applicant developed chronic obstructive pulmonary disease, for which he received treatment.", "52. In addition, the applicant suffered from hepatitis C, which was also diagnosed in 2006 and was probably linked to a history of drug abuse. It was accompanied by liver fibrosis. According to a medical report dated 24 April 2015 his hepatitis, which had been treated effectively in 2012 and 2013, had become stable.", "53. A magnetic resonance imaging scan carried out in March 2015 showed that the applicant had suffered a stroke, resulting in permanent paralysis of the left arm. The effects of the stroke were managed with an anti-epilepsy drug.", "E. Requests for regularisation on medical grounds", "1. First request for regularisation on medical grounds", "54. On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraph 34 above) if he were sent back to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9 ter of the Aliens Act.", "55. On 26 September 2007 the Aliens Office refused the request on the ground that, under section 9 ter (4) of the Act, the applicant was excluded from its scope on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 73 below).", "56. On 17 December 2007 the applicant lodged a request for a stay of execution of that decision under the ordinary procedure, together with an application to set aside. He alleged in particular that the Aliens Office had relied exclusively on the ministerial deportation order in excluding him from the scope of section 9 ter of the Aliens Act, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention.", "57. In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant ’ s claims in the following terms:", "“It is clear from the wording of [section 9 ter ] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9 ter, from ruling immediately on the exclusion of the person concerned from the scope of the said section 9 ter without first being required to take a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. Indeed, the examination of that evidence is superfluous in such a situation since the person responsible for taking the decision has in any event already decided that the individual is excluded from the scope [of section 9 ter ].", "...", "As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any removal measure, with the result that the alleged risk of discontinuation of treatment in the event of the applicant ’ s return to Georgia is hypothetical.”", "58. The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision had not been accompanied by any removal measure.", "2. Second request for regularisation on medical grounds", "59. In the meantime, on 3 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9 ter of the Aliens Act. In addition to his various health problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had any family ties and where the medical facilities were unsuitable and expensive.", "60. The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 55 above).", "61. On 16 July 2008 the applicant lodged an application with the Aliens Appeals Board to have that decision set aside.", "62. In a judgment of 21 May 2015 the Aliens Appeals Board rejected the application to set aside. It held that, where the above-mentioned exclusion clause was applied, the Aliens Office was not required to rule on the medical and other evidence contained in the request for regularisation. According to the Aliens Appeals Board, such examination was superfluous by virtue of the exclusion clause alone. The Board pointed out that its task was to review the lawfulness of the measure. This review did not permit it to substitute its own assessment of the facts that were deemed to have been established and were not apparent from the administrative file; rather, its task was confined to ensuring that the formal requirement to provide reasons had been complied with and that the reasoning was not based on a manifest error of assessment. As to the complaints alleging a violation of Articles 2 and 3 of the Convention, the Aliens Appeals Board stated that the assessment of the medical situation of an alien facing removal whose request for regularisation had been rejected should be carried out, as applicable, at the time of enforcement of the removal measure.", "63. On 22 June 2015 the applicant lodged an appeal on points of law against that judgment with the Conseil d ’ État. One of the grounds of appeal was based on Articles 2 and 3 of the Convention. The applicant submitted that the Aliens Appeals Board could not have been unaware that several orders to leave the country had already been issued against him prior to the decision not to examine his request for leave to remain, and that his expulsion had been suspended only as a result of the interim measure applied by the Court (see paragraph 87 below). The applicant further argued that the Aliens Appeals Board had breached the provisions of the Convention by postponing until the date of enforcement of the removal measure the examination of the medical situation of an alien suffering from a serious illness who had requested leave to remain on medical grounds, without studying the specific risks.", "64. In an order of 9 July 2015 the appeal on points of law was declared inadmissible. The Conseil d ’ État held that, contrary to the applicant ’ s assertion, the grounds for setting aside advanced before the Aliens Appeals Board had simply stressed, in a theoretical and general manner, that section 9 ter of the Act encompassed the application in domestic law of the obligation under Articles 2 and 3 of the Convention prohibiting the removal of a seriously ill person if such a measure was liable to result in death or inhuman and degrading treatment; no specific explanation had been given, however, as to how the applicant himself risked facing that situation. The Conseil d ’ État also observed that the applicant had not argued before the Aliens Appeals Board that orders to leave the country had been issued against him, or that a removal measure could be revived; he was therefore unable to rely on those arguments in his appeal on points of law. In any event, the Conseil d ’ État held that the Aliens Appeals Board had in no way erred in finding that the examination of the medical situation of an alien facing removal whose request for leave to remain had been rejected should be carried out, as applicable, at the time of enforcement of the measure.", "3. Review of the applicant ’ s situation in connection with the proceedings before the Court", "65. The applicant was requested to report to the Aliens Office ’ s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to reply to the Court ’ s questions.", "66. The report prepared by the medical adviser on that occasion listed the consultations held and the treatment that had been administered to the applicant. It stated that his leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, and that the applicant was under medical supervision for his lung disease.", "67. Referring to the Court ’ s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows:", "“On the basis of this medical file it cannot ... be concluded that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached ...", "It appears from the medical file that the diseases to which the medical certificates refer ... do not disclose a direct threat to the patient ’ s life. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control.", "None of the patient ’ s vital organs is in a condition that is directly life-threatening. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is being controlled by treatment consisting solely of an inhaled corticosteroid. The patient ’ s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient ’ s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being.", "... Neither monitoring of the patient ’ s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient ’ s survival.", "The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.”", "68. A medical report drawn up on 23 June 2015 by the medical adviser to the Aliens Office provided a detailed review of the applicant ’ s clinical history and current state of health and the treatment being administered. It concluded as follows:", "“On the basis of [the] medical file it cannot therefore be concluded that the threshold of severity set by Article 3 of the Convention, which requires a risk to life on account of the applicant ’ s critical condition or the very advanced stage of his or her illness, has been reached ( N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008, and D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III).", "The diseases referred to in the most recent update to the medical file ([Dr L.], 25 May 2015) ... do not disclose:", "– a direct threat to the life of the patient. The illnesses from which the applicant suffers are serious and potentially fatal but are currently under control. ...", "– that the condition of the patient ’ s vital organs is directly life-threatening. ...", "– a critical state of health. Neither monitoring of the patient ’ s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient ’ s survival. The disease cannot be said to be in the terminal stages at present ...”", "F. Removal proceedings and the Court ’ s intervention", "1. Order to leave the country under the Dublin Convention", "69. On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant ’ s wife was pregnant.", "70. After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist.", "71. The time-limit for enforcement of the order for the family to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant ’ s tuberculosis (see paragraph 49 above) and the six-month course of anti-tubercular treatment required by the whole family.", "72. On 23 October 2000 the Aliens Office informed the applicant ’ s lawyer that the time-limit had been extended until such time as the applicant and his child were fully recovered.", "2. Ministerial deportation order", "73. On 16 August 2007, while the applicant was serving a prison sentence (see paragraph 17 above), the Minister of the Interior, in a deportation order issued under section 20 of the Aliens Act, directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant ’ s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”.", "74. The order became enforceable on the date of the applicant ’ s release but was not in fact enforced because the applicant was undergoing medical treatment at the time.", "75. The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time.", "76. In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he was transferred on 14 August 2007 to Bruges Prison with a view to implementation of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison.", "77. During his time in Bruges Prison the applicant was visited on an almost daily basis by his wife and/or his children. The authorities of Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010, informed the applicant that they did not have a record of the number of visits he had received.", "3. Orders to leave the country following refusal of the regularisation request", "78. In parallel with its decision of 7 July 2010 refusing the applicant ’ s request for regularisation on exceptional grounds (see paragraph 2 9 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These orders, made on the basis of section 7(1)(1) of the Aliens Act, were served on the applicant on 11 July 2010.", "79. Also on 7 July 2010 it was decided that the applicant should be transferred on 13 July to the Merksplas closed facility for illegal aliens with a view to his removal to Georgia.", "80. On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010.", "81. On the same day the applicant lodged a request for a stay of execution under the ordinary procedure, together with an application to set aside, directed specifically against the above-mentioned order to leave the country of 7 July 2010.", "82. On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 87 below), an order was made for the applicant ’ s release and he was given until 30 August 2010 to leave the country voluntarily.", "83. In a letter dated 30 August 2010 counsel for the applicant applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was initially extended until 13 November 2010 and was subsequently extended several times until 19 February 2011.", "84. On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” pursuant to the ministerial deportation order of 16 August 2007.", "85. The above-mentioned request and application were rejected by the Aliens Appeals Board in a judgment of 29 May 2015 on the ground that the applicant had not attended the hearing or been represented.", "4. Indication of an interim measure under Rule 39 of the Rules of Court", "86. In the meantime, on 23 July 2010, the applicant applied to the Court for interim measures under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were removed to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die even sooner, far away from his family.", "87. On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”.", "G. Other events", "88. The applicant was arrested on several occasions between 2012 and 2015 for shoplifting.", "89. In addition, in July 2013 the Aliens Office was contacted by the Luxembourg police and customs cooperation centre, which reported that the applicant was in detention in the Grand Duchy of Luxembourg.", "90. In May 2014 a warrant was issued for the applicant ’ s arrest for theft. The applicant was detained in Bruges Prison and released a few days later.", "91. Two notarised deeds of sale dated 24 March and 5 August 2015 record the transfer by the applicant, represented by E.B., to a certain Aleksandre Paposhvili, of a plot of building land for a sum of 30,000 euros (EUR) and a plot of farmland for a sum of EUR 5,000. Both plots are located in the village of Kalauri in the Gurjaani region of Georgia." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Regularisation procedures", "1. Regularisation on exceptional grounds", "92. In order to be allowed to remain in Belgium for more than three months, aliens must normally obtain permission before arriving in the country. Section 9(2) of the Aliens Act provides:", "“... Except where an international treaty, statute or royal decree otherwise provides, such permission [to remain in the Kingdom beyond the period laid down in section 6, namely for more than three months] shall be requested by the aliens concerned at the Belgian diplomatic mission or consulate responsible for their place of permanent residence or their temporary residence abroad.”", "93. Aliens whose residence status in Belgium is unlawful or precarious, and who wish to obtain long-term leave to remain without having to return to their country of origin, may apply directly in Belgium if they can claim exceptional circumstances. According to established case-law and practice, regularisation of residence status may be granted on a case ‑ by-case basis under section 9 bis (former section 9(3)) of the Aliens Act. Section 9 bis (1) reads as follows:", "“In exceptional circumstances, and provided that the alien concerned is in possession of identity papers, leave to remain may be requested from the mayor of the municipality in which he or she is resident, who forwards the request to the Minister or his or her representative. Where the Minister or his or her representative grants leave to remain, the residence permit shall be issued in Belgium.", "...”", "94. The Act does not specify either the exceptional circumstances on the basis of which the request may be made from within Belgium or the substantive grounds on which leave to remain may be granted. It is for the Aliens Office to assess the circumstances alleged by the alien concerned in each individual case. It begins by examining the exceptional circumstances invoked, in order to determine whether the request is admissible. If this is the case, it rules subsequently on the substantive grounds relied on by the alien concerned in support of the request for leave to remain.", "2. Regularisation on medical grounds", "(a) Section 9 ter of the Aliens Act", "95. Section 9 ter of the Aliens Act provides for the possibility of granting leave to remain on medical grounds. The first paragraph, as inserted by the Act of 15 September 2006, amended by the Act of 7 June 2009 and replaced by the Act of 29 December 2010, provided as follows at the material time:", "“1. Aliens resident in Belgium who provide proof of identity in accordance with paragraph 2 and who are suffering from an illness entailing a real risk to their life or physical well-being or a real risk of inhuman or degrading treatment if no appropriate treatment exists in their country of origin or previous country of residence may apply to the Minister or his or her representative for leave to remain in the Kingdom.", "The request must be made by registered letter to the Minister or his or her representative and must include the actual address of the alien concerned in Belgium.", "The alien concerned must submit the request together with all the relevant information concerning his or her illness and the availability and accessibility of appropriate treatment in the country of origin or the previous country of residence.", "He or she shall submit a standard medical certificate as provided for by royal decree approved by the Cabinet. The medical certificate shall indicate the illness, its degree of seriousness and the treatment considered necessary.", "The assessment of the risk referred to in the first sub-paragraph, the possibilities for treatment, the accessibility of such treatment in the country of origin or of previous residence, together with the assessment of the illness, its seriousness and the treatment considered necessary, as indicated in the medical certificate, shall be carried out by a medical officer or a doctor appointed by the Minister or his or her representative, who shall issue an opinion in this regard. The doctor in question may, if he or she deems necessary, examine the individual concerned and seek additional expert opinions.”", "96. The procedure for examining requests for regularisation takes place in two stages. The first stage involves an examination by an official of the Aliens Office of the admissibility of the request, with particular regard to the information that must be included on the medical certificate (indication of the illness, its seriousness and the treatment considered necessary). In that connection the Aliens Appeals Board has stated that “[the legislature ’ s] aim of clarifying the procedure would be thwarted if [the Aliens Office] were required to carry out an in-depth examination of each medical certificate produced and the accompanying documents in order to ascertain the nature of the illness, its seriousness and the treatment considered necessary, given that the [official responsible] is neither a medical officer nor another doctor appointed for the purpose” (see, in particular, Aliens Appeals Board, judgment no. 69.508 of 28 October 2011). The second stage, which concerns only those requests deemed to be admissible, consists of a comprehensive review by the Aliens Office of the individual ’ s state of health and a substantive assessment of the factors enumerated in the legislation, on the basis of the opinion of a medical officer or another doctor appointed for the purpose.", "97. It is clear from the drafting history of section 9 ter that the question whether appropriate and sufficiently accessible treatment exists in the receiving country is examined on a case-by-case basis, taking into account the requesting party ’ s individual situation, assessed within the confines of the Court ’ s case-law (explanatory report, Doc. Parl., 2005-06, no. 51 2478/1, p. 35).", "98. If the request is held to be well-founded a one-year residence permit is issued to the person concerned. The residence permit must be renewed each year. Five years after the lodging of the request, the person concerned acquires permanent residence status and is issued with a residence permit of unlimited duration.", "99. Under paragraph 4 of section 9 ter of the Aliens Act, aliens are excluded from the scope of that section where there are substantial grounds for believing that they have committed any of the acts referred to in section 55/4 of the Act, which provides:", "“An alien shall be excluded from the scope of subsidiary protection where there are substantial reasons for believing:", "(a) that he or she has committed a crime against peace, a war crime or a crime against humanity as defined in the international instruments on the punishment of such crimes;", "(b) that he or she has committed acts contrary to the purposes and principles of the United Nations as set forth in the Preamble and in Articles 1 and 2 of the Charter of the United Nations;", "(c) that he or she has committed a serious crime.", "The first sub-paragraph shall apply to persons who instigate the aforementioned crimes or acts or participate in them in any other manner.”", "100. It emerges from the drafting history of section 9 ter that a seriously ill alien who is excluded from the scope of that section on one of the grounds referred to in section 55/4 will not be removed if his or her state of health is so serious that removal would constitute a breach of Article 3 of the Convention (explanatory report, cited above, p. 36).", "(b) Recent developments in Belgian case-law", "101. The case-law concerning the removal of seriously ill aliens has evolved recently. This case-law concerns the application of section 9 ter, paragraph 1, to aliens who have not been excluded a priori from the scope of that provision. The change in the case-law occurred in response to a change in the practice of the Aliens Office following the introduction by an Act of 8 January 2012 of an admissibility filtering mechanism for “section 9 ter requests”, consisting in confining the application of section 9 ter to situations falling within the ambit of Article 3 of the Convention as interpreted by the Court in its judgment in N. v. the United Kingdom (cited above).", "102. The Aliens Appeals Board responded by observing that section 9 ter of the Act was not limited to systematically requiring the existence of a risk “to the life” of the applicant, since it made provision, in addition to that risk, for two other situations, namely those entailing a real risk to physical well ‑ being and those entailing a real risk of inhuman or degrading treatment (Aliens Appeals Board, judgments nos. 92.258, 92.308 and 92.309 of 27 November 2012). It further held that an immediate threat to life was likewise not an absolute precondition in the Court ’ s case-law for a violation of Article 3, given that other “exceptional” humanitarian circumstances within the meaning of the Court ’ s judgment in D. v. the United Kingdom (cited above) could act as a bar to removal (Aliens Appeals Board, judgments no. 92.393 of 29 November 2012 and no. 93.227 of 10 December 2012). Accordingly, all the circumstances of the case had to be taken into consideration.", "103. On 19 June 2013 a Dutch-speaking Division of the Conseil d ’ État echoed this interpretation of section 9 ter, paragraph 1. It held that, irrespective of the scope of application of Article 3 of the Convention, section 9 ter was clear and applied to situations going beyond a direct threat to the life of the applicant or the existence of a critical condition ( Conseil d ’ État, judgment no. 223.961 of 19 June 2013). In judgments dated 28 November 2013 the same Division expressly found that the Aliens Appeals Board had erred in finding that Article 3 of the Convention could apply to situations other than those involving a serious, critical or terminal condition. However, that error did not mean that the Board ’ s interpretation of section 9 ter, paragraph 1, had been incorrect, as the provision in question went further than Article 3 of the Convention and covered a real risk of inhuman or degrading treatment on account of the absence of appropriate treatment in the country of origin ( Conseil d ’ État, judgments nos. 225.632 and 225.633 of 28 November 2013). On 29 January 2014 the same Division specified that in so far as section 9 ter, paragraph 1, referred to a real risk to life or physical well-being, it corresponded to Article 3 of the Convention ( Conseil d ’ État, judgment no. 226.251 of 29 January 2014).", "104. In the meantime, on 19 November 2013, a French-speaking Division of the Conseil d ’ État had adopted a completely different approach. According to that Division, the legislature had clearly sought to confine the benefit of section 9 ter to aliens who were so “seriously ill” that their removal would amount to a violation of Article 3 of the Convention, and to ensure that the assessment in question was carried out in accordance with the Court ’ s case-law as established in the case of N. v. the United Kingdom, cited above. The fact that section 9 ter covered three specific situations did not mean that its scope of application differed from that of Article 3. The three categories of illness concerned, where they attained a minimum level of severity – which had to be high – were apt to satisfy the requirements of Article 3. The Conseil d ’ État went on to quash the Aliens Appeals Board ’ s judgments of 27 November 2012 (see paragraph 102 above) on the grounds that they had unduly extended the scope of section 9 ter ( Conseil d ’ État, judgments nos. 225.522 and 225.523 of 19 November 2013).", "105. The divergence in the case-law of the Conseil d ’ État was resolved on 16 October 2014 when the French-speaking Division adopted the same interpretation as the Dutch-speaking Division. Referring to the Opinion of Advocate General Bot of the Court of Justice of the European Union (“the CJEU”) in the case of M ’ Bodj (C-542/13, see paragraph 121 below), which was pending at the time, to the effect that section 9 ter of the Aliens Act afforded protection going beyond the subsidiary protection provided for by Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”), the Division proposed an “autonomous” interpretation of section 9 ter, paragraph 1, in so far as that provision concerned situations of inhuman or degrading treatment on account of the lack of appropriate treatment in the receiving country ( Conseil d ’ État, judgment no. 228.778 of 16 October 2014).", "106. Following the clarification of the case-law of the Conseil d ’ État, the Aliens Appeals Board harmonised its own case-law in five judgments given by the full Board on 12 December 2014 (Aliens Appeals Board, judgments nos. 135.035, 135.037, 135.038, 135.039 and 135.041 of 12 December 2014).", "107. This “autonomous” interpretation of section 9 ter represents the current state of Belgian positive law. The above-mentioned judgments of the Aliens Appeals Board (see paragraph 106 above) contemplate two scenarios in which the issuing of a residence permit may be justified because of illness. The first scenario concerns aliens who are currently suffering from a life ‑ threatening illness or a condition posing a current threat to their physical integrity; the alleged risk to life or physical integrity must be imminent and the alien concerned must be unfit to travel as a result. The second concerns aliens who risk being subjected to inhuman and degrading treatment if no appropriate treatment for their illness or condition exists in the receiving country. In this case, although it does not pose an imminent threat to life, the illness or condition in question must nevertheless attain a certain degree of seriousness.", "B. Removal measures and re-entry bans for breaches of public order", "108. The removal of aliens from Belgium is governed primarily by the provisions of section 7 of the Aliens Act, which at the material time read as follows:", "“Without prejudice to more favourable provisions contained in an international treaty, the Minister or his or her representative may order an alien who is not authorised or has not been given permission to remain for more than three months or to settle in the Kingdom to leave the country by a set date:", "(1) if the person concerned is resident in the Kingdom without being in possession of the documents required under section 2;", "(2) if he or she has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded;", "(3) if his or her conduct is deemed to pose a potential threat to public order or national security; ...", "In such cases the Minister or his or her representative may remove the person concerned immediately if they deem it necessary.", "The alien concerned may be detained for this purpose for the time strictly necessary to enforce the measure. The length of such detention may not exceed two months.", "Nevertheless, the Minister or his or her representative may extend the period of detention by two months where the steps necessary to remove the alien have been taken within seven working days of his or her placement in detention and have been prosecuted with all due diligence, and where the alien ’ s physical removal within a reasonable period remains possible.", "After one extension has been granted, the decision referred to in the preceding paragraph may be taken only by the Minister.", "After five months in detention the alien concerned must be released.", "Where the protection of public order or national security so requires, the period of detention may be extended by successive one-month periods after the time-limit referred to in the preceding paragraph has expired; however, the total period of detention may not on this account exceed eight months.”", "109. According to the case-law of the Conseil d ’ État, the examination of the medical situation of an alien facing removal whose request for leave to remain has been rejected should be carried out, as applicable, at the time of enforcement of the removal measure rather than at the time of its issuance ( Conseil d ’ État, judgment no. 11.427 of 9 July 2015).", "110. The provisions of the Aliens Act relating to the removal of aliens on account of their personal conduct, and to re-entry bans, read as follows:", "Section 20", "“Without prejudice to more favourable provisions laid down in an international treaty or to section 21, the Minister may deport aliens who are not settled in the Kingdom if they have breached public order or national security or have failed to comply with the statutory conditions of their residence. Where, under the terms of an international treaty, no such measure may be taken until the alien concerned has been questioned, the opinion of the Aliens Advisory Board must be sought before a deportation order is issued. The other cases in which a deportation order may be issued only after consultation of the Aliens Advisory Board shall be determined by royal decree approved by the Cabinet.", "Without prejudice to section 21, paragraphs 1 and 2, aliens who are settled in the Kingdom or have long-term residence status and who have committed a serious breach of public order or national security may be expelled by the Crown, after consultation of the Aliens Advisory Board. The expulsion order must be discussed by the Cabinet if the measure is based on the individual ’ s political activities.", "Deportation and expulsion orders must be based exclusively on the personal conduct of the alien concerned. The fact that he or she has made lawful use of the freedom to manifest opinions or the freedom of peaceful assembly or of association cannot serve as grounds for such an order.”", "Section 74/11", "“1. The duration of the re-entry ban shall be determined in the light of all the particular circumstances of each case.", "The removal order shall be accompanied by a re-entry ban of no more than three years ’ duration, in the following cases:", "(1) where no time has been allowed for voluntary departure; or", "(2) where a previous removal order has not been enforced.", "The maximum three-year period referred to in the second sub-paragraph shall be increased to a maximum of five years where the third-country national has used fraud or other unlawful means in order to obtain or preserve his or her right of residence.", "The removal order may be accompanied by a re-entry ban of more than five years where the third-country national presents a serious threat to public order or national security.", "2. The Minister or his or her representative shall refrain from imposing a re-entry ban where the residence of a third-country national is terminated in accordance with section 61/3, third paragraph, or 61/4, second paragraph, without prejudice to the second sub-paragraph of paragraph 1(2), provided that the person concerned does not pose a threat to public order or national security.", "The Minister or his or her representative may decide not to impose a re-entry ban in individual cases on humanitarian grounds.", "3. The re-entry ban shall enter into force on the date of notification. It must not infringe the right to international protection as defined in sections 9 ter, 48/3 and 48/4.”", "C. Appeals against the decisions of the administrative authorities", "111. The Aliens Appeals Board is an administrative court established by the Act of 15 September 2006 reforming the Conseil d ’ État and setting up an Aliens Appeals Board. The duties, jurisdiction, composition and functioning of the Aliens Appeals Board are governed by the provisions of Part I bis of the Aliens Act as inserted by the aforementioned Act of 15 September 2006. The procedure before the Aliens Appeals Board is laid down by a royal decree of 21 December 2006.", "112. The jurisdiction of the Aliens Appeals Board is twofold. Firstly, in proceedings concerning decisions of the Commissioner General for Refugees and Stateless Persons relating to the granting of refugee status and the various categories of subsidiary protection, the Board has full jurisdiction and the appeal has automatic suspensive effect. The Aliens Appeals Board may admit new evidence and all the issues of fact and law are transferred to it. In such cases it may uphold, set aside or amend the decision. Secondly, the decisions of the Aliens Office concerning residence and removal may be appealed against by way of an application to set aside for failure to comply with essential procedural requirements or with statutory formalities required on pain of nullity, or on the grounds that the Aliens Office exceeded or abused its powers.", "113. The application to set aside does not automatically suspend enforcement of the measure complained of. However, the Aliens Act provides that it may be accompanied by a request for a stay of execution of the measure, either under the extremely urgent procedure, which itself automatically suspends enforcement of the measure, or under the “ordinary” procedure.", "114. At the time of the events in the present case, requests for a stay of execution were governed by the provisions of section 39/82 of the Aliens Act, which provided as follows:", "“1. Where a decision by an administrative authority is subject to an application to set aside under section 39/2, the Board shall have sole jurisdiction to order a stay of execution.", "A stay of execution shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned decision of the President of the division hearing the application or the aliens appeals judge whom he or she designates for the purpose.", "In cases of extreme urgency a stay of execution may be ordered on an interim basis without evidence having been heard from some or any of the parties.", "Applicants who request a stay of execution must opt for either the extremely urgent procedure or the ordinary procedure. They may not, simultaneously or consecutively, either seek a second time to have the third sub-paragraph applied or re-apply for a stay of execution in the application referred to in paragraph 3, on pain of inadmissibility.", "By way of derogation from the fourth sub-paragraph and without prejudice to paragraph 3, the rejection of a request for a stay of execution under the extremely urgent procedure shall not prevent the applicant from subsequently requesting a stay of execution under the ordinary procedure, where the application under the extremely urgent procedure was rejected on the grounds that the extreme urgency of the situation was not sufficiently established.", "2. A stay of execution may be ordered only if the grounds relied on are sufficiently serious to warrant setting aside the impugned decision, and if immediate enforcement of the decision is liable to cause serious, virtually irreparable damage.", "Judgments ordering a stay of execution may be recorded or amended at the request of the parties.", "3. Except in cases of extreme urgency the request for a stay of execution and the application to set aside must be submitted in a single document.", "The title of the application should specify whether an application to set aside is being lodged or a request for a stay of execution together with an application to set aside. Failure to comply with this formality will result in the application being treated solely as an application to set aside.", "Once the application to set aside has been lodged any subsequent request for a stay of execution shall be inadmissible, without prejudice to the possibility for the applicant to lodge, in the manner referred to above, a fresh application to set aside accompanied by a request for a stay of execution, if the time-limit for appeals has not expired.", "The application shall include a statement of the grounds and facts which, in the applicant ’ s view, justify a stay of execution or an order for interim measures, as applicable.", "Any order for a stay of execution or other interim measures issued prior to the lodging of the application to set aside the decision shall be immediately lifted by the Division President who issued it or by the aliens appeals judge designated by him or her, if the judge observes that no application to set aside setting out the grounds for such measures has been lodged within the time-limit specified by the procedural regulations.", "4. The Division President or the aliens appeals judge designated by him or her shall rule on the request for a stay of execution within thirty days. If a stay of execution is ordered a ruling shall be given on the application to set aside within four months of delivery of the judicial decision.", "If the alien in question is the subject of a removal order or an order refusing admission which is to be enforced imminently, and has not yet lodged a request for a stay of execution, he or she may request a stay of execution of the decision under the extremely urgent procedure. If he or she lodged a request under the extremely urgent procedure in accordance with the present provision no later than five days, but no earlier than three working days, following notification of the decision, the request shall be examined within forty-eight hours of its receipt by the Board. If the Division President or the aliens appeals judge hearing the case does not give a decision within that time, the First President or the President shall be informed and shall take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. He or she may also examine the case and take the decision. If no stay of execution is granted the measure shall again become enforceable.", "...”", "115. If the person concerned opted for the “ordinary” procedure in requesting a stay of execution, he or she could apply for interim measures during the proceedings, as a matter of extreme urgency if necessary, in accordance with section 39/84 of the Act.", "116. For a request for a stay of execution or for interim measures to be granted as a matter of extreme urgency, the enforcement of the removal measure had to be imminent (section 39/82, paragraph 4, second sub ‑ paragraph, and section 39/85, first sub-paragraph, of the Aliens Act). The Aliens Appeals Board took the view that, for the danger to be imminent, the alien in question had to be subject to a coercive measure aimed at securing his or her departure from the country, that is to say, to an order for his or her detention in a closed facility with a view to removal (see, among many other authorities, judgment no. 456 of 27 June 2007 and judgment no. 7512 of 20 February 2008).", "117. The Aliens Act was amended by the Act of 10 April 2014 laying down miscellaneous provisions concerning the procedure before the Aliens Appeals Board and the Conseil d ’ État. In particular, this Act reforms the procedure governing requests for a stay of execution under the extremely urgent procedure in order to take account of the Court ’ s judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011) and the subsequent rulings of the Aliens Appeals Board (see, in particular, the seven judgments of the full Board of 17 February 2011 (nos. 56.201 to 56.205, 56.207 and 56.208) and of the Constitutional Court ( judgment no. 1/2014 of 16 January 2014 setting aside part of the Act of 15 March 2012 amending the Aliens Act, which introduced a fast-track procedure for asylum seekers from “safe” third countries).", "118. Under the new provisions of sections 39/82 and 39/85, a request for a stay of execution under the extremely urgent procedure must be submitted within ten days, or five days if the impugned removal order is not the first issued against the person concerned. The criteria for determining extreme urgency remain unchanged. Removal must be imminent, a situation which applies first and foremost to persons in detention. However, the Act does not rule out the possibility that other situations may justify recourse to the extremely urgent procedure. Under the reformed provisions a risk of serious and irreparable harm is presumed where the alleged violation concerns rights from which no derogation is possible, such as those provided for by Articles 2, 3 and 4 of the Convention.", "119. An administrative appeal on points of law may be lodged with the Conseil d ’ État against a judgment of the Aliens Appeals Board dismissing an application to set aside. The appeal does not have suspensive effect.", "III. EUROPEAN UNION LAW", "120. The issue of the threshold of severity which an illness must attain in order to justify the granting of a residence permit on medical grounds was recently raised before the CJEU. In the context of two cases – Mohamed M ’ Bodj v Belgian State (18 December 2014, Case C ‑ 542/13) and Centre public d ’ action sociale d ’ Ottignies-Louvain-La-Neuve v Moussa Abdida (18 December 2014, Case C-562/13) – the CJEU was called upon to address the relationship between section 9 ter of the Aliens Act and European Union (“EU”) law.", "121. In M ’ Bodj (paragraphs 39-47), the CJEU held that the granting of leave to reside on medical grounds to persons who did not satisfy the essential requirements making them eligible for subsidiary protection under the Qualification Directive could not be regarded as a more favourable standard for the purposes of Article 3 of the Directive in the context of such subsidiary protection, and thus fell outside the scope of application of the Directive. Even taking into account the case-law established in N. v. the United Kingdom, according to which, in very exceptional cases concerning the expulsion of a seriously ill alien, humanitarian grounds could be invoked in order to trigger the protection of Article 3 of the Convention, the risk of deterioration in the health of a third-country national suffering from a serious illness as a result of the absence of appropriate treatment in the receiving country was not sufficient, according to the CJEU, to warrant that person being granted subsidiary protection unless the harm took the form of conduct on the part of a State or non-State third party.", "122. In the case of Abdida (paragraphs 33 and 38-63), the CJEU held that while leave to reside on medical grounds did not come within the scope of the Qualification Directive, decisions refusing such leave were covered by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (the “Return Directive”). As a return decision, a decision refusing leave to reside on medical grounds was subject to observance of the safeguards provided for by the Return Directive and by the Charter of Fundamental Rights of the EU. Article 19 § 2 of the Charter stated that no one could be removed to a State where there was a serious risk that he or she would be subjected to torture or other inhuman or degrading treatment or punishment. Bearing in mind that under Article 52 § 3 of the Charter, the rights enshrined therein had, as a minimum, the same meaning and scope as the equivalent rights guaranteed by the Convention, the CJEU inferred from the case-law established in N. v. the United Kingdom that the decision to remove an alien suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness were inferior to those available in the returning State might raise an issue under Article 3 of the Convention in very exceptional cases, where the humanitarian grounds against removal were compelling. Those very exceptional cases were characterised, in the CJEU ’ s view, by the seriousness and the irreparable nature of the harm that might be caused by the removal of a third-country national to a country in which there was a serious risk that he or she would be subjected to inhuman or degrading treatment. The CJEU further held that remedies in respect of a decision refusing leave to reside on medical grounds must have suspensive effect, in accordance with the Strasbourg Court ’ s case-law. This implied that provision had to be made for the applicant ’ s basic needs to be met pending a ruling on his or her appeal in accordance with the Return Directive.", "IV. OTHER RELEVANT MATERIALS", "123. Basing its findings, inter alia, on the information referred to in the Chamber judgment (paragraphs 90-92), the European Committee of Social Rights assessed the conformity of the Georgian health-care system with Article 11 § 1 of the European Social Charter ( Right to protection of health, Removal of the causes of ill-health) and adopted the following conclusions (Conclusions 2015, Georgia, Article 11 § 1):", "“...", "The Committee takes note of the information submitted by Georgia in response to the conclusion that it had not been established that there was a public health system providing universal coverage (Conclusions 2013, Georgia).", "The Committee recalls that the health care system must be accessible to everyone. The right of access to care requires inter alia that the cost of health care should be borne, at least in part, by the community as a whole (Conclusions I (1969), Statement of Interpretation on Article 11) and the cost of health care must not represent an excessively heavy burden for the individual. Out-of-pocket payments should not be the main source of funding of the health system (Conclusions 2013, Georgia).", "The report states that on 28 February 2013 a Universal Health Care Programme was launched for persons without medical insurance. The first phase of the programme ensured citizens with a basic medical package, including primary health care and emergency hospitalisation. Since 1 July 2013 the programme has been expanded to include more services of primary health care and emergency hospitalisation, emergency outpatient care, planned surgeries, treatment of oncological diseases and child delivery. According to recent data (April 2014), all citizens of Georgia are now provided with basic healthcare, approximately 3.4 million people in the framework of the Universal Health Care Programme, 560,000 people are beneficiaries of the State Health Insurance Programme and about 546,000 people have a private or corporate insurance.", "The Committee notes that the Government has declared health care as a priority field, resulting in funding for state health care programmes almost doubling: from 365 million GEL in 2012 (€ 139 million) to 634 million GEL in 2013 (€ 241 million). State spending as a share of GDP has increased from 1.7% to 2.7% and as a share of the state budget from 5% to 9%.", "However, the Government acknowledges that despite improvements the cost of medication remains high amounting to 35% of state expenditure on health care. The report does not provide information on out-of-pocket payments as a share of total spending on health care, but according to WHO data it was still between 60% and 70% in 2011 (compared to about 16% on average for EU-27). Very limited coverage of medication costs is now provided under the Universal Health Care Programme, for example for emergency care, chemotherapy and radiotherapy, but the general lack of coverage of medication costs is a major point of dissatisfaction among beneficiaries of the programme according to a recent evaluation (Universal Healthcare (UHC) Program Evaluation by the USAID Health System Strengthening Project, April 2014). The Committee notes the examples provided by the Government of coverage of certain medication costs under the State Health Insurance Programme.", "The report states that as a result of deregulation measures the pharmaceutical market has become free and competitive, however no evidence is provided to show that the price of medication has become generally more accessible, especially for vulnerable groups and those with chronic conditions.", "While the Committee considers that the Universal Health Care Programme is a positive step forward and that the role of out-of-pocket payments as a source of funding of the health system may have been reduced somewhat, it still considers that the high proportion of out-of-pocket payments for health care, and in particular the high medication costs, represent too high a burden for the individual effectively being an obstacle to universal access to health care. The situation is therefore not in conformity with the Charter.", "Conclusion", "The Committee concludes that the situation in Georgia is not in conformity with Article 11§1 of the Charter on the ground that out-of-pocket payments in general and medication costs in particular represent too high a burden for the individual effectively being an obstacle to universal access to health care.”", "THE LAW", "I. PRELIMINARY ISSUES", "124. Following the applicant ’ s death, his relatives expressed the wish to pursue the proceedings (see paragraph 1 above).", "125. The respondent Government did not submit any observations on this issue.", "126. The Court normally permits the next-of-kin to pursue an application, provided he or she has a legitimate interest, where the original applicant has died after lodging the application with the Court (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016 ). In the present case, the Court takes note of the wish expressed by the applicant ’ s family (see paragraph 1, above) to pursue the proceedings. Having regard to its conclusion in paragraph 133 below, however, it considers that it is unnecessary to determine whether the family have a legitimate interest in that regard.", "127. The Court must nevertheless ascertain whether, in view of the applicant ’ s death and the nature of the alleged violations, the application should be struck out of the list of cases or whether, on the contrary, there are special circumstances requiring its continued examination pursuant to Article 37 § 1 in fine.", "128. In that connection, Article 37 § 1 of the Convention provides:", "“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "129. The Court reiterates that the human rights cases before it generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant ’ s death should be continued (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003 ‑ IX, and Malhous (dec.), cited above).", "130. The Court has repeatedly stated that its judgments serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the States ’ observance of the engagements undertaken by them. Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States (see Karner, cited above, § 26).", "131. The Court notes that the present case was referred to the Grand Chamber on 20 April 2015 in accordance with Article 43 of the Convention, which provides that cases can be referred if they raise “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”.", "132. The Court observes that there are important issues at stake in the present case, notably concerning the expulsion of aliens who are seriously ill. Thus, the impact of this case goes beyond the particular situation of the applicant, unlike most of the similar cases on expulsion decided by a Chamber (compare F.G. v. Sweden [GC], no. 43611/11, § 82, ECHR 2016).", "133. Having regard to the foregoing, the Court finds that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention.", "II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "134. The applicant alleged that substantial grounds had been shown for believing that if he had been expelled to Georgia he would have faced a real risk there of inhuman and degrading treatment contrary to Article 3 of the Convention and of a premature death in breach of Article 2. Those Articles provide:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The Chamber judgment", "135. The Chamber began by examining whether the applicant ’ s removal to Georgia would breach Article 3 of the Convention (see paragraphs 117 ‑ 26 of the Chamber judgment).", "136. It observed that, according to the case-law established in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008 ), Article 3 protected aliens suffering from an illness against removal only in very exceptional cases, where the humanitarian grounds against the removal were compelling. The fact that the individual ’ s circumstances, including his life expectancy, would be significantly reduced if he were to be removed did not constitute such grounds. In the instant case, the illnesses from which the applicant suffered were all stable and under control as a result of the treatment received in Belgium; he was fit to travel and his life was not in imminent danger.", "137. The Chamber noted that medication to treat the applicant ’ s illnesses existed in Georgia. It acknowledged that its accessibility was not guaranteed and that, owing to a shortage of resources, not all the persons concerned received all the medicines and treatment they required. Nevertheless, in view of the fact that the applicant would not be left wholly without resources if he were to return, the fact that the Belgian authorities had been providing him with medical assistance while the case was pending before the Court and the fact that Georgia was a Contracting Party to the Convention, the Court held that, as matters stood, there were no exceptional circumstances precluding the applicant ’ s removal.", "138. The Chamber considered that the examination of the applicant ’ s complaints from the standpoint of Article 2 did not lead to a different conclusion (see paragraph 127 of the Chamber judgment).", "B. The parties ’ observations before the Grand Chamber", "1. The applicant", "139. The applicant submitted that, in keeping with the Court ’ s case-law as established in the judgments in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011) and Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)), the alleged violation of Article 3 of the Convention had to be examined in concreto and in the light of all the facts of the case, taking into consideration the accessibility of treatment in the country of destination and the particular vulnerability of the person concerned.", "140. The applicant ’ s particular vulnerability resulted primarily from his state of health. His leukaemia had reached the most serious stage, Binet stage C. He had already undergone numerous courses of chemotherapy and the illness put him at risk of severe complications which called for regular monitoring in a specialised setting. He was being treated with a drug – Ibrutinib – which was very expensive, costing around EUR 6,000 per month, and the dosage of which had to be continually adjusted to his treatment for hepatitis C. The latter had recently become active again following a relapse in 2012 and 2013 and also required very expensive treatment costing EUR 700 per day. As soon as his overall condition permitted, it was planned to treat him by means of a donor transplant, at an estimated cost of EUR 150,000. This was his only hope of a cure, and the search was under way for a compatible unrelated donor. The applicant ’ s condition was further weakened by the repeated secondary infections caused by his chronic obstructive pulmonary disease, which had become severe and was not being monitored. In addition, the applicant had had three fingers amputated and his left arm was paralysed.", "141. Besides the fact that, according to his doctor, neither Ibrutinib nor a donor transplant would have been available in Georgia, the applicant had had no guarantee that he would have had access in practice to life-saving treatment, given the proven shortcomings of the Georgian health-care system. In 2008 the Law on compulsory health insurance had been replaced by a two-tier system. People who could afford it were encouraged to take out private insurance and to avail themselves of the care provided by the hospitals that had gradually been privatised. Meanwhile, the least well-off (estimated at 20% of the population) were eligible in principle for free basic health care under a special universal insurance scheme. However, in practice, owing to an ineffective system for determining eligibility, the health-care costs of around half of the least well-off were still not covered. In addition, the provision of care and infrastructure to the least well-off was very limited.", "142. Moreover, in the applicant ’ s submission, the burden of proving the existence of real and practical access to health care in Georgia lay with the Belgian authorities, who had greater investigative resources.", "143. More specifically, it was for the Belgian authorities, in the context of the request for regularisation based on section 9 ter of the Aliens Act, to assess the risk of a breach of Article 3 of the Convention in the light of the information available to them on the applicant ’ s personal, family and medical situation and the shortcomings of the Georgian health-care system, and not to deprive the applicant as a matter of principle of the only possibility open to him of asserting a fundamental right.", "144. A fortiori, even assuming that the Belgian State had examined the request for leave to remain on the merits, it could not simply have presumed that the applicant would be treated in accordance with the requirements of the Convention. As made clear by the judgment in M.S.S. v. Belgium and Greece, the fact that Georgia was a Contracting Party to the Convention did not mean that it could be presumed ipso facto that Georgia could not be held responsible for breaches of the Convention. Acceptance of the treaties guaranteeing respect for fundamental rights was not sufficient to afford adequate protection against the risk of ill-treatment where, as in the present case, reliable sources reported practices on the part of the authorities, or tolerated by them, that were manifestly in breach of the Convention.", "145. On the contrary, it was for the Belgian authorities to make enquiries and to satisfy themselves in advance that the Georgian authorities could actually guarantee in practical terms that the applicant would receive the health care he needed in order to survive and that his illness would be treated in a manner compatible with human dignity. Access to medical care must not be theoretical but must be real and guaranteed.", "146. Since the Belgian State had failed to contribute, at the time of the refusal of the applicant ’ s request for leave to remain, to verifying the accessibility in Georgia, in real and practical terms, of the treatment which the applicant needed, and in the absence of guarantees in that regard, its responsibility under Article 3 of the Convention would have been engaged if it had proceeded with the applicant ’ s removal to Georgia. If removed he would have been exposed to a risk of inhuman or degrading treatment and an earlier death owing to the withdrawal of the intensive and specialised treatment he had been receiving in Belgium, and to the end of any hope of receiving a donor transplant. In addition, there was the impact which his removal would have had on his family. All of these circumstances could be regarded by the Court as “exceptional” within the meaning of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III) and N. v. the United Kingdom (cited above).", "147. The applicant further submitted that the fact that his irregular residence status had continued for over seven years after he had requested leave to remain on medical grounds, without his request having been examined on the merits, had played a major part in placing him in a precarious and vulnerable situation.", "148. In sum, the applicant had been in greater need of protection owing to his particular vulnerability linked to his state of health, the stakes in terms of his life and physical well-being, his emotional and financial dependency and the existence of his family ties in Belgium. The Belgian State ’ s responsibility under Article 3 of the Convention stemmed from the fact that it was proceeding with the applicant ’ s removal without taking these factors into account, thereby demonstrating a lack of respect for his dignity and placing him at serious risk, in the event of his return to Georgia, of a severe and rapid deterioration in his state of health leading to his swift and certain death.", "149. The applicant requested the Court to go beyond its findings in N. v. the United Kingdom and to define, in the light of these considerations, a realistic threshold of severity that was no longer confined to securing a “right to die with dignity”. He relied in that connection on the recent developments in the case-law of the Belgian courts, which had distanced themselves from the findings in N. v. the United Kingdom and now afforded more extensive protection than that provided for under Article 3 of the Convention (see paragraphs 101 et seq. above).", "2. The Belgian Government", "150. The Government submitted that, although it was acknowledged in the Court ’ s case-law that the responsibility of a Contracting Party could be engaged under Article 3 on account of the expulsion of an alien and his exposure to a risk of a breach of his economic and social rights, it nevertheless had to be taken into consideration that, where the person concerned suffered from an illness, neither the returning State nor the receiving State could be held directly responsible for the shortcomings of the health-care system and the repercussions on the health of the individual concerned. The case-law demonstrated that in order for the threshold of severity required by Article 3 to be attained in such cases the extreme nature of the applicant ’ s living conditions or his or her extreme vulnerability had to be established. The circumstances contrary to human dignity had to be exceptional to such a degree that the person concerned, owing to his or her critical condition prior to removal, would inevitably be placed in a situation of intense suffering solely on account of the removal procedure and the complete absence of care and treatment in the receiving country. Human rights were not synonymous with compelling humanitarian considerations and a general obligation to provide social welfare assistance could not be inferred from Article 3 even in the name of human dignity.", "151. In view of this case-law it could not be concluded that the criteria for engaging the responsibility of the Belgian State had been met in the present case.", "152. With reference, firstly, to developments in the applicant ’ s state of health, the Government argued that while his overall condition had deteriorated since the time of the Chamber judgment, mainly as a result of collateral diseases, and his condition was still life-threatening, the illnesses from which the applicant suffered had been kept under control for a long time by the medicines being administered to him in Belgium. According to the report of the Aliens Office ’ s medical officer of 23 June 2015, the applicant ’ s condition could not be regarded as critical, he was fit to travel, his illnesses were not directly life-threatening and none of his vital organs was in a condition that placed his life in immediate danger.", "153. Furthermore, since the applicant had failed to provide more detailed information concerning the content of the study in the context of which his leukaemia was being treated, it was difficult to establish any objective basis for his general practitioner ’ s assertion that the only option at this stage had been the administration of Ibrutinib followed by a donor transplant and that in the absence of that treatment the applicant ’ s life expectancy would have been three months. Other factors entered into the equation, such as the increase in life expectancy as a result of the medication, the feasibility of the operation, which itself depended on how the applicant ’ s general condition evolved, and the low success rate of the operation. In sum, this was a private initiative on the part of the applicant ’ s general practitioner and appeared to be a hypothetical, strategic choice linked to research considerations. It was questionable whether there was a need to ensure its continuation. As to the applicant ’ s other illnesses, it had not been possible to assess their state of advancement on the basis of the medical information provided.", "154. The Government submitted that, in view of this lack of clarity and of the complex and risky nature of the transplant procedure, consideration might have been given, on the basis of the information in the medical file, to abandoning the idea of a donor transplant and instead continuing to treat the applicant with Ibrutinib in Georgia under the supervision of a haematology department.", "155. The next issue was whether there had been reason to believe that, following his removal, the applicant would have faced a serious risk of inhuman and degrading treatment. The Government argued that the burden of proof in that regard depended on whether the threshold of severity defined in D. v. the United Kingdom and N. v. the United Kingdom (both cited above) was changed. If the current case-law was maintained, the disparity in the level of care between the returning State and the receiving State was relevant only if the person ’ s condition was critical at the time of his or her expulsion. If, on the other hand, it was now a question of providing evidence, not of the conditions in which the person concerned would die but of the conditions in which he or she should be kept alive, the burden of proof shifted to the living conditions in the receiving State. This shift raised a number of issues.", "156. One of the factors to be taken into consideration was the exact personal situation of the individual concerned and in particular the ties he or she had maintained with his or her country of origin and the resources available to him or her in order to continue treatment. The applicant had not provided any detailed information on that subject. Another factor was the situation of the social welfare system in the receiving State. The assessment of that situation was, by definition, complex and general and would not allow a specific treatment to be identified. Furthermore, if the sole criterion was the prospect of survival, it had to be ascertained at what stage in the applicant ’ s treatment his expulsion should be deemed contrary to Article 3. Bearing in mind the evolving and multi-faceted nature of medical techniques, this decision was largely arbitrary. If, as the applicant had suggested, he should have been considered vulnerable and thus recognised as having victim status on account of the deterioration of his state of health, the question then arose as to what differentiated him from other Georgian nationals suffering from illness who were reliant on the Georgian health ‑ care system. It would be difficult to argue that the difference lay in his unlawful residence and his medical treatment in Belgium. Instead of producing clear answers, these questions gave rise to general assumptions based on speculation which were insufficient to establish the State ’ s international responsibility beyond any reasonable doubt.", "157. In the Government ’ s view, even if this speculative aspect could have been overcome by obtaining assurances from the receiving State, as mentioned by the Court in Tatar v. Switzerland (no. 65692/12, 14 April 2015), such assurances should be deemed to have existed in the present case and to have been sufficient. The applicant had been medically fit to travel and the local authorities would have been informed of the specific nature of his condition or would have received a list of the medication needed. No more specific guarantees had been required in the absence of any indication that the Georgian authorities would have treated the applicant less favourably than the rest of the Georgian population or that he would have been unable to obtain medical treatment that took account of the specific features of his illness. In that connection, it might have been possible to continue to treat the applicant with Ibrutinib by having his medication sent through the post under the supervision of his doctor and with the assistance of doctors in Georgia. The Government added that if a donor transplant had proved possible they would not have taken any steps to prevent it or to secure the applicant ’ s removal while he was in hospital.", "158. Lastly, account had to be taken of the fact that the applicant would have been removed to Georgia, a Contracting Party to the Convention, and that if he had been shown to be particularly vulnerable, Belgium ’ s responsibility could have been engaged only if it had been established that the Georgian State would manifestly fail to comply with its Convention obligations, for instance if it had been shown that the applicant would be entirely dependent on public assistance and would be in a state of deprivation contrary to human dignity. In the absence of any indication to that effect it should have been presumed that the Georgian authorities would comply with the requirements of the Convention. Should that have proved not to be the case, it would have been up to the applicant to apply to the Court under Article 34 of the Convention.", "C. Observations of the third-party interveners", "1. The Georgian Government", "159. The Georgian Government submitted that, since 2012, they had implemented an extensive programme of universal medical cover which had resulted to date in 90% of the population being covered in terms of primary health care. If the applicant had returned to Georgia he would have had access to that universal cover in the same way as the local residents.", "160. Furthermore, the Georgian health-care system could have provided appropriate treatment for the illnesses from which the applicant had suffered, in terms of both medical infrastructure and health-care personnel. The health care provided conformed to international standards and was approved by the domestic rules.", "161. With regard to the treatment of tuberculosis, a State tuberculosis management programme had been approved by Decree no. 650 of 2 December 2014, which provided for free TB examinations and medication for Georgian citizens, stateless persons resident in Georgia, prisoners and any person in the country identified as a TB carrier. New experimental treatments for tuberculosis had been introduced in Georgia over the past several years and were available on the market in sufficient quantities. The applicant would be able to take advantage of them.", "162. With regard to leukaemia, the Georgian Government submitted that the programme of universal medical cover covered diagnosis, treatment (including chemotherapy and radiotherapy), medical examinations and medication for persons living below the poverty threshold who were suffering from oncological diseases. Between 2013 and 2015, 859 patients with chronic lymphocytic leukaemia had received specialised chemotherapy. This was administered in five clinics in Georgia which were equipped with all modern medical facilities.", "163. The main improvements made since the information provided at the Chamber stage concerned hepatitis C. Whereas, previously, hospital treatment for patients presenting with a significant viral load and/or cirrhosis had only been covered at 50% of an amount fixed by the Government, and medicines had not been reimbursed at all, since 20 April 2015 socially vulnerable families were entitled to 70% of the diagnostic costs and other patients to 30% of the costs. Under a special programme for residents of the city of Tbilisi, 100% cover was provided. Furthermore, access to medicines was free of charge “for all patients involved in the treatment protocol on the basis of a decision by a special commission”. Finally, a pharmaceutical company had supplied Georgia with doses of a new antiretroviral treatment involving the drugs Solvadi and Harvoni, which could have been administered to the applicant if he had returned.", "164. Lastly, with regard to chronic obstructive pulmonary disease, the Georgian Government stated that all modern forms of basic treatment were available in Georgia. There were also several hospitals in Tbilisi which treated this illness. Any surgery that might be needed would be covered by the programme of universal medical cover.", "2. The Human Rights Centre of Ghent University", "165. According to the Human Rights Centre, the present case afforded a unique opportunity to depart from the excessively restrictive approach adopted by the Court in N. v. the United Kingdom with regard to the expulsion of persons suffering from serious illness.", "166. The intervener began by arguing that this approach contrasted with the general case-law concerning potential violations of Article 3 of the Convention.", "167. Hence, in the judgment in Pretty v. the United Kingdom (no. 2346/02, § 52, ECHR 2002 ‑ III), the Court had indicated on what grounds and to what extent the responsibility of the Contracting State could be engaged. The Court had observed the connection between a naturally occurring illness and its exacerbation by the measure for which the authorities could be held responsible. However, in N. v. the United Kingdom, while the Court had still referred to naturally occurring illness, it had not linked it to the measure taken by the authorities that would exacerbate the illness, but to the lack of sufficient resources to deal with it in the receiving country, from which it had inferred that the alleged future harm did not engage the direct responsibility of the Contracting State.", "168. However, in cases concerning the expulsion of persons suffering from serious illness, the event that triggered the inhuman and degrading treatment was the intentional removal of the persons concerned from a place where they could obtain life-saving treatment to a place where they could not, thereby exposing them to a near-certain but avoidable risk of suffering and death that engaged the State ’ s responsibility. The Court had consistently acknowledged that in cases where there were serious reasons for believing that the person concerned, if removed, faced a risk of being subjected to treatment contrary to Article 3, the absolute nature of that provision prohibited the Contracting Parties from proceeding with the person ’ s removal.", "169. In N. v. the United Kingdom the Court had also based its reasoning on the “search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights” and on the observation that a finding of a violation “would place too great a burden on the Contracting States”. Such an approach was in glaring contradiction with the case-law arising out of the judgment in Saadi v. Italy ([GC], no. 37201/06, ECHR 2008), in which the Court had clearly rejected the idea of conducting a balancing exercise or applying a test of proportionality in order to assess whether an applicant ’ s removal was compatible with Article 3.", "170. The intervener therefore suggested opting for an alternative to the criteria established in N. v. the United Kingdom, one that would be compatible with the absolute nature of the prohibition contained in Article 3. This would entail examining carefully all the foreseeable consequences of removal in order to determine whether the reduction in the life expectancy of the persons concerned and the deterioration in their quality of life would be such that the threshold of severity required by Article 3 was attained. The parameters to be taken into consideration would be, in addition to the state of health of the persons concerned, the appropriateness or otherwise, in terms of quality and promptness, of the medical treatment available in the receiving State and whether it was actually accessible to the individuals concerned. This last criterion could be assessed taking into account the actual cost of treatment, the level of family support available to the persons concerned, the distance they would have to travel in order to have access to the treatment and specific factors linked to their state of health that would heighten their vulnerability.", "171. Lastly, the intervener proposed that Article 3 of the Convention be found to impose a procedural obligation on the domestic authorities in the expelling State requiring them to seek or obtain assurances from the receiving State that the persons concerned would actually have access to the treatment they needed and thus be protected against treatment contrary to Article 3.", "D. The Court ’ s assessment", "1. General principles", "172. The Court reiterates that Contracting States have the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see N. v. the United Kingdom, cited above, § 30). In the context of Article 3, this line of authority began with the case of Vilvarajah and Others v. the United Kingdom (30 October 1991, § 102, Series A no. 215).", "173. Nevertheless, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Saadi, cited above, § 125; M.S.S. v. Belgium and Greece, cited above, § 365; Tarakhel, cited above, § 93; and F.G. v. Sweden, cited above, § 111 ).", "174. The prohibition under Article 3 of the Convention does not relate to all instances of ill-treatment. Such treatment has to attain a minimum level of severity if it is to fall within the scope of that Article. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see N. v. the United Kingdom, cited above, § 29; see also M.S.S. v. Belgium and Greece, cited above, § 219; Tarakhel, cited above, § 94; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015 ).", "175. The Court further observes that it has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty, cited above, § 52). However, it is not prevented from scrutinising an applicant ’ s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country (see D. v. the United Kingdom, cited above, § 49).", "176. In two cases concerning the expulsion by the United Kingdom of aliens who were seriously ill, the Court based its findings on the general principles outlined above (see paragraphs 172-74 above). In both cases the Court proceeded on the premise that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the returning State (see D. v. the United Kingdom, cited above, § 54, and N. v. the United Kingdom, cited above, § 42).", "177. In D. v. the United Kingdom (cited above), which concerned the decision taken by the United Kingdom authorities to expel to St Kitts an alien who was suffering from Aids, the Court considered that the applicant ’ s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment (see D. v. the United Kingdom, cited above, § 53). It found that the case was characterised by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support (ibid., §§ 52-53). Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant ’ s expulsion (ibid., § 54).", "178. In the case of N. v. the United Kingdom, which concerned the removal of a Ugandan national who was suffering from Aids to her country of origin, the Court, in examining whether the circumstances of the case attained the level of severity required by Article 3 of the Convention, observed that neither the decision to remove an alien who was suffering from a serious illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State, nor the fact that the individual ’ s circumstances, including his or her life expectancy, would be significantly reduced, constituted in themselves “exceptional” circumstances sufficient to give rise to a breach of Article 3 (see N. v. the United Kingdom, cited above, § 42). In the Court ’ s view, it was important to avoid upsetting the fair balance inherent in the whole of the Convention between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. A finding to the contrary would place too great a burden on States by obliging them to alleviate the disparities between their health-care system and the level of treatment available in the third country concerned through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction (ibid., § 44). Rather, regard should be had to the fact that the applicant ’ s condition was not critical and was stable as a result of the antiretroviral treatment she had received in the United Kingdom, that she was fit to travel and that her condition was not expected to deteriorate as long as she continued to take the treatment she needed (ibid., § 47). The Court also deemed it necessary to take account of the fact that the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would be able to obtain access to medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of Aids worldwide (ibid., § 50). The Court concluded that the implementation of the decision to remove the applicant would not give rise to a violation of Article 3 of the Convention (ibid., § 51). Nevertheless, it specified that, in addition to situations of the kind addressed in D. v. the United Kingdom in which death was imminent, there might be other very exceptional cases where the humanitarian considerations weighing against removal were equally compelling (see D. v. the United Kingdom, cited above, § 43). An examination of the case-law subsequent to N. v. the United Kingdom has not revealed any such examples.", "179. The Court has applied the case-law established in N. v. the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning aliens who were HIV positive (see, among other authorities, E.O. v. Italy (dec.), no. 34724/10, 10 May 2012) or who suffered from other serious physical illnesses (see, among other authorities, V.S. and Others v. France (dec.), no. 35226/11, 25 November 2014) or mental illnesses (see, among other authorities, Kochieva and Others v. Sweden (dec.), no. 75203/12, 30 April 2013, and Khachatryan v. Belgium (dec.), no. 72597/10, 7 April 2015). Several judgments have applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel (see Yoh-Ekale Mwanje v. Belgium, no. 10486/10, 20 December 2011; S.H.H. v. the United Kingdom, no. 60367/10, 29 January 2013; Tatar, cited above; and A.S. v. Switzerland, no. 39350/13, 30 June 2015).", "180. However, in its judgment in Aswat v. the United Kingdom (no. 17299/12, § 49, 16 April 2013), the Court reached a different conclusion, finding that the applicant ’ s extradition to the United States, where he was being prosecuted for terrorist activities, would entail ill ‑ treatment, in particular because the conditions of detention in the maximum security prison where he would be placed were liable to aggravate his paranoid schizophrenia. The Court held that the risk of significant deterioration in the applicant ’ s mental and physical health was sufficient to give rise to a breach of Article 3 of the Convention (ibid., § 57).", "181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.", "182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012 ), the Court is of the view that the approach adopted hitherto should be clarified.", "183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.", "184. As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants ’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 286-87, and F.G. v. Sweden, cited above, §§ 117-18 ).", "185. Accordingly, in cases of this kind, the authorities ’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012; Tarakhel, cited above, § 104; and F.G. v. Sweden, cited above, § 117).", "186. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see, in particular, Trabelsi v. Belgium, no. 140/10, § 130, ECHR 2014 (extracts) ).", "187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). The risk alleged must be subjected to close scrutiny (see Saadi, cited above, § 128; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011; Hirsi Jamaa and Others, cited above, § 116; and Tarakhel, cited above, § 104) in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual ’ s personal circumstances (see Vilvarajah and Others, cited above, § 108; El-Masri, cited above, § 213; and Tarakhel, cited above, § 105). The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.", "188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill ‑ treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.", "189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant ’ s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.", "190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).", "191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).", "192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.", "193. Lastly, the fact that the third country concerned is a Contracting Party to the Convention is not decisive. While the Court agrees with the Government that the possibility for the applicant to initiate proceedings on his return to Georgia was, in principle, the most natural remedy under the Convention system, it observes that the authorities in the returning State are not exempted on that account from their duty of prevention under Article 3 of the Convention (see, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 357-59, and Tarakhel, cited above, §§ 104-05).", "2. Application of the general principles to the present case", "194. It is not disputed that the applicant was suffering from a very serious illness, chronic lymphocytic leukaemia, and that his condition was life-threatening.", "195. The applicant provided detailed medical information obtained from Dr L., a doctor specialising in the treatment of leukaemia and head of the haematology department in a hospital devoted entirely to the treatment of cancer. According to this information, the applicant ’ s condition had become stable as a result of the treatment he was receiving in Belgium. This was a highly targeted treatment aimed at enabling him to undergo a donor transplant, which offered the last remaining prospect of a cure provided it was carried out within a fairly short timeframe. If the treatment being administered to the applicant had had to be discontinued, his life expectancy, based on the average, would have been less than six months (see paragraph 46 above).", "196. In a report of 23 June 2015 the medical adviser of the Aliens Office stressed that the medical information concerning the applicant did not disclose a direct threat to his life or indicate that his state of health was critical (see paragraph 68 above).", "197. The applicant submitted that, according to the information available to Dr L., neither the treatment he was receiving in Belgium nor the donor transplant was available in Georgia. As to the other forms of leukaemia treatment available in that country, he argued that there was no guarantee that he would have access to them, on account of the shortcomings in the Georgian social insurance system (see paragraph 141 above). In the Court ’ s view, these assertions are not without some credibility.", "198. The Court notes that on 10 September 2007 and 2 April 2008 the applicant made two requests for regularisation of his residence status in Belgium on medical grounds, on the basis of section 9 ter of the Aliens Act (see paragraphs 54 and 59 above). His requests were based primarily on the need to obtain appropriate treatment for his leukaemia and on the premise that he would have been unable to receive suitable care for his condition in Georgia.", "199. On 26 September 2007 and 4 June 2008 the applicant ’ s requests for regularisation were refused by the Aliens Office on the grounds that he was excluded from the scope of section 9 ter of the Act because of the serious crimes he had committed (see paragraphs 55 and 60 above). The Aliens Appeals Board, called upon to examine the applicant ’ s requests for a stay of execution of these decisions and his applications to set them aside, held in judgments dated 28 August 2008 and 21 May 2015 that, where the administrative authority advanced grounds for exclusion, it was not necessary for it to examine the medical evidence submitted to it. With regard to the complaints based on Article 3 of the Convention, the Aliens Appeals Board further noted that the decision refusing leave to remain had not been accompanied by a removal measure, with the result that the risk of the applicant ’ s medical treatment being discontinued in the event of his return to Georgia was purely hypothetical (see paragraphs 57 and 62 above). The Conseil d ’ État, to which the applicant appealed on points of law, upheld the reasoning of the Aliens Appeals Board and specified that the medical situation of an alien who faced removal from the country and whose request for leave to remain had been refused should be assessed at the time of enforcement of the removal measure rather than at the time of its adoption (see paragraph 64 above).", "200. The Court concludes from the above that, although the Aliens Office ’ s medical adviser had issued several opinions regarding the applicant ’ s state of health based on the medical certificates provided by the applicant (see paragraphs 67-68 above), these were not examined either by the Aliens Office or by the Aliens Appeals Board from the perspective of Article 3 of the Convention in the course of the proceedings concerning regularisation on medical grounds.", "201. Nor was the applicant ’ s medical situation examined in the context of the proceedings concerning his removal (see paragraphs 73, 78 and 84 above).", "202. The fact that an assessment of this kind could have been carried out immediately before the removal measure was to be enforced (see paragraph 199 in fine above) does not address these concerns in itself, in the absence of any indication of the extent of such an assessment and its effect on the binding nature of the order to leave the country.", "203. It is true that at the hearing on 15 September 2015 the Belgian Government gave assurances that, should it ultimately be decided to perform a donor transplant in Belgium, the Belgian authorities would not take any steps to prevent it or to secure the applicant ’ s removal while he was in hospital. The Court takes note of that statement.", "204. The Government further submitted that it might have been possible to continue the applicant ’ s treatment by having his medication sent through the post under the supervision of his doctor and with the assistance of doctors in Georgia. However, the Government did not provide any specific information regarding the practical feasibility of such a solution.", "205. In conclusion, the Court considers that in the absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, the information available to those authorities was insufficient for them to conclude that the applicant, if returned to Georgia, would not have run a real and concrete risk of treatment contrary to Article 3 of the Convention (see paragraph 183 above).", "206. It follows that, if the applicant had been returned to Georgia without these factors being assessed, there would have been a violation of Article 3.", "207. In view of this finding the Court considers that it is not necessary to examine the complaint under Article 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "208. The applicant complained that his removal to Georgia, ordered together with a ten-year ban on re-entering Belgium, would have resulted in his separation from his family, who had been granted leave to remain in Belgium and constituted his sole source of moral support. He alleged a violation of Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "209. Under Article 8 of the Convention viewed from the standpoint of the State ’ s positive obligations (see the Chamber judgment, § 138), the Chamber considered that the applicant ’ s convictions weighed heavily with regard to both the number and seriousness of the offences and the nature of the last penalty imposed (ibid., §§ 145 ‑ 47).", "210. It also noted that at no point during his fifteen-year stay in Belgium had the applicant been in possession of a valid residence permit and that, despite the applicant ’ s repeated convictions, the Belgian authorities had displayed remarkable tolerance (ibid., §§ 149-50). It further took account of the fact that the members of the family were Georgian nationals and that, as they had Belgian residence permits, his wife and children could leave and re-enter the country lawfully (ibid., §§ 151-53).", "211. Lastly, taking into consideration the medical aspect of the case and the fact that the family could decide to leave Belgium temporarily for Georgia, the Chamber stressed that it did not discern any exceptional circumstances that would require the Belgian authorities to refrain from removing the applicant or to grant him leave to remain (ibid., § 154).", "212. Accordingly, it held that there had been no violation of Article 8 of the Convention (ibid., § 156).", "B. The parties ’ observations before the Grand Chamber", "1. The applicant", "213. The applicant maintained that the Belgian authorities ’ refusal to regularise his residence status on humanitarian grounds or to examine his request for regularisation on medical grounds amounted to interference with his private and family life in breach of Article 8.", "214. He argued that the Belgian authorities had been under a duty to carry out a balanced and reasonable assessment of all the interests at stake. They should have applied the rules taking into consideration the children ’ s best interests and the requirement to afford them special protection on account of their vulnerability. Although the applicant ’ s children had Georgian nationality, from a “sociological” perspective they were Belgian, and they spoke only French. They had been given leave to remain in Belgium in 2010 and two of them had been born in Belgium. They had no ties in Georgia, did not speak Georgian or Russian and would be eligible to become fully fledged Belgian citizens in the medium term.", "215. In addition, the couple ’ s eldest daughter, with whom his wife had arrived in Belgium in 1998, was now an adult and lived in Belgium with her two children.", "216. The refusal to regularise the applicant ’ s status had left the family in a state of economic and social vulnerability which had had a major psychological impact and had hindered the development of their daily life. The practical implications of this situation for the applicant – the fact that he was barred from working and could not contribute to the household expenses, the constant fear of arrest, the negative effect on his self-esteem, and so forth – had affected the relationship between the children and their father. The applicant ’ s criminal behaviour, which had been motivated largely by the need to survive financially, belonged to the past. The applicant was in a very weak state and stayed mostly at home, venturing out only to collect his children from school.", "217. The worsening of the applicant ’ s condition, coupled with the impossibility of maintaining his state of health in Georgia and with the length of his residence and that of his family in Belgium, should have prompted the Court to reconsider the approach taken in the Chamber judgment, to assess the situation in its entirety and to find that the applicant ’ s family had specific needs linked to their integration in Belgium. The solution advocated by the Chamber, which would have entailed the family moving to Georgia for long enough to take care of the applicant until his death, would not have been feasible as it would have meant taking the children out of school in Belgium and taking them to a country they did not know and where they did not speak the language. Their mother would have been unable to ensure the family ’ s upkeep in Georgia in view of the applicant ’ s condition, and the applicant would have died in particularly distressing circumstances. Furthermore, if they had had to remain in Georgia for more than one year, the applicant ’ s wife and children would have forfeited the right to return to Belgium. Such a solution would have been, to say the least, disproportionate when weighed against the interests of the Belgian State.", "2. The Government", "218. The Government stressed the significance that should be attached to the applicant ’ s criminal record and the fact that he had persisted in his criminal conduct despite his illness.", "219. As to the children ’ s best interests, the Government considered that these were difficult to determine because the children were not applicants and especially because there was nothing to indicate that they would have been unable to follow their father to Georgia for a time and attend school there. Furthermore, as the applicant had not provided detailed information regarding the extent of his family in Georgia and the persons with whom he was in contact, it was difficult to make an overall assessment of the situation.", "220. The Government further submitted that residence permits had been issued by a decision of 29 July 2010 to the applicant ’ s wife and their children, granting them indefinite leave to remain under sections 9 and 13 of the Aliens Act. The permit in question was a “type B”, in other words, a certificate of entry in the aliens ’ register which was valid for five years and could be renewed for the same period – in advance, if necessary – by the municipal authorities in the place of residence. This residence permit entitled the members of the applicant ’ s family to leave Belgium for one year or more and return to the country, provided that they had complied with the requisite formalities in the municipality of residence and had ensured that they had a valid permit. The formalities varied according to the length of the stay outside the country: in the case of stays of three months to a year, the aliens concerned had to report to the municipal authorities before leaving and within fifteen days of returning or risk automatic removal from the municipality ’ s register. In the case of stays of over one year, they forfeited their right to remain unless they could demonstrate before their departure that their centre of interests still lay in Belgium and they informed the municipal authorities in their habitual place of residence of their intention to leave the country and return. The persons concerned also had to be in possession of a valid residence permit on their return and to report to the municipal authorities within fifteen days of returning.", "C. The Court ’ s assessment", "221. As regards the applicability of Article 8 and the standpoint from which the complaints should be examined, the Grand Chamber will proceed on the same premises as the Chamber (see the Chamber judgment, §§ 136 ‑ 38). Firstly, it is not disputed that family life existed between the applicant, his wife and the children born in Belgium. This renders irrelevant the disagreement as to whether the applicant was the father of the child born before their arrival in Belgium, who is now an adult (ibid., § 136). Furthermore, assuming that the removal measure could have been examined from the standpoint of the applicant ’ s private life, the “family life” aspect should take precedence in view of the specific issues raised by the present case and the parties ’ submissions. Secondly, while the case concerns both the domestic authorities ’ refusal to grant the applicant leave to remain in Belgium and the threat of his removal to Georgia, in view of the specific features of the case and recent developments the Chamber found that the key question was whether the Belgian authorities were under a duty to allow the applicant to reside in Belgium so that he could remain with his family (ibid., § 138). The Grand Chamber considers that examining the complaint alleging a violation of Article 8 in this way from the standpoint of the Belgian authorities ’ positive obligations is made all the more necessary by the developments in the case, in particular the deterioration of the applicant ’ s health and his eventual death. Lastly, the Grand Chamber reiterates that in the context of both its positive and its negative obligations, the State must strike a fair balance between the competing interests of the individual and of society as a whole, and that the extent of the State ’ s obligations will vary according to the particular circumstances of the persons involved and the general interest (ibid., § 140, and the references cited therein).", "222. However, unlike the Chamber, having observed that the Belgian authorities did not examine the applicant ’ s medical data and the impact of his removal on his state of health in any of the proceedings brought before them, the Grand Chamber has concluded that there would have been a violation of Article 3 of the Convention if the applicant had been removed to Georgia without such an assessment being carried out (see paragraph 206 above).", "223. A fortiori, the Court observes that the Belgian authorities likewise did not examine, under Article 8, the degree to which the applicant was dependent on his family as a result of the deterioration of his state of health. In the context of the proceedings for regularisation on medical grounds the Aliens Appeals Board, indeed, dismissed the applicant ’ s complaint under Article 8 on the ground that the decision refusing him leave to remain had not been accompanied by a removal measure (see paragraph 58 above).", "224. Nevertheless, just as in the case of Article 3, it is not for the Court to conduct an assessment, from the perspective of Article 8 of the Convention, of the impact of removal on the applicant ’ s family life in the light of his state of health. In that connection the Court considers that this task not only falls to the domestic authorities, which are competent in the matter, but also constitutes a procedural obligation with which they must comply in order to ensure the effectiveness of the right to respect for family life. As the Court has observed above (see paragraph 184), the machinery of complaint to the Court is subsidiary to national systems safeguarding human rights.", "225. Accordingly, if the Belgian authorities had ultimately concluded that Article 3 of the Convention as interpreted above did not act as a bar to the applicant ’ s removal to Georgia, they would have been required, in order to comply with Article 8, to examine in addition whether, in the light of the applicant ’ s specific situation at the time of removal (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 93, ECHR 2008), the family could reasonably have been expected to follow him to Georgia or, if not, whether observance of the applicant ’ s right to respect for his family life required that he be granted leave to remain in Belgium for the time he had left to live.", "226. It follows that, if the applicant had been removed to Georgia without these factors having been assessed, there would also have been a violation of Article 8 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "227. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "228. The applicant claimed EUR 10,434 in respect of pecuniary damage. This amount corresponded to his out-of-pocket expenses for treatment in Belgium which had not been covered owing to his irregular residence status in the country.", "229. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, and dismisses this claim.", "230. The applicant also claimed EUR 5,000 in respect of non-pecuniary damage resulting from his precarious socio-economic situation.", "231. The Court considers that, having regard to the circumstances of the case, the conclusion it has reached under Articles 3 and 8 of the Convention (see paragraphs 206 and 226 above) constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head.", "B. Costs and expenses", "232. The applicant further claimed EUR 9,411 in respect of the fees payable to his lawyers for the preparation of the written observations they had submitted to the Court prior to the request for referral to the Grand Chamber. He submitted copies of the relevant invoices in support of his claim, and stated that he had already paid approximately half of the fees, that is, EUR 4,668, and was unable to pay the remainder.", "233. In their observations before the Chamber the Government argued that the applicant, as an alien, was presumed under domestic law to be in financial need and thus eligible for legal aid, including for the expenses linked to the proceedings before the Court.", "234. Making its assessment on an equitable basis, the Court decides that the sum of EUR 5,000 is to be paid to the applicant ’ s family in respect of costs and expenses, plus any tax that may be chargeable to them (see, mutatis mutandis, Karner, cited above, § 50).", "C. Default interest", "235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1974 and lives in Yerevan. The applicant was represented by Mr T. Yegoryan and Mr N. Baghdasaryan, lawyers practising in Yerevan.", "3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant, who is ethnic Armenian, lived and worked in Russia prior to his return to Armenia on an unspecified date in June 2015. He was first deputy director of one of the State budgetary establishments of the City of Moscow.", "Criminal proceedings against the applicant in Russia", "6. On 27 May 2015 the investigative department of the north administrative district of Moscow instituted criminal proceedings against the applicant on suspicion of attempted bribe-taking.", "7. On 1 June 2015 the applicant undertook to appear when summoned by the investigative authority and to inform the investigator immediately of any change of place of residence or registration.", "8. On 10 June 2015 the applicant was charged with attempted bribe-taking.", "9. On the same date the applicant was admitted to accident and emergency in a hospital in Moscow with transient cerebral ischaemia. He was discharged on 14 June 2015.", "10. On 16 June 2015 the investigator declared the applicant a fugitive, including him in the federal wanted list.", "11. On 8 July 2015 the applicant was declared an international fugitive.", "12. On 14 July 2015 the Savelevskiy District Court of Moscow allowed the investigator’s application seeking the applicant’s detention. In doing so, it dismissed the applicant’s lawyer’s arguments concerning the applicant’s poor state of health and the fact that that he had received inpatient medical treatment in Yerevan of which the investigator had been informed. The court found, inter alia, that the applicant had knowingly chosen not to receive medical treatment in Russia and had left the country despite the criminal proceedings pending against him.", "Extradition proceedings in Armenia and the applicant’s state of health", "13. On 11 April 2017 the applicant was arrested in Yerevan. He was then detained pending determination of the question of his extradition to Russia.", "14. On 14 April 2017 the Office of the Prosecutor General of Armenia submitted an application to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) seeking to detain the applicant for a period of forty days pending determination of the question of his extradition to Russia.", "15. On the same date the District Court authorised the applicant’s detention for a period of forty days counting from 11 April 2017.", "16. On 19 April 2017 the applicant lodged an appeal against the District Court’s decision of 14 April 2017, arguing that he should be considered an Armenian citizen, which would be legal grounds preventing his extradition. The applicant submitted a number of documents such as his birth certificate, old passports, documents concerning his military conscription in Armenia, and so forth to substantiate that he satisfied the requirements of section 10 of the Nationality Act and he should therefore be recognised an Armenian citizen.", "17. On 30 May 2017 the Criminal Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal. In particular, having examined the documents submitted by the prosecution in support of the argument that the applicant had received Russian nationality before 13 July 1995, the date of entry into force of the Constitution – one of the requirements of section 10 of the Nationality Act – the Court of Appeal found that the applicant’s detention for the purpose of his extradition to a foreign country would be in breach of his rights since the question of his nationality was disputed. At the same time, the Court of Appeal found that the applicant’s detention pending receipt of the criminal case against him for the purpose of his prosecution in Armenia was lawful under Articles 478.2 and 478.3 of the Code of Criminal Procedure.", "18. On 12 May 2017 the Prosecutor General of Russia requested the applicant’s extradition under the 1993 Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters. That request also stated that the applicant would not be subjected to torture, inhuman and degrading treatment or punishment.", "19. On 14 May 2017 the Office of the Prosecutor General of Armenia lodged an application with the District Court, seeking the applicant’s detention for two months for the purpose of carrying out his extradition.", "20. On 19 May 2017 the District Court authorised the applicant’s detention for a period of two months.", "21. On 16 June 2017 the applicant was transferred from the Nubarashen detention facility to the Central Prison Hospital with the following diagnosis: “Heart ischaemic disease; arterial hypertension progressing to a critical state”.", "22. In a decision of 23 June 2017 the Prosecutor General of Armenia granted the extradition request, instructing the police and the Central Prison Hospital, where the applicant was detained, to ensure his extradition to Russia after the decision had become final. It was stated in the decision that according to the documents provided by the Office of the Prosecutor General of Russia the applicant had received Russian nationality on 26 July 1994 and that he was still a Russian citizen. Hence, there were no legal impediments to his extradition.", "23. On 3 July 2017 the deputy head of the Central Prison Hospital issued a certificate in respect of the applicant’s state of health. It stated that he was suffering from a post-stroke condition with severe vestibulopathy and eye ‑ movement impairment; remnants of the stroke in the area of the left middle artery of the brain with right-sided reflector hemiparesis; walking difficulty as a result of hemiparesis; 2nd degree atherosclerotic encephalopathy; 1st degree arterial hypertension; a 15% risk of developing cardiovascular complications.", "24. On 6 July 2017 the applicant appealed against the extradition decision of 23 June 2017 to the Court of Appeal. He argued that, considering his state of health, his transfer to Russia could cause irreparable harm to his health or put his life in danger. In support of his appeal, the applicant relied on the medical certificate of 3 July 2017.", "25. In a letter of 12 July 2017 the Office of the Prosecutor General of Russia asked the Office of the Prosecutor General of Armenia to inform it of the planned date for the applicant’s transfer, guaranteeing that during the applicant’s detention and, in the event of his conviction, during the serving of his sentence the staff of the Armenian consulate in Russia would have access to him. In addition, during the same periods, in case of necessity, the applicant would be provided with the requisite medical assistance.", "26. On the same date the chief neurologist of the Ministry of Health of Armenia issued a medical certificate which stated that the applicant was suffering from the consequences of an ischaemic stroke indicating severe disorders of the cardiovascular and nervous systems. Considering those risks, it could not be ruled out that the applicant’s transfer to Russia by air or land could result in a further stroke or a heart attack.", "27. By further letter of 14 July 2017 the Office of the Prosecutor General of Russia gave assurances that a doctor with the relevant specialisation would travel with a special convoy to provide the applicant with medical assistance if necessary during his transfer.", "28. On 19 July 2017 the Court of Appeal rejected the applicant’s appeal. It referred to the assurances provided by the Office of the Prosecutor General of Russia regarding the presence of a medical specialist during the applicant’s transfer to Russia and during his detention and, if convicted, while serving his sentence.", "29. On 26 July 2017 the applicant lodged an appeal on points of law against the decision of 19 July 2017, arguing that the translator appointed for him had failed to appear at the hearing and that a copy in Russian of the judgment had not been provided to him. In addition, the applicant had not been able to effectively participate in the proceedings since he had neither been properly given a chance to make arguments nor had he been informed of his rights. Lastly, the applicant argued that the Court of Appeal had failed to verify his state of health as far as the risks during his transfer were concerned.", "30. In the certificate of 28 July 2017 Dr A.K., the head of the neurological department of a hospital in Yerevan, confirmed the applicant’s diagnosis as set out in the medical certificate of 12 July 2017 (see paragraph 26 above). It was further noted that the applicant had developed cephalic disorder accompanied with photophobia and phonophobia, which required treatment and preferably supervision by a neurologist. On the basis of those conditions and risk factors, it was concluded that the applicant should not be allowed to be transferred by air or land as that might cause further heart and brain problems.", "31. Between 14 August and 1 September 2017 the applicant underwent inpatient medical examination and treatment in a civilian hospital. His discharge diagnosis stated the following:", "“Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in vertebra-basilar pool. Discirculatory angio-encephalopathy of the 3rd degree with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery accompanied with post-stroke cysts in the midbrain, the bridge and the brainstem; with leukoaraiosis with stable residual phenomena in the form of the right-sided moderate hemiparesis; vestibulopathy; moderate disorder of walking function; hypertensive syndrome manifested with frequent cephalgia. Ischaemic heart disease, stable angina pectoris ... ”", "32. On 21 August 2017 the Court of Cassation quashed the decision of 19 July 2017 and remitted the case for a new examination on the grounds that the Court of Appeal had failed to ensure that the applicant had understood the language of the proceedings and that he had been aware of his rights.", "33. On 13 September 2017 Dr A.K. provided a further medical opinion concerning the applicant’s state of health based on his discharge diagnosis (see paragraph 31 above). She stated, in particular, the following:", "“[T]he applicant’s [condition] is serious and unpredictable, considering the strong probability of future attacks in the form of hypertonic crises and transient ischaemic attacks, the two previous ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery.", "A person suffering from those conditions cannot participate in court hearings, because any emotional tension might lead to the development of new potential complications.”", "34. At the hearing of 25 October 2017 during the fresh examination of the applicant’s appeal against the extradition decision of 23 June 2017, his lawyer lodged an application with the Court of Appeal, seeking the appointment of an expert to assess his state of health. The prosecutor objected to the application, stating that there were insufficient grounds to conclude that the applicant’s transfer to Russia would pose any risks to his health or life. She reasoned that during the examination of the request for the applicant’s extradition the Prosecutor General of Armenia had not been in possession of any medical documents concerning the applicant’s health. Moreover, the prosecutor expressed doubts about the applicant’s medical condition, referring to a letter from the detention facility dated 13 July 2017 which stated that he was fit to participate in court proceedings.", "35. On the same date the Court of Appeal rejected the applicant’s appeal finding that there were no circumstances preventing the applicant’s extradition. In particular, the applicant was a Russian national and assurances about securing his rights within the framework of the criminal proceedings against him had been provided by the Russian authorities. The Court of Appeal affirmed the decision of the Prosecutor General of Armenia on extraditing the applicant to Russia, relying on the supplementary assurances of the Russian authorities that the applicant’s medical supervision during and after his transfer to Russia would be ensured. In the meantime, it also rejected the applicant’s request to appoint a forensic medical expert on the grounds that the assignment of a forensic medical examination during extradition proceedings was not prescribed under domestic law.", "36. The applicant lodged an appeal on points of law complaining of lack of a public hearing and adversarial trial before the Court of Appeal. He also reiterated his arguments about the medical risks of his transfer.", "37. On 23 November 2017 the Court of Cassation declared the appeal inadmissible for lack of merit. Accordingly, the decision of the Prosecutor General of Armenia to extradite the applicant to Russia became final.", "38. On 30 November 2017 the decision of 23 November 2017 was served on the applicant’s lawyer.", "Indication of an interim measure under Rule 39 of the Rules of Court", "39. On 18 August 2017 the applicant asked the Court, under Rule 39 of the Rules of the Court, to indicate to the Government to stay his extradition to Russia until the Court had examined the merits of his complaints.", "40. On 30 November 2017 the applicant informed the Court that the domestic courts had reached a final decision to extradite him to Russia.", "41. On the same date the Court (the duty judge) decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited until further notice. In the meantime, the Court (duty judge) decided, under Rule 54 § 2 (a) of the Rules of Court, to ask the Government to respond to the following questions by 15 December 2017:", "“1. What practical steps, if any, have been taken for the applicant’s effective transfer to the Russian Federation?", "2. If steps have been taken, when and how will the applicant be transferred (by air, land)?", "3. Will the applicant be provided with medical assistance during the journey? If so, please provide details.", "4. Is there a medical protocol for handing over the applicant to the Russian authorities upon arrival?”", "42. In their reply the Government submitted that the applicant had speculatively tried to hinder his extradition first by providing misleading information to substantiate that he was an Armenian national and then by producing medical documents about a drastic deterioration of his state of health. Furthermore, the applicant had already been suffering from the diseases mentioned in the medical note of 12 July 2017 when he had travelled to Armenia by plane in June 2015.", "The Government relied on the letters of 12 and 14 July (see paragraphs 26 and 27 above) and 14 December 2017 (see paragraph 49 below) which contained assurances by the Russian authorities that the applicant would be provided with the requisite medical assistance during his transfer to Russia and, if convicted, while serving his sentence. They submitted that according to the established practice, a person’s extradition from Armenia was performed only if a medical document proving his or her", "fitness to be transferred had been issued by the Central Prison Hospital.", "43. In reply to the Government’s submissions, the applicant maintained that he had had health issues since at least 1994, when he had been exempted from mandatory military service on health grounds. However, it had only been since 2015 that his health had sharply deteriorated as a result of the stress and anxiety caused by his prosecution. Owing to his poor state of health he had been kept in the Central Prison Hospital during his detention and transferred to civilian hospitals by the authorities to receive specialist care. Furthermore, the Government had never ordered an assessment of his state of his health in order to verify whether he had been fit to be extradited. In addition, the Court of Appeal had dismissed his application to be examined by a forensic medical expert.", "The applicant argued that the general assurances obtained from the Russian authorities were insufficient for the discontinuation of the measure indicated by the Court, considering the seriousness of his illnesses as attested to by various medical professionals. He also relied on the medical advice that he should not be transferred to Russia either by air or land given the potential risks of such transfer indicated by doctors.", "44. On 6 February 2018 the Court (the duty judge) decided to maintain the interim measure indicated on 30 November 2017.", "Parallel and subsequent developments", "45. On 27 September 2017 the applicant submitted a request for asylum to the State Migration Service.", "46. In a decision of 14 November 2017 the State Migration Service refused the applicant’s request for asylum.", "47. On 11 December 2017 the applicant was released from detention as the maximum period of his detention pending extradition had expired.", "48. On the same date he was admitted to the neurology department of a civilian hospital for examination and treatment.", "49. By letter of 14 December 2017 the Office of the Prosecutor General of Russia, with reference to a letter from the Russian Federal Service for Execution of Sentences, informed the Prosecutor General of Armenia that the special convoy accompanying the applicant would include a medical specialist ready to provide medical assistance to him in accordance with his state of health. Furthermore, the medication and medical equipment necessary to provide assistance in the event of cardiovascular problems would be at the disposal of the doctor accompanying the applicant during his transfer. The letter also stressed that, before signing the applicant’s act of transfer, it would be necessary for the accompanying doctor to examine his medical records with a view to verifying the absence of contraindications for his transfer by air transport. Lastly, it was stated that the applicant would undergo medical examinations and consultations upon arrival at the detention facility with a view to planning outpatient supervision of his chronic illnesses.", "50. On 18 December 2017 the applicant lodged a claim with the Administrative Court seeking judicial review of the decision of the State Migration Service dated 14 November 2017 (see paragraph 46 above).", "51. On 21 December 2017 the Administrative Court admitted the applicant’s claim for examination. The outcome of those proceedings was not communicated to the Court.", "52. On 26 December 2017 the applicant qualified for disability.", "53. On 28 December 2017 the applicant was discharged from hospital with the following diagnosis:", "“Arterial hypertension, progressing to a critical state, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in the vertebra-basilar pool. Third degree discirculatory angio-encephalopathy with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery with the existence of post ‑ stroke cysts in the midbrain, the bridge and the brainstem, with leukoaraiosis with stable residual phenomena in the form of the right–sided moderate hemiparesis, vestibulopathy, moderate disorder of walking function, with hypertensive syndrome, and frequent cephalgia. Ischaemic heart disease, angina pectoris class 2, class 1 heart failure (NYHA classification). Multi-level degenerative-dystrophic changes of the spine, osteochondrosis of the 4th degree with hernias at C4-C5, C5-C6, C6-C7 levels, hydromyelia.", "Recommendation: constant supervision by a neurologist. At the moment, he is not fit to travel. Constant administration of hypotensive and antiplatelet medication”.", "Events after NOTICE of the application being given to the respondent Government", "54. On 9 January 2019 the Government informed the Court that they had ordered an additional impartial medical evaluation of the potential risks associated with the applicant’s transfer to Russia based on the evidence presented by the applicant regarding his state of health.", "55. On 11 January 2019 a neurologist examined the applicant and confirmed the diagnoses set out in the conclusion of 28 December 2017 (see paragraph 53 above). In addition, the neurologist noted the following:", "“... at the moment, transfer by air or land is contraindicative, as any change in pressure (take-off, landing, being in a confined space for a long time, oxygen scarcity, motion sickness, any sudden and quick movements) can worsen the state of the disease, which threatens not only the patient’s health, but also his life.”", "56. In a letter of 31 January 2019 the Government Agent asked the Minister of Health to form a medical panel which would provide professional medical opinion on the following questions:", "“Considering [the applicant’s] diagnosis as stated in the medical documents submitted to the [European Court of Human Rights], would his transfer to the Russian Federation by air or land expose him to risks to his life and physical well-being?", "If [the applicant’s] transfer exposed him to risks to his life and physical well-being, would the presence of an accompanying doctor (specifically with what type of specialisation) during the transfer eliminate or minimise such risks?”", "57. On 12 February 2019 the Minister of Health submitted the opinion of the medical panel which had been convened on 11 February 2019. The medical panel answered the questions as formulated in the Government Agent’s letter of 31 January 2019 (see paragraph 56 above) as follows:", "“Question 1: Yes, the high risks associated with [the applicant’s] transfer to the Russian Federation by air or land are linked to the chronic diseases reflected in ... his medical documents and their possible unpredictable aggravation.", "Question 2: No, since in the event of aggravation [of the chronic diseases] emergency medical care in a specialist medical institution may become necessary.”", "58. The opinion of the medical panel convened on 11 February 2019 was provided to the Court on 2 May 2019 by the applicant, who had received it in response to an enquiry sent to the Ministry of Health in April 2019.", "59. The parties have not provided any further information with regard to developments in the applicant’s state of health." ]

[ "RELEVANT LEGAL FRAMEWORK", "Relevant domestic lawConstitution (with the amendments introduced on 6 December 2015, in force as of 22 December 2015)", "Constitution (with the amendments introduced on 6 December 2015, in force as of 22 December 2015)", "Constitution (with the amendments introduced on 6 December 2015, in force as of 22 December 2015)", "Article 55: Prohibition of expulsion or extradition", "“1. No one may be expelled or extradited to a foreign State if there is a real danger that the given person may be subjected to the death penalty, torture, inhuman or degrading treatment or punishment in that country.", "2. A citizen of the Republic of Armenia may not be extradited to a foreign State, except for the cases provided for by the international treaties ratified by the Republic of Armenia.”", "Code of Criminal Procedure", "60. Article 478.2 § 1 states that individuals who have committed a crime outside the territory of Armenia and have been arrested in the territory of that State can be placed in temporary detention for a maximum of forty days or another time-period as provided in an international treaty with the purpose of receiving an extradition request and verifying the existence of circumstances excluding extradition.", "61. Article 478.3 § 5 provides that the person can be detained for the purpose of his or her extradition for a period of two months. Detention for the purpose of extradition cannot exceed eight months.", "62. Article 479 § 1 (1) provides that it is the Prosecutor General of Armenia who adopts decisions to grant or refuse extradition requests if the case is at the pre-trial stage. The Prosecutor General’s relevant decision is subject to appeal to the Criminal Court of Appeal within ten days of its receipt while the decisions of the appellate court are subject to appeal to the Court of Cassation within five days of their receipt.", "The Court of Appeal and the Court of Cassation must examine the case and adopt a decision within five days of the date of receipt of the appeal (Article 479 § 3).", "If a person’s, including an Armenian citizen’s, extradition is refused, but there are sufficient grounds to prosecute him or her for the offence in relation to which a foreign country requested his or her extradition, the Prosecutor General of Armenia initiates that person’s criminal prosecution (Article 479 § 9).", "63. In accordance with Article 488 § 1 (3) an extradition request submitted by the competent authorities of a foreign State must be refused if the request concerns the extradition of an Armenian citizen.", "Nationality Act (enacted on 6 November 1995)", "64. Pursuant to section 10(1), former USSR nationals who permanently reside in the territory of the Republic of Armenia and who did not obtain the nationality of another State before the entry into force of the Constitution (13 July 1995) or who renounced it within a period of one year of the date of the entry into force of the present Act (28 November 1995), are recognised as nationals of the Republic of Armenia.", "Relevant international law 1993 Minsk Convention", "1993 Minsk Convention", "1993 Minsk Convention", "65. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 – hereinafter “the Minsk Convention”), to which both Armenia and Russia are parties, provides as follows:", "Article 56. Obligation of extradition", "“1. The Contracting Parties shall ... at each other’s request, extradite persons who find themselves in their territory for criminal prosecution or to serve a sentence.", "2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.”", "Article 60. Detention for extradition", "“Upon receipt of an extradition request, the requested Contracting Party shall immediately take measures to detain the person whose extradition is sought, except in cases where no extradition is possible.”", "Article 61. Arrest or detention before the receipt of an extradition request", "“1. The person whose extradition is sought may also be arrested before receipt of an extradition request, if there is a related petition. The petition shall contain a reference to a detention order or a final conviction and shall indicate that an extradition request will follow ...”", "Article 62. Release of the person arrested or detained", "“1. A person arrested under Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within forty days of the arrest ...”", "European Convention on Extradition", "66. The European Convention on Extradition (signed in Paris on 13 December 1957) which entered into force in respect of Armenia on 25 April 2002, provides as follows:", "Article 1 – Obligation to extradite", "“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”", "67. The instrument of ratification deposited by the Armenian Government on 25 January 2002 contained the following reservation:", "“In respect of Article 1 of the Convention, the Republic of Armenia reserves the right to refuse to grant extradition:", "...", "b. if there are sufficient grounds to suppose that in result of the person’s state of health and age her [or] his extradition will be injurious to her [or] his health or threaten her [or] his life;", "...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLEs 2 and 3 OF THE CONVENTION", "68. The applicant alleged that his extradition to Russia would be contrary to the requirements of Articles 2 and 3 of the Convention, considering the medical evidence in respect of the risks of his transfer. Those Articles provide, in so far as relevant, as follows:", "Article 2", "“1. Everyone’s right to life shall be protected byone shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Admissibility", "69. In their further observations submitted in reply to the applicant’s observations, the Government argued that the applicant’s representative had used offensive language. In particular, the applicant’s representative had labelled the Government’s observations as “irrelevant”, asserted that the Government were trying to misinterpret the facts and were “in pursuit of covert and unclear goals”, among other things. Furthermore, the observations mentioned that the Government had “overstepped the permissible limits of formal judicial communication and legal ethics” and had “blamed” and “shamed” the applicant. The Government considered this to amount to an abuse of the right of application within the meaning of Article 35 § 3 of the Convention and asked the Court to declare the application inadmissible on those grounds.", "70. The Court reiterates that the implementation of Article 35 § 3 (a), which allows it to declare inadmissible any individual application that it considers to be “an abuse of the right of individual application”, is an “exceptional procedural measure” and that the concept of “abuse” refers to its ordinary meaning, namely the harmful exercise of a right by its holder in a manner that is inconsistent with the purpose for which such right is granted (see S.A.S. v. France [GC], no. 43835/11, § 66, ECHR 2014 (extracts), and Miroļubovs and Others v. Latvia, no. 798/05, § 62, 15 September 2009).", "71. The use of particularly vexatious, insulting, threatening or provocative language by the applicant – whether this is directed against the respondent State or the Court itself – may be considered an abuse of the right of petition (see Apinis v. Latvia (dec.), no. 46549/06, 20 September 2011, and Miroļubovs and Others v. Latvia, cited above, § 64). At the same time, the applicant’s language must exceed “the bounds of normal, civil and legitimate criticism” in order to be regarded as abusive (see Di Salvo v. Italy (dec.), no. 16098/05, 11 January 2007, and Apinis, cited above).", "72. Turning to the present case, the Court observes that in his submissions the applicant’s lawyer justified his impugned statements by the fact that in their previous correspondence as regards the applicant’s request under Rule 39 of the Rules of Court and in their observations on the admissibility and merits of the application the Government had expressed doubts as to whether the applicant had been genuinely in poor health, despite the medical evidence and the authorities’ own refusal to appoint an expert to assess his medical condition (see paragraph 42 above). Furthermore, according to him, the Government had then omitted to disclose such a crucial piece of evidence – unfavourable to them – as the conclusions of the medical panel of 11 February 2019 formed by the Ministry of Health following a request by the Government themselves. It had only been owing to his enquiries that the applicant had found out about the medical conclusion in question and had been able to provide it to the Court.", "73. The Court underlines that the only issue it is called to determine in this respect is whether the relevant statements of the applicant’s lawyer went beyond “the bounds of normal, civil and legitimate criticism” as understood in its above-cited case-law.", "74. Having regard to the material in its possession and the relevant facts (see paragraphs 56-58 above), the Court considers that the statements at issue were an emotional manifestation of the applicant’s representative’s frustration about the fact that the Government, despite being in possession of a medical opinion directly supporting the applicant’s grievances, had not submitted it in the proceedings before the Court. As to their form, those statements did not contain personal characterisations or offensive language. Although they could be described as being rather sharp and polemical, in the eyes of the Court they were not “insulting or provocative” (see Aleksanyan v. Russia, no. 46468/06, § 118, 22 December 2008; and contrast Di Salvo, cited above, and Řehák v. the Czech Republic (dec.), no. 67208/01).", "75. In the light of the foregoing, the Court does not consider that the statements of the applicant’s representative referred to by the Government amounted to an abuse of the right of petition. Accordingly, the Government’s objection must be dismissed.", "76. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "77. The applicant submitted that he had experienced health problems, albeit of lesser seriousness, starting from at least 1994. On 10 June 2015 he had been hospitalised in Moscow with an ischaemic stroke. His condition had subsequently deteriorated because of the mental stress caused by his prosecution. He was under constant medical supervision, undergoing checks and taking medication regularly.", "78. The applicant maintained that there was ample medical evidence, including the medical opinion ordered by the Government, that his transfer, if the decision to extradite him were implemented, would expose him to real risk of serious and irreparable harm.", "In particular, the medical opinion of 11 February 2019 (see paragraph 57 above) provided straightforward and unequivocal answers to the questions raised in his application, rendering the Government’s reliance on the assurances of the Russian authorities meaningless. The applicant argued that those assurances were highly formalistic and superficial considering that the Russian authorities had not been provided with specific information concerning his state of health.", "79. In their observations filed on 11 February 2019 the Government submitted that during the examination of the extradition request in respect of the applicant the Office of the Prosecutor General had not been in possession of any medical documents concerning the applicant’s state of health which would have given sufficient basis to conclude that his extradition might pose a risk to his life and health. Furthermore, when arrested in April 2017 the applicant’s health had been satisfactory. He had not complained of health issues during his temporary detention and court hearings and had actively tried to substantiate his Armenian citizenship as the basis for refusal of extradition. The applicant referred to his poor state of health as grounds excluding his transfer only after his application to the Passport and Visa Department of the police with a view to being considered an Armenian national was denied. Hence, some doubts had arisen as to the credibility of the medical documents submitted by the applicant.", "Nevertheless, after the applicant had relied on his medical condition in July 2017 during the proceedings before the Court of Appeal, the Office of the Prosecutor General had received assurances on the availability of medical care and additional assurances to the effect that the applicant’s transfer would be organised by a special convoy of the Federal Prison Service of Russia which would include a medical practitioner with the relevant specialisation (see paragraphs 26 and 27 above). Most importantly, in a letter of 14 December 2017 the Office of the Prosecutor General of Russia had provided further assurances that the medication and medical equipment required for the treatment of possible cardiovascular problems would be available during the applicant’s transfer. Furthermore, before signing the act of transfer it would be necessary for the accompanying doctor to examine the applicant’s medical records to verify the absence of contraindications for his transfer by air (see paragraph 49 above).", "The Government submitted that the applicant had not provided any medical evidence which would have addressed the possibility of his transfer in the light of the additional assurances provided by the Russian authorities. They argued that the applicant’s condition was not critical while the decision to extradite would not be final until the accompanying doctor had examined him and confirmed that he was fit to travel.", "80. In their further observations filed on 23 August 2019 the Government submitted, inter alia, that the domestic courts had upheld the Prosecutor General’s decision to extradite the applicant without having in their possession an impartial and unbiased medical opinion concerning the potential risks of the applicant’s transfer provided that constant medical supervision was ensured. Instead, the courts had referred to the assurances of the Russian authorities concerning the availability of medical supervision during and after the applicant’s transfer. The Government averred that all the relevant and necessary information concerning the applicant’s state of health had been provided to the Russian authorities and expressed readiness to present relevant documentary proof should the Court consider it necessary.", "The Court’s assessment", "(a) General principles", "81. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity.", "Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of the nation. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015, with further references).", "82. Nevertheless, according to the Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Khlaifia and Others v. Italy [GC], no. 16483/12, § 159, 15 December 2016, and Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000 ‑ XI). In order to determine whether the threshold of severity has been reached, the Court may also take other factors into consideration, in particular: the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it, although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3; the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions; and whether the victim was in a vulnerable situation (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 117, 25 June 2019).", "83. The Court has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002 ‑ III).", "84. It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if extradited, faces a real risk of being subjected to treatment contrary to Article 3 (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).", "85. In the context of the removal of seriously ill individuals, the Court has held that the authorities of the returning State have an obligation, under Article 3, to protect the integrity of the individuals concerned – an obligation which is fulfilled primarily through appropriate procedures allowing the risks relied upon to be assessed. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the individuals concerned to provide clear proof of their claim that they would be exposed to proscribed treatment. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Paposhvili v. Belgium [GC], no. 41738/10, §§ 185-87, 13 December 2016).", "86. The Court has already had occasion to apply the above-mentioned principles in cases concerning the enforcement of removal orders in respect of individuals who could be exposed to risk during transfers. In particular, the Court has found on several occasions that the transfer of an individual suffering from a serious illness would not be in breach of Articles 2 and 3 of the Convention, in so far as it was convinced that in accordance with domestic law and procedure, a removal order would not be implemented unless the individual concerned was found to be medically fit for transfer (see, in particular, Al-Zawatia v. Sweden (dec.), no. 50068/08, § 58, 22 June 2010; Karim v. Sweden, (dec.), no. 24171/05, 4 July 2006; and Imamovic v. Sweden (dec.), no. 57633/10, 13 November 2012).", "87. Lastly, in cases of removal of an applicant suffering from an illness, the Court has held that the issue to be assessed is the foreseeable consequences of such a removal for the applicant (see Paposhvili, cited above, § 187). Therefore, in cases where the applicant has not already been removed, the material point in time for the assessment must be that of the Court’s consideration of the case, and the Court may take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, mutatis mutandis, F.G. v. Sweden [GC], no. 43611/11, § 115, 23 March 2016).", "(b) Application of the general principles to the present case", "88. The Court notes at the outset that the core issue in the present case is whether the transfer (for the purpose of extradition) of the applicant, who is seriously ill, may, in itself, result in a real risk of his being subjected to treatment contrary to Article 3.", "89. The case of Imamovic v. Sweden (cited above), the circumstances of which most closely compare to those of the applicant in the present case, concerned the deportation of a Bosnian asylum-seeker who was suffering from rather severe mental and physical health problems. Having regard to the medical evidence indicating that enforcement of the deportation order would put the applicant at risk of suffering a heart attack, the Court found that “there [were] no elements indicating that Sweden [would] enforce the deportation order if the applicant’s overall state of health [was] considered too serious to travel to his home country”. That finding was further supported by the fact that in accordance with the enforcement procedure in Sweden, “the implementation of a deportation order [would] occur only if the authority responsible for the deportation [considered] that the medical condition of the alien so [permitted] and ... the responsible authority [would] ensure that appropriate measures [were] taken with regard to the alien’s particular needs”.", "90. In the light of the general principles described earlier (see, in particular, paragraphs 81-84 above) and its findings in the series of Swedish cases mentioned above, the Court considers that the transfer of an individual whose state of health is particularly poor may, in itself, result in the individual concerned facing a real risk of being subjected to treatment contrary to Article 3 (see, mutatis mutandis, Soering, cited above, § 91).", "91. That being said, the assessment of the impact of a given transfer on the person concerned must be based on specific medical evidence substantiating the specific medical risks relied upon. This would require a case-by-case assessment of the medical condition of the individual and the specific medical risks in the light of the conditions of that particular transfer. Furthermore, that assessment would need to be made in relation to the medical condition of the person concerned at a particular point in time, considering that the specific risks substantiated at a certain moment could, depending on whether they were of a temporary or permanent nature, be eliminated with the passage of time in view of developments in that person’s state of health.", "92. Turning to the present case, the Court notes that the applicant provided detailed medical information obtained from different doctors, including the chief neurologist of Armenia, attesting to severe disorders of cardiovascular and nervous systems and the associated risks if he were to travel. In particular, according to this information, the applicant suffers from the effects of a past stroke, including vestibulopathy, eye ‑ movement impairment, hemiparesis and resultant difficulty walking, atherosclerotic encephalopathy, and arterial hypertension with a risk of developing cardiovascular disease. A further stroke or a heart attack was considered as a possible development should the applicant travel by air or land (see paragraph 26 above). This diagnosis was subsequently confirmed by Dr A.K., the head of the neurological department of a hospital in Yerevan, who stated that the applicant had also developed cephalic disorder accompanied with photophobia and phonophobia and confirmed the potential risks of travel (see paragraph 30 above). Following that, the applicant was hospitalised having been diagnosed with additional conditions, including chronic insufficiency of blood circulation, frequent transient ischaemic attacks and ischaemic heart disease. His unfitness for travel was further confirmed (see paragraphs 31 and 53 above).", "93. The Court observes that throughout the domestic proceedings and in the proceedings before the Court the authorities expressed doubts in relation to the applicant’s medical condition and the claimed risks (see, for example, paragraphs 34 and 42 above). Nevertheless, the authorities did not initiate their own assessment of the applicant’s state of health while the applicant’s request seeking the appointment of a forensic medical expert was refused by the Court of Appeal (see paragraph 35 above). Furthermore, neither in the domestic proceedings nor in the proceedings before the Court did the authorities question the reliability of the medical certificates submitted by the applicant or the credibility of the medical professionals who had issued them. While it is true that the applicant did not submit any medical documents concerning the history of his medical condition, such as the results of his past medical examinations and treatment received, if any, in his submission his state of health sharply worsened after 2015 as a result of the anxiety caused by his prosecution.", "94. Having regard to the material in its possession and considering that the Government have not submitted any medical evidence rebutting that submitted by the applicant in relation to his state of health, in the Court’s view there are no grounds to doubt the credibility of the medical data provided by the applicant. The Court finds it therefore established that the applicant suffers from serious cardiovascular and neurological disorders with associated conditions as described therein.", "95. The Court notes that the Prosecutor General made a decision to grant the request to extradite the applicant on 23 June 2017. Although by then the applicant had already been transferred to the Central Prison Hospital due to the deterioration of his health (see paragraph 21 above), there is nothing to indicate that the Prosecutor General was in possession of any medical documents concerning the applicant’s state of health when taking the decision.", "96. Having said that, the Court observes that the applicant submitted relevant medical evidence, in particular the medical certificate issued by head of the Central Prison Hospital on 3 July 2017 and the note issued by the chief neurologist of the Ministry of Health on 12 July 2017 (see paragraphs 23 and 26 above) to the Court of Appeal during the examination of his appeal against the extradition decision. Nevertheless, the Court of Appeal rejected the applicant’s arguments concerning the risks of his transfer with reliance on the assurances provided by the Russian authorities rather than as a result of a careful scrutiny of the applicant’s medical condition and the alleged risks of his transfer (see paragraph 28 above). Notably, as already mentioned above, the Court of Appeal refused to appoint a forensic medical expert to examine the applicant’s state of health during the fresh examination of the applicant’s appeal following the remittal of the case by the Court of Cassation (see paragraph 35 above).", "97. In their further observations filed on 23 August 2019, the Government admitted that the domestic courts had upheld the Prosecutor General’s decision to extradite the applicant without having had in their possession an impartial and unbiased medical opinion concerning the potential risks of the applicant’s transfer provided that constant medical supervision was ensured. Instead, the courts had relied on the assurances of the Russian authorities concerning availability of medical supervision during and after the applicant’s transfer (see paragraph 80 above).", "98. The Court concludes from the above that, although the applicant had provided objective evidence such as medical certificates showing the particular seriousness of his state of health and the possible significant and irreversible consequences to which his transfer might lead, the courts examining the legality of the decision to extradite him failed to properly assess the risks that such consequences could occur.", "99. The Court notes that in their submissions the applicant and the Government referred to and relied on subsequent factual information about the applicant’s medical condition and the risks of its deterioration if he were transferred. Therefore, the Court will proceed with its assessment also in light of the information that was not available when the final decision concerning the applicant’s extradition was taken (see paragraph 87 above).", "100. When discharged from the hospital where the applicant had been admitted upon release from detention he was considered to be, inter alia, at high risk, with chronic insufficiency of blood circulation along with frequent transient ischaemic attacks. His not being fit to travel was again confirmed (see paragraph 53 above).", "101. The applicant’s unsuitableness for travel was further confirmed by a medical certificate of 11 January 2019 (see paragraph 55 above).", "102. Subsequently, a medical panel convened by the Minister of Health was requested to answer specific questions concerning the potential risks to the applicant’s health in the event of his travelling and the possibility of elimination or minimisation of the risks, if any, if the presence of a relevant medical specialist were ensured during the transfer. According to its opinion issued on 11 February 2019, the high risks associated with the applicant’s transfer by air or land were linked to his chronic diseases and their possible unpredictable aggravation whereas the presence of an accompanying doctor could not eliminate those risks since emergency medical care in a specialist medical institution might become necessary should the applicant’s health sharply deteriorate (see paragraphs 56 and 57 above).", "103. In reply to the Court’s questions put to the Government during the examination of the applicant’s request for an interim measure, they submitted that according to the established practice a person’s extradition from Armenia was performed only if a medical document proving his or her fitness to be transferred had been issued by the Central Prison Hospital. At the same time, in their observations filed on 11 February 2019 the Government submitted that the decision to extradite the applicant would not be final until the accompanying doctor had examined him and confirmed that he was fit to travel (see paragraph 79 above). Subsequently, in their submissions made after the receipt of the panel’s conclusion of 11 February 2019 (see paragraph 80 above), the Government still referred to the assurances provided by the Office of the Prosecutor General of Russia to argue that the domestic authorities had taken all the necessary measures, considering the information at their disposal, to ensure that the applicant’s transfer would be in line with his state of health. However, given that the assurances provided by the Russian authorities seem to have been limited merely to the availability of medical supervision during the applicant’s transfer (see paragraphs 49 and 80 above), they alone cannot provide a sufficient basis for the Court to conclude that the anticipated conditions of the transfer would remove the existing risk of a significant deterioration in the applicant’s health if his removal from Armenia were to be effected while his state of health was as indicated by the latest information made available to the Court (see paragraphs 57, 58 and 59 above) (see, mutatis mutandis, Tarariyeva v. Russia, no. 4353/03, §§ 112-117, ECHR 2006 ‑ XV (extracts)).", "104. As noted above, in several previous cases concerning the enforcement of removal orders in respect of individuals who could be exposed to risk during transfer, the Court underlined the importance of the existence of a relevant domestic legal framework and procedure whereby the implementation of a removal order would depend on the assessment of the medical condition of the individual concerned (see, in particular, Al ‑ Zawatia, cited above, § 58; Karim, cited above; and Imamovic, cited above).", "105. The Court observes, however, that no such legal safeguards or procedure have been shown to exist in the present case. Instead, as noted above, the Government initially submitted that it was “established practice” that an extradition decision would be executed upon the condition that the Central Prison Hospital confirmed that the person concerned was medically fit for travel. However, the Government neither referred to any domestic legal provisions to support this submission, nor did they provide any examples to substantiate the existence of such “established practice”. The Government then referred to the fact that the accompanying doctor of the receiving State would need to confirm whether the applicant was fit for travel for the extradition decision to be enforced. Similarly, this submission was not based on any legal regulations but rather on the letter of the Office of the Prosecutor General of Russia dated 14 December 2017 (see paragraph 49 above).", "106. The Court is not convinced that such an assessment by the Russian authorities immediately before the transfer, even if carried out, would be capable of adequately addressing the risks to which the applicant could be exposed in the absence of any indication of the extent of such an assessment and – in the absence of any legal regulation of the matter – its effect on the binding nature of the final decision to extradite the applicant (see, mutatis mutandis, Paposhvili, cited above, § 202; and, contrast, Karim, cited above).", "107. The Court also notes that the Government’s position with regard to the enforcement of the extradition decision in the light of the conclusion of the medical panel dated 11 February 2019 remains unclear. In particular, although the Government requested the relevant conclusion in order to obtain an “impartial medical evaluation of the potential risks associated with the applicant’s transfer” (see paragraph 54 above), in their further observations they did not specifically elaborate on the findings of the medical panel and, more importantly, on the question of whether or not those findings were to have an impact on their decision to proceed with the applicant’s extradition.", "108. In view of the foregoing, the Court finds that, as matters stood at the time when the exchange of the observations between the parties was finalised (see paragraphs 58 and 80 above), there was sufficient information to conclude that, considering the particularly poor state of the applicant’s health, his transfer, even in the presence of an accompanying doctor, would result in a real risk of him being subjected to treatment contrary to Article 3.", "109. In reaching this finding, the Court is mindful of the particular context of extradition and the importance of not undermining its foundations (see Soering, cited above, § 89). In particular, the Court has held that the presence of third-party rights requires that in the examination of whether there exists a concrete and individualised risk of ill-treatment, negating the requested State’s ability to surrender a person, the requested State must rely on a solid factual basis to support a finding that the required threshold of risk is met (see Romeo Castaño v. Belgium, no. 8351/17, §§ 85-90, 9 July 2019).", "110. It follows that there would be a violation of Article 3 of the Convention if the applicant were to be extradited to Russia without the Armenian authorities having assessed, in accordance with that provision, the risk faced by him during his transfer in the light of the information concerning his state of health.", "111. In view of this finding the Court considers that it is not necessary to examine the complaint under Article 2 of the Convention (ibid., § 207).", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "112. Lastly, relying on Articles 18, 34 and 38 of the Convention, the applicant complained that the Government had failed to disclose the medical opinion of 11 February 2019.", "113. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "RULE 39 OF THE RULES OF COURT", "114. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "115. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 41 above) should remain in force until the present judgment becomes final or until the Court takes a further decision in this connection.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "116. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "117. The applicant claimed 20,000 euros (EUR) in respect of the non ‑ pecuniary damage suffered as a result of the stress and anxiety which aggravated his conditions.", "118. The Government were of the view that the claim was exorbitant and that the finding of a breach would amount to sufficient just satisfaction.", "119. The Court finds that there is no causal link between the breach of Article 3 relating to the applicant’s potential extradition to Russia and the alleged stress and anxiety suffered by him. Since the Armenian authorities have complied with the interim measure indicated by the Court (see paragraph 41 above) and refrained from enforcing the decision to extradite the applicant until the conclusion of these proceedings, no breach of Article 3 has yet occurred. Hence, the Court’s finding that the implementation of the decision to extradite the applicant to Russia before such time as his condition rendered him fit for transfer would give rise to a breach of that Article amounts to sufficient just satisfaction for the purposes of Article 41 (see, among other authorities, Soering, cited above, § 127, Umirov v. Russia, no. 17455/11, § 160, 18 September 2012 and M.G. v. Bulgaria, no. 59297/12, § 102, 25 March 2014).", "Costs and expenses", "120. The applicant also claimed EUR 8,048 for the costs and expenses incurred before the Court. That amount included EUR 7,490 for the costs of legal representation in the proceedings before the Court and EUR 558 for postal and translation expenses.", "121. The Government submitted that the claim for legal fees incurred before the Court was not itemised and that in any event the amounts claimed were excessive while the claim for postal and translation costs was not duly substantiated.", "122. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily and are reasonable as to quantum.", "123. The Court observes that the applicant submitted two contracts for provision of legal services concluded with his former and current representatives before the Court, which indicated specific amounts due for each type of work to be carried out. The Court therefore does not accept the Government’s argument that the claims for legal costs were not itemised. On the other hand, the Court considers that not all the legal costs claimed were necessarily and reasonably incurred, including some duplication in the work carried out by the applicant’s two representatives. Furthermore, the Court observes that only part of the claims in respect of postal costs was supported by documentary evidence.", "124. In view of the foregoing and regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.", "Default interest", "125. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Introduction", "7. The applicant was born in 1960 near Bethlehem, then administered as part of the Kingdom of Jordan. He arrived in the United Kingdom in September 1993, having previously fled Jordan and gone to Pakistan. He made a successful application for asylum, the basis of which was first, that he had been detained and tortured in March 1988 and 1990-1991 by the Jordanian authorities and second, that he had been detained and later placed under house arrest on two further occasions. The applicant was recognised as a refugee on 30 June 1994 and granted leave to remain until 30 June 1998. As is the normal practice, the Secretary of State did not give reasons for his decision for recognising the applicant as a refugee.", "8. On 8 May 1998 the applicant applied for indefinite leave to remain in the United Kingdom. This application had not been determined before the applicant’s arrest on 23 October 2002. On that date he was taken into detention under the Anti-terrorism, Crime and Security Act 2001 (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 90, 19 February 2009). When that Act was repealed in March 2005, the applicant was released on bail and then made subject to a control order under the Prevention of Terrorism Act 2005 (ibid., §§ 83 and 84). On 11 August 2005, while his appeal against that control order was still pending, the Secretary of State served the applicant with a notice of intention to deport (see section 3, paragraph 25 below).", "B. Previous criminal proceedings in Jordan", "1. The Reform and Challenge Trial", "9. In April 1999, the applicant was convicted in absentia in Jordan of conspiracy to cause explosions, in a trial known as the “reform and challenge” case. He was the twelfth of thirteen defendants.", "10. The case involved an allegation of a conspiracy to carry out bombings in Jordan, which resulted in successful attacks on the American School and the Jerusalem Hotel in Amman in 1998. There were further convictions for offences of membership of a terrorist group, but these matters were the subject of a general amnesty. The applicant was sentenced to life imprisonment with hard labour at the conclusion of the trial.", "11. During the trial, one witness, Mohamed Al-Jeramaine, confessed that he and not the defendants had been involved in the bombings. The State Security Court hearing the case took the view that his confession was false, and demonstrably so, because of discrepancies between what he said about the nature of the explosives, for example, and other technical evidence. Mr Al-Jeramaine was later executed for homicides for which he had been convicted in another trial.", "12. The applicant maintains that the evidence against him was predominantly based upon an incriminating statement from a co-defendant, Abdul Nasser Al-Hamasher (also known as Al-Khamayseh). In his confession to the Public (or State) Prosecutor, Mr Al-Hamasher alleged that the applicant had provided prior encouragement for the attacks. He was also said to have congratulated the group after the attacks.", "13. Mr Al Hamasher, along with several other defendants, had complained during the proceedings before the State Security Court that they had been tortured by the Jordanian General Intelligence Directorate (“the GID”), which shares responsibility for maintaining internal security and monitoring security threats in Jordan with the Public Security Directorate and the military. At the end of the period of interrogation during which they claimed to have been tortured, the Public Prosecutor took a statement from each defendant.", "14. At the trial there was evidence from lawyers and medical examiners and relatives of the defendants that there were visible signs of torture on the defendants. However, the State Security Court concluded that the defendants could not prove torture.", "15. There were a number of appeals to the Court of Cassation and remittals back to the State Security Court, although, as the applicant had been convicted in absentia, no appeals were taken on his behalf. In the course of those appeals, the convictions were upheld on the basis that the relevant statements had been made to the Public Prosecutor. The confessions in those statements thus constituted sufficient evidence for conviction if the court accepted them and if the Public Prosecutor was satisfied with the confessions. The Court of Cassation rejected the claim that the Public Prosecutor had to prove that the defendants had confessed to him of their own accord: the Public Prosecutor’s obligation to prove that a confession was obtained willingly only arose where the confession had not been obtained by him. The confessions in question were authentic and there was no evidence that they had been made under financial or moral coercion.", "16. The Court of Cassation then considered the impact of the allegations that the confessions to the State Prosecutor had resulted from coercion of the defendants and their families while they were in GID detention. Such conduct during an investigation was against Jordanian law and rendered the perpetrators liable to punishment. However, even assuming that the defendants’ allegations were true, that would not nullify the confessions made to the Public Prosecutor unless it were proved that those confessions were the consequence of illegal coercion to force the defendants to confess to things which they had not done. The defendants had not shown that was the case.", "17. As a result of the applicant’s conviction in this trial, the Jordanian authorities requested the applicant’s extradition from the United Kingdom. In early 2000, the request was withdrawn by Jordan.", "2. The millennium conspiracy trial", "18. In the autumn of 2000 the applicant was again tried in absentia in Jordan, this time in a case known as the “millennium conspiracy”, which concerned a conspiracy to cause explosions at western and Israeli targets in Jordan to coincide with the millennium celebrations. The conspiracy was uncovered before the attacks could be carried out. The applicant was alleged to have provided money for a computer and encouragement through his writings, which had been found at the house of a co-defendant, Mr Abu Hawsher. The applicant maintains that the main evidence against him was the testimony of Abu Hawsher.", "19. Most of the defendants were convicted on most charges; some were fully or partly acquitted. The applicant was convicted and sentenced to 15 years’ imprisonment with hard labour. Other defendants, including Abu Hawsher, were sentenced to death. On appeal certain of the defendants, including, it appears, Abu Hawsher, claimed to have been tortured during 50 days of interrogation when they were denied access to lawyers. The Court of Cassation rejected this ground of appeal, holding that the minutes of interrogation showed that each defendant had been told of his right to remain silent about the charges unless their lawyer was present. The applicant also states that the Court of Cassation found that the alleged ill-treatment in GID custody was irrelevant because the State Security Court did not rely on the defendants’ confessions to the GID but their confessions to the Public Prosecutor. Abu Hawsher remains under sentence of death.", "20. The findings of the United Kingdom Special Immigration Appeals Commission (SIAC) in respect of the evidence presented at each trial are set out at paragraph 45 below. The further evidence which has become available since SIAC’s findings, and which has been submitted to this Court, is summarised as paragraphs 94–105 below.", "C. The agreement of a memorandum of understanding (MOU) between the United Kingdom and Jordan", "21. In October 2001, the Foreign and Commonwealth Office advised the United Kingdom Government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. In March 2003, after a Government review of the possibility of removing such barriers to removal, the Foreign and Commonwealth Office confirmed that its advice of October 2001 remained extant but that it was considering whether key countries would be willing and able to provide the appropriate assurances to guarantee that potential deportees would be treated in a manner consistent with the United Kingdom’s obligations. In May 2003, the Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of memoranda of understanding, might be a way of enabling deportation from the United Kingdom.", "22. In November 2003, the British Embassy in Amman was instructed to raise the idea of a framework memorandum of understanding (MOU) with the Jordanian Government. In February 2005, after meetings between the Prime Minister of the United Kingdom and the King of Jordan, and between the Secretary of State for the Home Department and the Jordanian Foreign Minister, agreement was reached on the principle of an MOU.", "23. Further negotiations took place in June 2005 and an MOU was signed on 10 August 2005. That MOU set out a series of assurances of compliance with international human rights standards, which would be adhered to when someone was returned to one State from the other (see paragraph 76 below). The same day, a side letter from the United Kingdom Chargé d’Affaires, Amman, to the Jordanian Ministry of the Interior was signed, which recorded the Jordanian Government’s ability to give assurances in individual cases that the death penalty would not be imposed. In respect of the applicant, further questions as to the conduct of any retrial he would face after deportation were also put to the Jordanian Government and answered in May 2006 by the Legal Adviser at the Jordanian Ministry of Foreign Affairs.", "24. The MOU also made provision for any person returned under it to contact and have prompt and regular visits from a representative of an independent body nominated jointly by the United Kingdom and Jordanian Governments. On 24 October 2005, the Adaleh Centre for Human Rights Studies (“the Adaleh Centre”) signed a monitoring agreement with the United Kingdom Government. On 13 February 2006, the terms of reference for the Adaleh Centre were agreed (see paragraph 80 below).", "D. The applicant’s appeal against deportation", "25. On 11 August 2005, that is, the day after the MOU was signed, the Secretary of State served the applicant with the notice of intention to deport. The Secretary of State certified that the decision to deport the applicant was taken in the interests of national security. The applicant appealed to SIAC against that decision arguing, inter alia, that it was incompatible with Articles 2, 3, 5 and 6 of the Convention. Relying on his previous asylum claim, he argued that his high profile would mean he would be of real interest to the Jordanian authorities. If returned, he would also face retrial for the offences for which he had been convicted in absentia. He would thus face lengthy pre-trial detention (in breach of Article 5) and, if convicted, would face a long term of imprisonment. All these factors meant he was at real risk of torture, either pre-trial or after conviction, to obtain a confession from him or to obtain information for other reasons. He was also at risk of the death penalty or rendition to other countries, such as the United States of America. Relying on Article 6, he alleged that his retrial would be flagrantly unfair: the State Security Court, a military court, lacked independence from the executive and there was a real risk that evidence obtained by torture – either of him, his co-defendants or other prisoners – would be admitted against him.", "1. Proceedings before SIAC", "(a) The conduct of proceedings before SIAC and its national security findings", "26. The applicant’s appeal was dismissed by SIAC on 26 February 2007. The appeal had been heard by SIAC in two parts: an “open session”, where the Secretary of State’s case and evidence was presented in the presence of the applicant and his representatives, and a “closed session” where parts of the Secretary of State’s case which could not be disclosed for security reasons were presented (see paragraph 69 below). SIAC heard evidence in closed session relating to the process by which the MOU had been agreed, the extent to which it would mitigate the risk of torture and also evidence as to the national security threat the applicant was alleged to have posed to the United Kingdom (“closed material”). In the closed sessions, the applicant and his representatives were excluded but his interests were represented by special advocates. SIAC then delivered an “open judgment”, which is publicly available, and a “closed judgment”, which was given only to the Secretary of State and the special advocates.", "27. In reaching its decision as to whether the applicant’s deportation was necessary in the interests of national security, SIAC considered the Secretary of State’s case to be “well proved” since the applicant was regarded by many terrorists as a spiritual adviser whose views legitimised acts of violence. However, SIAC did not take into account either of the applicant’s Jordanian convictions in absentia, which were originally advanced as part of the Government’s case. The reason for this was that the Government had adopted what was described as a “pragmatic approach” in withdrawing reliance upon any evidence which it was alleged might have been obtained by torture on the grounds that it would require an investigation as to whether it was obtained by torture. This was done in accordance the House of Lords’ ruling in A. and others (no. 2) to that effect (see paragraphs 136 and 137 below).", "28. SIAC then reviewed the evidence it had heard from various sources including a senior United Kingdom diplomat, Mr Mark Oakden, who gave evidence on the negotiation of the MOU, the monitoring agreement with the Adaleh Centre and on the risk faced by the applicant in Jordan. On behalf of the applicant, it heard evidence on the Jordanian regime from three academics. It also received evidence from an Arabic speaking barrister, Ms Rana Refahi, who had travelled to Jordan to conduct research on the previous two trials including interviews with the defendants and their lawyers. Additionally, it considered evidence of the United States Government’s interest in the applicant and allegations that a Jordanian national had been the subject of extraordinary rendition from Jordan to the United States.", "(b) SIAC’s findings on the MOU", "29. SIAC found that this Court’s judgments in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005 ‑ I, showed that reliance could lawfully be placed on assurances; but the weight to be given depended on the circumstances of each case. There was a difference between relying on an assurance which required a State to act in a way which would not accord with its normal law and an assurance which required a State to adhere to what its law required but which might not be fully or regularly observed in practice. Referring to a decision of the United Nations Committee Against Torture, Agiza v. Sweden (see paragraph 147 below), where the Swedish authorities had expelled an Egyptian national after receiving assurances from Egypt, SIAC continued:", "“The case of Agiza stands as a clear warning of the dangers of simple reliance on a form of words and diplomatic monitoring. There were already warning signs which ought to have alerted the Swedish authorities to the risks, including the role they had permitted to a foreign intelligence organisation. But we note what to us are the crucial differences: the strength, duration and depth of the bilateral relationship between the two countries by comparison with any that has been pointed to between Sweden and Egypt; the way in which the negotiations over the MOU have proceeded and the diplomatic assessment of their significance; the particular circumstances of [the present applicant] and Jordan; the degree of risk at the various stages, in the absence of the MOU, particularly at the early stages of detention which is when the risk from torture by the GID would normally be at its greatest and when the confirmed torture of Agiza in Egypt appears to have occurred; and the speed with which the monitors would be seeking and we believe obtaining access to the Appellant in those early days. The Swedes felt that to seek to see Agiza would betray a want of confidence in the Egyptians, whereas there is no such feeling in either the UK, the [Adaleh] Centre or the Jordanian Government. Quite the reverse applies. One aspect of that case which also troubled the [Committee Against Torture] was that Agiza had been removed without final judicial determination of his case. That would not be the position here.”", "30. In the present case, the political situation in Jordan and the freedom, albeit limited, of non-governmental organisations, the press and Parliament to express concerns would reduce the risks the applicant faced. In addition, the level of scrutiny Jordan had accepted under the MOU could not but show that it was willing to abide by its terms and spirit. Each country had a real interest in preventing breaches of the MOU: the diplomatic relationship between the United Kingdom and Jordan was friendly and long-standing and of real value to Jordan and it would have a real incentive to avoid being seen as having broken its word. Both countries had an interest in maintaining co-operation on counter-terrorism matters. The United Kingdom had a very real concern that it should be able to remove foreign nationals without breaching their rights under Article 3, so failure in such a highly publicised case would be a major setback for that process. That concern would thus act as a further incentive to investigate any breaches of the MOU. While the MOU did not specify what steps would be taken in such an investigation, SIAC accepted evidence from the Mr Oakden that any failure of the Jordanian Government to respond to diplomatic queries would lead to “rapidly escalating diplomatic and Ministerial contacts and reactions”.", "31. SIAC accepted that there were some weaknesses in the MOU and monitoring provisions. Some protections, such as prompt access to a lawyer, recorded interviews, independent medical examinations and prohibition on undisclosed places of detention, were not explicitly present but, in reality, most of these aspects were covered. There was no guarantee that access to the applicant, as required by the Adaleh Centre’s terms of reference, would always be granted but any refusal would be brought to light quite quickly; in the early period of detention, the Centre was expected to visit the applicant three times a week. SIAC also expected the GID and the Jordanian Government to react swiftly to any approach by the United Kingdom were a visit to be refused. It was “disturbing” that the United Nations Special Rapporteur on Torture had been refused access to a GID facility in June 2006, despite a prior arrangement that he would be permitted free access. However, on the evidence it had heard, SIAC found that there was no real risk of ill-treatment of the applicant by the GID. There was a weakness in the Adaleh Centre’s “relative inexperience and scale”; it would be undertaking a task which would be new to it; and it did not have the expertise among its staff, as it had recognised. It was a fairly new body with limited resources and staff, although this could be overcome and the United Kingdom Government would bear the cost. It was the very fact of monitoring visits which was important and the absence of specialist expertise was not fatal to their value.", "(c) SIAC’s findings on Article 3", "32. The United Kingdom Government did not contest the general thrust of the available material in relation to Jordan’s human rights record and, in SIAC’s view, details of human rights violations in Jordan remained relevant to the assessment of the risk faced by the applicant. The Government also took the position that it could not return the applicant to Jordan, in conformity with its international obligations, in the absence of the particular measures contained in the MOU. Nevertheless, SIAC found it important to consider the risks faced by the applicant by reference to the likely sequence of events if he were to be returned. It found that the MOU might not be necessary for each risk but rather reinforce the protection available.", "33. SIAC accepted that, on return, the applicant would be taken into the custody of the GID and retried on the two charges for which he had been convicted in absentia. He would be accompanied by a representative of the Adaleh Centre to his place of detention and be medically examined. SIAC also accepted that the GID would interrogate the applicant with a view to obtaining a confession for use at trial and for more general intelligence purposes, though SIAC found it to be speculative that GID would interrogate the applicant about other offences in order to bring further charges against him; there was no evidence of any other charges outstanding. SIAC also accepted that the United States would seek to question the applicant and that this would take place soon after his arrival in Jordan. However, there was no real risk that Article 3 would be breached before the conclusion of the retrial.", "34. There was a real risk of torture or ill-treatment of an “ordinary Islamist extremist” in GID detention before charge since such ill-treatment was widespread and longstanding and there was a climate of impunity and evasion of international monitoring in the GID. However, the applicant would be protected by his high profile, by the MOU and the monitoring agreement, especially since the Adaleh Centre would be “keen to prove its mettle” and would itself be subject to the vigilance of other non ‑ governmental organisations. This would also prevent any real risk of the use by the GID of tactics such as last-minute refusals of access, claims that the applicant did not wish to see the monitors or moving him elsewhere without notification. Access by the Adaleh Centre would also prevent the applicant’s incommunicado detention.", "35. The MOU would also counteract the climate of impunity prevailing in the GID and toleration of torture by its senior members. The MOU and the monitoring arrangements were supported at the highest levels in Jordan – the King of Jordan’s political power and prestige were behind the MOU – so it was reasonable to assume that instructions on how to treat the applicant had been given to the GID and it would be aware that any breaches would not go unpunished. Moreover, senior members of the GID had participated in the MOU negotiations and therefore would know the consequences of any failure to comply. Even if abuses were normally the work of rogue officers, the specific and unusual position of the applicant and the effect of the MOU would lead to senior officers preventing ill-treatment in his case, even if they did so only out of self-interest.", "36. Questioning by the United States was not forbidden by the MOU and, to SIAC, it was probable that the United States Central Intelligence Agency would be allowed to question the applicant directly with the GID present. However, the United Kingdom would have made clear to the United States its interests in ensuring that the MOU was not breached. The Jordanian authorities and United States would be careful to ensure that the United States did not “overstep the mark”. Assuming that the applicant remained in GID custody and was not surrendered to the United States, there would be no real risk of ill-treatment at the pre-trial stage. It was also highly unlikely that the applicant would be placed in any secret GID or CIA detention facility in Jordan.", "37. The same factors applied to any questioning which might take place soon after the conviction or acquittal of the applicant. The MOU would continue to apply and it would be in the interests of both the Jordanians and the Americans to conduct any interrogation at the earliest opportunity rather than wait until after trial. The applicant’s high profile was also found to be “unlikely to diminish much for some years”.", "38. There was little likelihood of the Jordanian authorities bringing any subsequent charges which carried the death penalty or seeking the death penalty in respect of the charges for which the applicant was to be retried. Instead, if he were convicted, the applicant would face a lengthy period of imprisonment. There was a real risk of a life sentence in respect of the Reform and Challenge conspiracy, although there was a greater prospect that it would be considerably less because of the way in which sentences on the other defendants appeared to have been reduced on appeal, to 4 or 5 years. There was no real risk of a life sentence in the millennium conspiracy retrial. There was no rule that would prevent a higher sentence being imposed than the 15 year sentence that had been imposed in absentia. However, the clear practice was against imposing higher sentences in retrials following initial convictions in absentia and there was no reason why a more unfavourable view would be taken of the applicant when he was present than when he was absent. The applicant would serve any sentence in an ordinary prison and not a GID detention facility; the sentence of hard labour did not connote any additional punishment. General conditions would not breach Article 3 and, although beatings sometimes occurred, there was no evidence that the applicant would be targeted as a political Islamist prisoner. His status would again act to protect him.", "39. In respect of rendition, there were “powerful incentives” for the Jordanian and United States Governments not to allow this to happen, not least the real domestic political difficulties this would create for the Jordanian Government and the unwillingness of the United States to destabilise the Jordanian regime. Any instances of alleged rendition from Jordan had involved people of other nationalities or, in one case, of a dual US/Jordanian national. It was also very unlikely that the applicant would be removed to a secret CIA facility in Jordan since this would require the connivance of the Jordanian authorities contrary to the MOU. It was also unlikely that the United States Government would seek the extradition of the applicant from Jordan when it had not sought his extradition from the United Kingdom and there would be political difficulties for Jordan to accede to such a request.", "(d) SIAC’s findings on Article 5", "40. In relation to the applicant’s detention following his removal to Jordan, SIAC found that the time limits for notifying the legal authorities of an arrest (48 hours) and for bringing formal charges (15 days) were regularly and lawfully extended by the courts at the request of the prosecutor, in stages of up to 15 days to a maximum of 50 days. It would therefore be compatible with Jordanian law for the applicant to be held in detention for 50 days without being physically brought before a court before being charged. Such extensions were approved by a judicial authority, although not necessarily in the physical presence of the suspect.", "41. SIAC noted that the MOU did not explicitly require that there be no extensions of time beyond the initial 15 day detention but required that a returned person be brought promptly before a judge or other person authorised by law to determine the lawfulness of his detention. Though “promptly” was not defined in the MOU, SIAC found that this part of the MOU would be carried out, particularly since this was one of the earliest points at which the MOU would be engaged, and that the applicant’s first appearance before a judicial authority would be within 48 hours. It would not breach the MOU if the applicant were to be detained for a maximum of 50 days, by means of judicially approved 15 day extensions, or if he were absent when those later decisions were taken. However, in reality the total period of 50 days was unlikely to be sought, even without the MOU, because the applicant faced a retrial and the case dossiers had already been through the trial and appeal process a number of times.", "(e) SIAC’s findings on Article 6", "42. It was common ground before SIAC that the applicant’s previous convictions would be set aside and he would face retrial before the State Security Court on the same charges.", "43. In addition to his two challenges to the retrial process (the impartiality of the State Security Court and the use of evidence obtained by torture) the applicant also argued that he would be questioned in detention without the presence of a lawyer by the GID, United States officials or the Public Prosecutor. The latter had the power under Article 64(3) of the Jordanian Criminal Trial Procedures Code to conduct an investigation in the absence of a lawyer “whenever he [deemed] it necessary in order to reveal the truth”. This decision was not subject to review, though SIAC also noted that a confession before the Public Prosecutor was not admissible unless the individual had been warned that he need not answer questions without his lawyer present. SIAC thought it unlikely that the applicant would have a lawyer present during questioning by the GID or United States officials but very likely he would have access to a lawyer for any appearance before a judge or the Public Prosecutor. In terms of pre-trial preparation by the defence, the period and facilities available would be less extensive than in the United Kingdom but nonetheless better than would normally be the case in Jordan.", "44. With regard to the lack of independence and impartiality of the State Security Court, SIAC found that the court would consist of three judges, at least two of whom would be legally qualified military officers with no security of tenure. The Public Prosecutor would also be a military officer. Appeal would lie to the Court of Cassation, a civilian court, though that court could not hear argument on any unfairness of the trial arising from the military composition of the State Security Court.", "45. As to the potential use of evidence obtained by torture in the applicant’s retrial, SIAC found as follows:", "“418. The Jordanian legal system, by its terms, does not therefore permit the use of involuntary confession or incriminatory statements. There is a judicial examination of allegations of that nature before the evidence is admitted. Those allegations can themselves be tested by evidence. How far those allegations can be practicably tested is affected by certain features of the system. The burden of proof for excluding confessions made to the Prosecutor lies on the defendant. There is obvious difficulty in proving prior acts or threats by the GID in the absence of systems for recording questioning, for ensuring the presence of lawyers during questioning, and independent prompt medical examinations. There is likely to be considerable reluctance on the part of the Court to accept that confessions to the Prosecutor, a common source of evidence, are tainted by ill-treatment. The Court or Prosecutor does not appear prepared to compel the appearance of GID officials to testify about these allegations. There may be a sense that these allegations are made routinely, as a matter of defence strategy.", "419. There may well be a greater willingness to test the nature of confessions made only in the course of GID questioning. There is some evidence that at least at Court of Cassation level, confessions alleged to have been obtained by torture have been excluded, (though it is not clear whether those were made to the GID or to the Prosecutor).", "420. However, the general background evidence and that specific to the two trials in question shows that there is at least a very real risk that the incriminating statements against the [applicant] were obtained as a result of treatment by the GID which breached Article 3 ECHR; it may or may not have amounted to torture. It is very improbable that those statements would be excluded on the retrial, because the SSCt is unlikely to be persuaded that they were so obtained, particularly having already rejected that assertion at the first trials, although the makers could give evidence that they were so obtained and were in fact untrue.”", "There was, therefore, a high probability that the past statements made to the Public Prosecutor which incriminated the applicant would be admitted. SIAC further found that those statements would be of considerable, perhaps decisive, importance against him. On this aspect of the retrial, SIAC held:", "“439. To us, the question comes back to whether or not it is unfair for the burden of proof in Jordan to lie where it does on this issue; we do not think that to be unfair in itself. However, this burden of proof appears to be unaccompanied by some of the basic protections against prior ill-treatment or means of assisting its proof eg video or other recording of questioning by the GID, limited periods of detention for questioning, invariable presence of lawyers, routine medical examination, assistance from the Court in calling relevant officials or doctors. The decisions are also made by a court which lacks independence and does not appear to examine closely or vigorously allegations of this nature. It is taking these points in combination which leads us to conclude that the trial would be likely to be unfair within Article 6 because of the way the allegations about involuntary statements would be considered.”", "46. SIAC concluded that, despite its findings in respect of the independence and impartiality of the State Security Court and the real risk of the admission of evidence obtained contrary to Article 3, there would be no flagrant denial of justice under Article 6 of the Convention if the applicant were retried in Jordan. SIAC stated that the retrial would take place “within a legally constructed framework covering the court system, the procedural rules and the offences”, the applicant would be present and it would be in public. The dossier from the original trial would be before the retrial court but the applicant could effectively challenge its contents. The execution of Al-Jeramaine and the difficulty faced by other witnesses, notably Abu Hawsher, would not make the retrial unfair. SIAC concluded:", "“446. We accept the lack of institutional independence in the SSCt. The lack of independence for SSCt Judges is in the structure and system. There is no evidence as to why particular judges might be chosen for particular cases, or that they are ‘leaned on’. But the SSCt is not a mere tool of the executive: there is sound evidence that it appraises the evidence and tests it against the law, and acquits a number of defendants. It has reduced sentences over time.", "447. Its judges have legal training and are career military lawyers. There is a very limited basis beyond that for saying that they would be partial, and that has not been the gravamen of the complaint. Their background may well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence. There would be considerable publicity given to the retrial and public trials can encourage greater care and impartiality in the examination of the evidence. This would not be a mere show trial, nor were the first trials; nor would the result be a foregone conclusion, regardless of the evidence.", "448. Reasons are given for the decisions, and an appeal to the Court of Cassation is available. The fact that such an appeal cannot cure the want of structural independence in the SSCt is not a reason for discounting its existence in the overall assessment of whether there would be a complete denial of Article 6 rights. This Court is a civilian court and the evidence of undue executive influence through appointment or removal is quite sparse. There is no evidence again as to how its panels are chosen, nor that they are “leaned on” by the executive. It plainly operates as a corrective to the rulings of the SSCt on law and procedure, and is of some relevance to factual matters, even though it does not hear the evidence all over again or have a full factual jurisdiction except on Prosecutors’ appeals. The probable sentences are not wholly disproportionate to the offences.", "449. We have discussed at length the approach of the SSCt to the admission of statements to a prosecutor allegedly given as a result of prior ill-treatment. Although we take the view that a contribution of factors would probably make the retrial unfair in that respect, they do not constitute a complete denial of a fair trial. The existence of a legal prohibition on the admissibility of such evidence cannot be ignored, nor the fact that the SSCt would hear evidence relating to the allegations. The role of the Court of Cassation in reviewing and at times overturning the conclusions of the SSCt on this issue is material. The want of evidential or procedural safeguards to balance the burden of proof, and the probable cast of mind towards statements made to a prosecutor/judge in a civil law system, all within a security court dominated by military lawyers, does not suffice for a complete denial of justice.", "450. There is a danger, given the inevitable focus on what is said to be potentially unfair about the retrial, in focussing exclusively on deficiencies when deciding whether there would be a total denial of the right to a fair trial, rather than looking at the picture of the trial as a whole. That is what has to be done however and it is that picture as a whole which has led us to our conclusion on this issue.", "451. The various factors which would be likely to cause the retrial to breach Article 6 are to a considerable degree interlinked. Taking them in the round does not persuade us that there is a real risk of a total denial of the right to a fair trial.”", "47. Finally, while there was the real prospect of a long term of imprisonment, this did not alter SIAC’s conclusion that the overall nature of the retrial would not be a total denial of the applicant’s rights.", "2. Proceedings before the Court of Appeal", "48. The applicant appealed to the Court of Appeal, which gave judgment on 9 April 2008, unanimously allowing the appeal in respect of Article 6 and the risk of the use of evidence obtained contrary to Article 3 and dismissing it on all other grounds ([2008] EWCA Civ 290).", "49. For the applicant’s complaints under Article 3 as to the use of closed evidence by SIAC and the reliance on the assurances in the MOU, the Court of Appeal considered it was bound by its previous ruling on these questions in MT (Algeria), RB (Algeria), U (Algeria) v. the Secretary of State for the Home Department [2007] EWCA Civ 808, which had found that: (i) SIAC could consider closed evidence on safety on return; and (ii) the relevance of assurances to safety on return was a matter of fact not law and thus it had no jurisdiction to entertain an appeal on that ground. The Court of Appeal also rejected the applicant’s appeals based on Article 5, finding that SIAC was entitled to find as it did.", "50. For Article 6, the Court of Appeal rejected the applicant’s argument that there was a real risk of a “flagrant denial of justice” in his retrial in Jordan by reason of a lack of independence and or impartiality of the State Security Court: SIAC had been entitled to find as it did on this point and this conclusion was not altered by the later decision of this Court in Al ‑ Moayad v. Germany (dec.), no. 35865/03, 20 February 2007.", "51. However, the Court of Appeal accepted the applicant’s argument that there was a real risk that he would suffer a “flagrant denial of justice” by reason of the risk that statements obtained through treatment contrary to Article 3 would be admitted as evidence against him in his retrial. The Court of Appeal observed:", "“45. SIAC understated or misunderstood the fundamental nature in Convention law of the prohibition against the use of evidence obtained by torture. Counsel for the Secretary of State said that it was no part of his submission to say that if it is clear that a trial will take place on the basis of evidence obtained under torture, whether of the individual themselves, or third parties, that that would not involve flagrant denial of justice. Accordingly, once SIAC had found as a fact that there was a high probability that evidence that may very well have been obtained by torture (SIAC, § 436); or in respect of which there was a very real risk that it had been obtained by torture or other conduct breaching article 3 (SIAC, § 437); would be admitted at the trial of Mr Othman; then SIAC had to be satisfied that such evidence would be excluded or not acted on. The grounds relied on by SIAC for not finding a threatened breach of article 6 in that respect were insufficient.", "46. We emphasise that that is not or not primarily a criticism of SIAC’s reasoning in terms of rationality, though we do consider additionally that SIAC’s conclusions did not follow rationally from its findings of fact. Rather, our principal finding is that SIAC erred by applying an insufficiently demanding test to determine the issue of whether article 6 rights would be breached.", "...", "48. The use of evidence obtained by torture is prohibited in Convention law not just because that will make the trial unfair, but also and more particularly because of the connexion of the issue with article 3, a fundamental, unconditional and non-derogable prohibition that stands at the centre of the Convention protections. As the ECtHR put it in §105 of its judgment in Jalloh v Germany 44 EHRR 32:", "‘incriminating evidence-whether in the form of a confession or real evidence-obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture-should never be relied on as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art.3 of the Convention sought to proscribe or, as it was so well put in the US Supreme Court’s judgment in the Rochin case 342 US 165, “to afford brutality the cloak of law”.’", "That view, that the use of evidence obtained by torture or ill-treatment is prohibited not just, or indeed primarily, because of its likely unreliability, but rather because the state must stand firm against the conduct that has produced the evidence, is universally recognised both within and outside Convention law.", "What is, with respect, a particularly strong statement to that effect, citing a multitude of equally strongly worded authorities, is to be found in §17 of the speech of Lord Bingham in A v Home Secretary (No2) [2006] 2 AC 221.", "49. SIAC was wrong not to recognise this crucial difference between breaches of article 6 based on this ground and breaches of article 6 based simply on defects in the trial process or in the composition of the court. Rather, in its conclusions in §§ 442 ‑ 452 of its determination... it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court: see in particular SIAC at §§ 449-450. That caused it not to recognise the high degree of assurance that is required in relation to proceedings in a foreign state before a person may lawfully be deported to face a trial that may involve evidence obtained by torture.”", "52. The Court of Appeal noted that SIAC had reached its conclusion that there would not be a complete denial of justice in relation to the use of evidence obtained by torture by relying on the process, admittedly not wholly satisfactory, before the State Security Court and the Court of Cassation. For the Court of Appeal that conclusion sat very ill with SIAC’s own findings about the State Security Court process, in particular SIAC’s own concern as to the difficulties in proving that evidence had been obtained by torture. In the opinion of the Court of Appeal, SIAC’s concern was “amply justified by the litany of lack of the basic protections against prior ill-treatment” in Jordan. It also criticised SIAC’s “disturbing failure” to give proper weight to the findings as to the defects in the State Security Court. The Court of Appeal concluded:", "“It was not open to SIAC to conclude on that evidence that the risk of the total denial of justice that is represented by the use of evidence obtained by torture had been adequately excluded. SIAC could not have so concluded if it had properly understood the status in Convention law of this aspect of article 6.”", "3. Proceedings before the House of Lords", "53. The Secretary of State appealed to the House of Lords in relation to the Court of Appeal’s conclusion on Article 6. The applicant cross-appealed in relation to his other Convention complaints. The appeal was heard with the appeals of two of the appellants in MT (Algeria), RB and U (see paragraph 48 above). In the conjoined appeals the House of Lords was therefore able to consider the use of closed material before SIAC, the reliance on the assurances contained in the MOU and the applicant’s Articles 5 and 6 complaints. The House of Lords gave judgment on 18 February 2009 unanimously allowing the Government’s appeal and dismissing the applicant’s cross-appeal ([2009] UKHL 10).", "(a) Article 3: the “closed” proceedings before SIAC", "54. Lord Phillips held that SIAC was lawfully entitled to consider closed material in evaluating safety on return and there were cogent considerations of policy for doing so. A distinction had to be drawn between closed material on safety on return and the use of closed material in other proceedings, for example to establish the national security threat posed by an individual. For the former, the individual would normally be aware of the nature of any risk on return and, in any event, it was for the individual himself, and not the State, to make out his case on whether he would be at risk on return. It was not likely to be critically important for a special advocate to be able to obtain input from the person to be deported in relation to closed evidence. As regards the impracticality of obtaining an appropriate expert witness with security clearance to see the material, Lord Phillips did not regard the problem as unfair. SIAC’s rules of procedure enabled the special advocate to ask SIAC to call for more evidence and SIAC, as an expert tribunal, could be relied upon “to make a realistic appraisal of the closed material in the light of the special advocate’s submission”. In respect of the assurances, Lord Phillips endorsed the view that the assurances contained in the MOU had to be disclosed but details of the negotiations leading to the MOU could be closed material.", "55. Lord Hoffmann rejected the applicant’s argument on the more fundamental basis that he viewed this Court’s case-law as making it clear that the determination whether a deportation order might infringe Article 3 did not require “the full judicial panoply of article 6 or even 5(4)”. Citing Chahal, cited above, he emphasised that all that was required was “independent scrutiny of the claim”, which had occurred in the applicant’s case.", "56. Lord Hope agreed, albeit accepting that this Court had not yet had the opportunity to analyse whether the SIAC system met the requirements of the Convention. In his view, it did so. Lord Brown also agreed, emphasising that with regard to safety on return, no case was being made against the applicant; rather it was he who was making a case against the returning State.", "(b) Article 3: assurances and the MOU", "57. Lord Phillips (with whom the other Law Lords agreed) construed the this Court’s case-law from Mamatkulov and Askarov, cited above, onwards as treating assurances “as part of the matrix that had to be considered” when deciding whether there were substantial grounds for believing that the applicant would face treatment contrary to Article 3. He referred to the “abundance” of international law material, which supported the proposition that assurances should be treated with scepticism if they are given by a country where inhuman treatment by State agents was endemic. However, for Lord Phillips this came “close to a ‘Catch 22’ proposition that if you need to ask for assurances you cannot rely on them”. In rejecting that proposition, he held that the only basis to interfere with the view of SIAC was if its conclusions that the assurances could be relied upon were irrational and SIAC’s conclusions in the present case were not.", "(c) Article 5", "58. The House of Lords unanimously refused to interfere with the finding of fact by SIAC that the applicant’s exposure under Jordanian law to 50 days’ detention without access to a court or a lawyer, would not arise. Lord Phillips found that, even if it would arise, 50 days’ detention would not constitute a flagrant breach of Article 5. A flagrant breach was a breach whose consequences were so severe that they overrode the right of a State to expel an alien from its territory. That might be satisfied by arbitrary detention which lasted many years but not 50 days’ detention.", "(d) Article 6", "59. On Article 6, taking the test to be whether there would be a “complete denial or nullification” of the right to a fair trial, Lord Phillips observed:", "“136. This is neither an easy nor an adequate test of whether article 6 should bar the deportation of an alien. In the first place it is not easy to postulate what amounts to ‘a complete denial or nullification of the right to a fair trial’. That phrase cannot require that every aspect of the trial process should be unfair. ... What is required is that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the prospective trial.", "137. In the second place, the fact that the deportee may find himself subject in the receiving country to a legal process that is blatantly unfair cannot, of itself, justify placing an embargo on his deportation. The focus must be not simply on the unfairness of the trial process but on its potential consequences. An unfair trial is likely to lead to the violation of substantive human rights and the extent of that prospective violation must plainly be an important factor in deciding whether deportation is precluded.”", "60. Having reviewed, the relevant case-law of this Court, including Bader and Kanbor v. Sweden, no. 13284/04, § 42, ECHR 2005 ‑ XI, which he took to exemplify the need to consider the risk of a violation of Article 6 in combination with other Articles such as Articles 2 and 3, Lord Phillips found:", "“[T]he Strasbourg jurisprudence, tentative though it is, has led me to these conclusions. Before the deportation of an alien will be capable of violating article 6 there must be substantial grounds for believing that there is a real risk (i) that there will be a fundamental breach of the principles of a fair trial guaranteed by article 6 and (ii) that this failure will lead to a miscarriage of justice that itself constitutes a flagrant violation of the victim’s fundamental rights.”", "61. In the present case, the second limb was met by the potential sentences of imprisonment the applicant faced. For the first limb, Lord Phillips concluded that, although the military constitution of the Jordanian State Security Court would render the trial contrary to Article 6 if it were held in a Convention State, he agreed with SIAC and the Court of Appeal, that it could not amount to a “flagrant denial of justice” sufficient to prevent deportation in a removal case.", "62. In respect of the applicant’s complaint that there was a real risk that the evidence against him had been obtained by torture, Lord Phillips held that the Court of Appeal erred. It had required too high a degree of assurance that evidence that might have been obtained by torture would not be used in a foreign trial. He stated:", "“[T]he prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because ‘the state must stand firm against the conduct that produced the evidence’. That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan... The issue before SIAC was whether there were reasonable grounds for believing that if Mr Othman were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or, as SIAC put it, to amount to a total denial of the right to a fair trial. SIAC concluded that the deficiencies that SIAC had identified did not meet that exacting test. I do not find that in reaching this conclusion SIAC erred in law.”", "63. Lord Hoffmann found that there was no Convention authority for the rule that, in the context of the application of Article 6 to a removal case, the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice.", "64. Lord Hope agreed. He accepted that this Court had adopted an “uncompromising approach” to the use at trial of evidence obtained by torture but the evidence before SIAC did not come up to that standard. There were allegations but no proof. The assertion that there was a real risk that the evidence was obtained by torture was not enough to prohibit removal. He recalled SIAC’s findings that the retrial would probably not comply with Article 6 if Jordan were a party to the Convention but would take place within a legally constructed framework. There was sound evidence that the State Security Court, which was not a mere tool of the executive, appraised the evidence and tested it against the law. SIAC had therefore been entitled to find as it did on the evidence.", "65. Lord Brown agreed with Lord Phillips and, referring to the majority of the Grand Chamber in Mamatkulov and Askarov, cited above, stated: “if extradition was not unlawful even in the circumstances arising there, in my judgment expulsion most certainly is not unlawful here.”", "66. Lord Mance, who agreed with the other Law Lords on Article 6 and all other points of appeal, noted a considerable resemblance between the concept of “flagrant unfairness” in this Court’s case-law and the concept of denial of justice in public international law generally. For the latter, the modern consensus was that the factual circumstances had to be egregious for State responsibility to arise in international law.", "III. THE ARRANGEMENTS BETWEEN THE UNITED KINGDOM AND JORDAN", "A. The MOU", "76. The title of the MOU agreed between the United Kingdom Government and the Jordanian Government refers to the regulation of the “provision of undertakings in respect of specified persons prior to deportation”.", "77. The MOU states that it is understood that the authorities of each State will comply with their human rights obligations under international law regarding a person returned under the MOU. When someone has been accepted under the terms of the MOU, the conditions set out in paragraphs 1-8 of the MOU will apply, together with any further specific assurances provided by the receiving state. Paragraphs 1 to 5 provide as follows:", "“1. If arrested, detained or imprisoned following his return, a returned person will be afforded adequate accommodation, nourishment, and medical treatment and will be treated in a humane and proper manner, in accordance with internationally accepted standards.", "2. A returned person who is arrested or detained will be brought promptly before a judge or other officer authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided.", "3. A returned person who is arrested or detained will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him.", "4. If the returned person is arrested, detained or imprisoned within 3 years of the date of his return, he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities. Such visits will be permitted at least once a fortnight, and whether or not the returned person has been convicted, and will include the opportunity for private interviews with the returned person. The nominated body will give a report of its visits to the authorities of the sending state.", "5. Except where the returned person is arrested, detained or imprisoned, the receiving state will not impede, limit, restrict or otherwise prevent access by a returned person to the consular posts of the sending state during normal working hours. However, the receiving state is not obliged to facilitate such access by providing transport free of charge or at discounted rates.”", "78. Paragraph 6 guarantees the right to religious observance in detention and paragraph 7 provides for the right to a fair trial for a returned person in terms similar to Article 6 § 1 of the Convention. Paragraph 8 replicates Article 6 § 3, omitting references to paragraphs (a) and (e) of that Article.", "79. The MOU states that either Government may withdraw from the MOU by giving 6 months notice but it will continue to apply to anyone who has been returned.", "B. The terms of reference for the Adaleh Centre", "80. The terms of reference for the Adaleh Centre (the monitoring body) provide that it must be operationally and financially independent of the receiving State and must be able to produce frank and honest reports. The terms of reference also state that it must have capacity for the task, with experts (“Monitors”) trained in detecting physical and psychological signs of torture and ill-treatment and access to other independent experts as necessary. A Monitor should accompany every person returned under the MOU (“returned person”) throughout their journey from the sending State to the receiving State, and should go with them to their home or, if taken to another place, to that place. It should have contact details for a returned person and their next of kin and should be accessible to any returned person or next of kin who wishes to contact it. It should report to the sending State on any concerns raised about the person’s treatment or if the person disappears. For the first year after the person returns, a Monitor should contact him or her, either by telephone or in person, on a weekly basis.", "81. In respect of detention, the terms of reference provide as follows:", "“4. Visits to detainees", "(a) When the Monitoring Body becomes aware that a returned person has been taken into detention, a Monitor or Monitors should visit that person promptly.", "(b) Thereafter, Monitors should visit all detainees frequently and without notice (at least as frequently as the MOU permits; Monitors should consider requesting more frequent visits where appropriate, particularly in the early stages of detention.", "(c) Monitors should conduct interviews with detainees in private, with an interpreter if necessary.", "(d) Monitoring visits should be conducted by experts trained to detect physical and psychological signs of torture and ill-treatment. The visiting Monitor or Monitors should ascertain whether the detainee is being provided with adequate accommodation, nourishment, and medical treatment, and is being treated in a humane and proper manner, in accordance with internationally accepted standards.", "(e) When interviewing a detainee, a Monitor should both encourage frank discussion and observe the detainee’s condition.", "(f) Monitors should arrange for medical examinations to take place promptly at any time if they have any concerns over a detainee’s physical or mental welfare.", "(g) The Monitoring Body should obtain as much information as possible about the detainee’s circumstances of detention and treatment, including by inspection of detention facilities, and should arrange to be informed promptly if the detainee is moved from one place of detention to another.”", "82. Paragraph 5 provides that, in order to monitor compliance with the right to fair trial, Monitors should have access to all court hearings, subject to the requirements of national security. Paragraph 6 states that monitors should ensure that they are mindful of any specific assurances made by the receiving State in respect of any individual being returned, and should monitor compliance with these assurances. Paragraph 7, on reporting, provides that the Monitoring Body should provide regular frank reports to the sending State and should contact the sending State immediately if its observations warrant.", "C. Further evidence on the MOU and the Adaleh Centre", "1. Mr Layden’s statements", "83. In the context of proceedings before this Court, the Government produced two statements from Mr Anthony Layden, a former diplomat and currently United Kingdom Special Representative for Deportation with Assurances.", "84. The first statement, dated 24 September 2009, outlined the closeness of ties between the United Kingdom and Jordan, the United Kingdom’s support for various initiatives to enhance human rights in Jordan, as well as various reports (summarised at paragraphs 106–124 below), which showed Jordan’s improving human rights record.", "85. The first statement also explained that, after the signature of the MOU, the Governments together assessed which organisation should take on the independent monitoring. The Jordanian Government had proposed the National Centre for Human Rights (NCHR) and, when that body declined, the Jordanian Government suggested Adaleh, which was appointed. The monitoring agreement was signed after representatives from Adaleh met the United Kingdom Foreign Office Minister for the Middle East and North Africa. There was a subsequent meeting between the Secretary of State for the Home Department and the President of Adaleh’s Board of Trustees, Mr Arslan MP, and its founder and President, Mr Rababa. Mr Arslan and Mr Rababa made clear that, despite criticism of their decision to act as monitoring body, they had felt it was important for the protection of human rights. They had not been forced into the role or accepted it for financial benefit.", "86. The first statement also outlined Adaleh’s training and human rights awareness activities since it was founded in 2003. It had received funding from a large number of donor agencies but none from the Jordanian Government. It had spoken out against the Government and had prepared a study on combating torture in Jordan, which candidly criticised the Government and the GID. After boycotting their workshops for eighteen months, the GID had been participating in a series of workshops which had started in July 2009. In 2007, Adaleh had participated in four Human Rights Watch visits to the GID’s Amman detention facility. Mr Rababa had also responded in detail to Human Right Watch’s criticism of its ability to monitor the MOU (see paragraphs 91 and 146 below).", "87. Mr Layden also stated that the United Kingdom Government had provided grants and funding to Adaleh worth GBP 774,898, which had been directed towards the human rights training for officials and to established a group of experts. As of September 2009, the centre had ten full-time members of staff and twenty part-time medical and legal experts. The centre had expanded to include the National Team to Combat Torture (NTCT), which would act as Monitoring Body. The team had twenty-six members and three Adaleh Centre staff.", "88. Mr Layden’s second statement, dated 26 May 2010, reiterated that ties between Jordan and the United Kingdom remained close after the change of Government in the United Kingdom. The statement also provided an overview of recent reforms in Jordan, including changes to the criminal law to introduce more severe penalties for serious crimes such as torture and measures to increase press freedom. The statement also summarised Jordan’s submissions to the United Nations Committee Against Torture in the course of the Committee’ consideration of Jordan’s second periodic report (see paragraph 107 below).", "89. In the second statement, Mr Layden rejected any suggestion that there would be no incentive to reveal breaches of the MOU; failure to abide by its terms would be likely to do serious damage to diplomatic relations; action proportionate to any breach would certainly be taken by the United Kingdom Government. For the Adaleh Centre, he stated that there was nothing unusual in the fact that it had not carried out any monitoring in Jordan thus far; it operated on a project basis by developing proposals, seeking funding and implementing initiatives. Its NTCT had already visited Qafqafa prison on 9 May 2010. The Centre was not financially motivated; it had lost money by agreeing to act as the monitoring body. Nor was it a for ‑ profit organisation; it was required to return any surplus for projects to donors. Nothing turned on its change to a limited liability company.", "90. Mr Layden also indicated that clarification been sought from the Jordanian Government as to the apparent discrepancy between the English and Arabic versions of the MOU (the Arabic version stating that there would be the right to monitoring for three years after return; the English version stating that, if a returnee was detained within three years of return, he would have the right to monitoring). By the recent exchange of two Note Verbale between the United Kingdom Embassy in Jordan and the Jordanian Government (appended to the statement), the parties had indicated their understanding that: (i) if a returnee was detained within three years of return, the MOU provided for monitoring until such a time as he was released and, potentially, indefinitely; and (ii) a returnee who was detained more than three years after return, would not be entitled to monitoring visits.", "2. Mr Wilcke’s statement", "91. The applicant submitted a statement from Mr Christophe Wilcke, of Human Rights Watch, which had originally been prepared for the VV case (see paragraph 75 above). Mr Wilcke had conducted visits to various detention facilities in Jordan, which formed the basis for Human Rights Watch’s subsequent report of 8 October 2008 (see paragraph 117 below). Mr Wilcke stated that he was accompanied on one visit by Mr Rababa of the Adaleh Centre. According to Mr Wilcke when they discussed the present applicant’s case, Mr Rababa appeared to be hearing details of the United Kingdom deportation proceedings for the first time. In his statement, Mr Wilcke characterised Adaleh as very small and noted that it had not carried out any independent prison visits and had not tried to do so. Mr Wilcke therefore doubted that the assurances would provide an effective safeguard against ill-treatment of the applicant.", "3. Ms Refahi’s statement", "92. In a statement of 7 February 2010, prepared specifically for the proceedings before this Court Ms Refahi, the Arabic-speaking barrister who had given evidence before SIAC as to the previous trials in Jordan, set out the discussions she had had with Jordanian lawyers and NGO officers about Adaleh. They told her that Mr Rababa had strong family links to the Jordanian security services. The centre’s change to a for-profit company would have also required the approval of the Ministry of Interior and GID as would Mr Rababa’s nomination to the Board of Trustees of the NCHR. None of those interviewed had any knowledge of the centre before it became the Monitoring Body, it had no practical experience of monitoring and would be unable to prevent ill-treatment. The centre was also said to have behaved erratically in choosing experts for its anti-torture programmes; it had preferred lawyers over physicians and had not chosen individuals with monitoring experience.", "D. Further evidence on the applicant’s two previous trials and the procedures applicable to any re-trial", "93. The parties have also provided extensive evidence on the applicant’s original trials, including evidence which was not before SIAC.", "1. Evidence provided by the respondent Government", "94. The Government provided a report of 6 September 2009, which had been prepared by two Jordanian lawyers, Mr Al-Khalila and Mr Najdawi, the former Honorary Legal Adviser to the United Kingdom Ambassador to Jordan since 1975.", "95. The report outlined the structure of the Jordanian legal system and the various and wide powers of Public Prosecutors whom it characterised as judges with an inquisitorial role. It also outlined the functions of the GID and stated that cooperation between it and the State Security Court was very close. The Public Prosecutor before that court was a military officer whose office was located within GID premises. The report also noted that interrogations by GID officers had the goal of obtaining “confessions” from suspects appearing before the State Security Court (quotation marks in the original).", "96. The report stated that the rights of the accused had been enhanced by amendments made in 2001 to the Criminal Code, which it considered to be a “vital point” in its conclusion that the applicant would receive a fair trial. The amendments also meant there could be no flagrant denial of the applicant’s right to liberty because, among other reforms, the maximum period before which a detainee had to be brought before a court or public prosecutor had been reduced to twenty-four hours (Article 100(b) of the Code of Criminal Procedure (CCP). However, the report also noted that it was not possible to determine whether the Public Prosecutor would charge the applicant with new offences, which had been introduced by the Prevention of Terrorism Act 2006 and which would allow for the Public Prosecutor to detain him for fifteen days (renewable for up to two months) for the purposes of investigation.", "97. The report also sought to comment on a number of SIAC’s findings in respect of Jordanian law. For instance, SIAC had found that access to a lawyer being neither obligatory nor prohibited and that no lawyers were present during GID interrogations. However, there was an obligation for legal representation before a Public Prosecutor, which could be waived by reasoned decision, for example when there was a need for rapid action to prevent evidence being lost (Article 63(2) of the CCP). The presence of a lawyer was unusual in all questioning by Public Prosecutors. By the same token, although SIAC had made reference to the possibility of incommunicado detention, Article 66(2) of the CCP provided that, any time in which contact with a suspect was restricted, this did not apply to contact with his lawyer. SIAC had also found that, in any retrial, the case file from the first trial would be admitted as evidence and that witnesses would not be recalled for cross-examination; this was incorrect as Article 254 of the CCP only allowed a previous case-file to be used as background, the court could only consider evidence which was led at the trial and the defendant would be able to cross-examine witnesses.", "98. The report also commented on the State Security Court, which it said was composed of legal qualified military officers, who did not pursue military careers and were not serving officers. The law on the independence of the judiciary did not apply but nor did they enjoy judicial immunity from prosecution or civil proceedings. Sessions of the court were frequently closed to the public but the defendant would be represented.", "99. The report recognized that allegations of torture were difficult to verify because police and security officials frequently denied detainees timely access to lawyers. However, torture, though occasionally used by the police, was not institutionalized, and it remained an “individual action”; if detected, officers were subject to criminal sanctions. A measure of protection was provided to the accused in criminal proceedings by Article 63(3) of the CCP, which required an accused’s statement to be signed and fingerprinted by him. It also had to be verified by the Public Prosecutor and his clerk. If the accused refused to sign his reasons had to be recorded. Article 63(3) was a fundamental requirement, which, if not adhered to, invalidated the statement. A signature and, if the accused was illiterate, a fingerprint, were necessary to show that the statement was that of the accused. Contrary to Ms Refahi’s evidence to SIAC (see paragraph 104 below), there was no evidence that fingerprinting was a clear sign of a false confession.", "100. For confessions to the Public Prosecutor, the burden of proof was on the defendant to show that it was not legal; the burden was reversed for confessions to the police. There was a corroboration requirement when the evidence of a co-accused was used against another co-accused. The report also analysed a series of Court of Cassation judgments where it had quashed State Security Court judgments because of improperly obtained confessions. It had also laid down rules as to when confessions would and would not be admitted; where someone had been detained for longer than the prescribed time limit, there was a rebuttable presumption that the confession was improperly obtained.", "101. The report went on to examine the judgments that had been given in the applicant’s previous trials. For the Reform and Challenge case, the report noted that, in rejecting some of the defendant’s claims to have been tortured into giving confessions, the State Security Court had relied on the evidence of the coroner, who had stated that he found no injuries on the men. In the millennium conspiracy trial the State Security Court had found no evidence whatsoever to support claims of false confessions made by some of the defendants and, as the defendants’ lawyers had not referred them to the coroner for examination, there was no medical evidence to support their claims. The State Security Court had, however, heard from officers who were present when the confessions were given and who testified that there were no beatings of any sort. The State Security Court in its judgments had relied on the confessions (including reconstructions at the crime scene) and expert evidence. The evidence of the other defendants was likely to be determinative at the applicant’s retrial, as they were important in his trials in absentia. The report also stated that, if alive, Al-Hamasher and Abu Hawsher would give evidence at any retrial.", "2. Evidence provided by the applicant", "102. For the Reform and Challenge trial, the applicant provided a copy of the Public Prosecutor’s investigation report, which showed that the only evidence against him was the confession of Al-Hamasher. The confession was quoted in the report as stating that the applicant had provided encouragement for the attacks and congratulated the group afterwards. The only other evidence against him which was recorded in the report was that two books the applicant had written were found in the possession of Al ‑ Hamasher and another defendant. The applicant also provided the grounds of appeal of Al-Hamasher which set out his claim that he had been detained and ill-treated for six days in GID custody then brought before the Public Prosecutor in the latter’s office at the GID building. The applicant also produced a letter from the GID to Al-Hamasher’s lawyer which stated that the original videotapes of his interrogation had been destroyed. The grounds of appeal stated that, at trial, a GID officer gave evidence that he had destroyed the tapes on the orders of his superior but refused to reveal the superior’s identity. Al-Hamasher’s grounds of appeal also stated that lawyers for another defendant had witnessed their client telling the Public Prosecutor that he had been ill-treated: the lawyers’ evidence had not been accepted by the State Security Court, which preferred that of the Public Prosecutor. The grounds of appeal also summarised a medical report by a doctor who had examined the defendants five months after their interrogations. The doctor had found bruising and scarring on the men’s bodies, particularly their feet and legs. Given the passage of time, the doctor was unable to conclude how the men’s injuries had been obtained but observed that they could have been caused by the impact of hard objects. In Al-Hamasher’s case, the doctor noted scars on his buttocks, which were consistent with being deliberately hit with a baton or similar object. The grounds of appeal also noted that family members of the defendants, including Al-Hamasher’s mother, had observed scars on the defendants’ feet and legs when they were first allowed to visit them. The GID interrogators were not produced for cross-examination at trial, nor were the defendants’ medical records.", "103. For the millennium conspiracy trial, the applicant submitted a copy of the Public Prosecutor’s investigation report in that case, which showed that Abu Hawsher’s confession was the predominant basis of the prosecution case against the applicant. A copy of his defence statement setting out his allegations of torture was also provided, which described injuries to the soles of his feet (causing the skin to fall off when he bathed), facial injuries, bruising and scarring. He maintained that his injuries were witnessed by his brother-in-law, his cellmates and a representative from the International Committee of the Red Cross. He also described how his statement had been changed many times until the officials in charge where satisfied with it. Afterwards, when he had been brought before the Prosecutor and alleged he had been tortured, the Public Prosecutor refused to listen. Letters were also provided which had been written by Abu Hawsher’s lawyer to the applicant’s representative, Ms Peirce, which summarised the steps the defence teams had taken to bring the torture allegations made by various defendants to the attention of the State Security Court, including the protests made by the United States Embassy concerning the ill-treatment of one defendant, Mr Ra’ed Hijazi, a US ‑ Jordanian national (see also Amnesty’s report at paragraph 114 below). The letter also stated that the defendants’ families had testified as to the injuries they had seen.", "104. The applicant also provided two statements on the trials by Ms Refahi: that which had been before SIAC and her further statement of 7 February 2010. The first statement, of 5 May 2006, set out the results of her interviews with defence lawyers and released defendants in each trial as to the manner in which the defendants had been tortured and given completed confession statements to sign. The torture was said to have include beatings with belts and whips, sleep deprivation and the administration of drugs to weaken resistance. She was told that, for false confessions, in was the practice to have the detainee sign and fingerprint the statement to prevent him retracting it later. Ms Refahi had inspected the case file in each case: Abu Hawsher’s confession was fingerprinted.", "105. The statement of 7 February 2010, summarised the results of a further visit she had made to Jordan in September 2009, where she had carried out further interviews with defendants and their lawyers. ‘Defendant A’ in the Reform and Challenge trial said he had been tortured for ten days (including through beatings on the soles of his feet) and questioned under torture on two or three occasions. While being moved he had heard a voice he recognised as belonging to another defendant; it was clear this defendant was also being tortured. On the tenth day he signed a confession drafted by the GID. On the eleventh day he was brought before the Public Prosecutor, who had the GID confession before him. He then signed an identical confession which had been drafted by the Public Prosecutor. There was no more torture after this but, on subsequent occasions when he appeared before the Public Prosecutor, the Prosecutor threatened him with further torture. He had told the State Security Court that he had been tortured but the court did not investigate. He was not medically examined until he had been detained for five months.", "IV. HUMAN RIGHTS IN JORDAN", "A. United Nations reports", "1. The Human Rights Council", "106. The United Nations Human Rights Council the Working Group on Jordan’s Universal Periodic Review delivered its report on 3 March 2009 (A/HRC/11/29). The report noted Jordan’s acceptance of certain recommendations geared towards eradicating torture. Following the report, Human Rights Watch welcomed Jordan’s satisfaction at the “constant review” of its human rights standards but found Jordan’s rejection of some important recommendations geared towards eradicating torture to be “deeply disappointing”. The organisation called on Jordan to implement quickly recommendations to set up independent complaints mechanisms, allow unannounced prison visits and abolish the Police Courts, which were composed of police officers who heard allegations of torture against fellow officers. Similar recommendations were made by the United Kingdom Government in their statement to the Human Rights Council.", "2. The Committee Against Torture", "107. The United Nations Committee Against Torture, in its concluding observations on Jordan of 25 May 2010, welcomed Jordan’s ongoing reform efforts, which included the establishment of the National Centre for Human Rights, an independent Ombudsman to receive complaints and a comprehensive plan for the modernisation of detention facilities. However, it was also deeply concerned by the “numerous, consistent and credible allegations of a widespread and routine practice of torture and ill-treatment of detainees in detention facilities, including facilities under the control of the General Intelligence Directorate”. It also found a “climate of impunity” and an absence of proper criminal prosecutions for perpetrators. The Committee also expressed its concern at the limited number of investigations into allegations of torture and its serious concern at the lack of fundamental legal safeguards for detainees and the overuse of administrative detention, which placed detainees beyond judicial control. The Committee also recommended that the GID be placed under civilian authority, given that it continued to detain suspects arbitrarily and incommunicado and to deprive detainees of access to judges, lawyers or doctors. The Committee was also gravely concerned by the special court system in Jordan, which included the State Security Court, where military and security personnel alleged to be responsible for human rights violations were reportedly shielded from legal accountability and where procedures were not always consistent with fair trial standards. Finally, in respect of Article 15 of the Convention against Torture, the Committee found:", "“While noting the existence of article 159 of the Criminal Procedure Code [the exclusion of evidence obtained under duress] which does not refer explicitly to torture, the Committee expressed its concern at reports that the use of forced confessions as evidence in courts is widespread in the State party.", "...", "The State party should take the necessary steps to ensure inadmissibility in court of confessions obtained as a result of torture in all cases in line with the provisions of article 15 of the Convention. The Committee requests the State party to firmly prohibit admissibility of evidence obtained as a result of torture in any proceedings, and provide information on whether any officials have been prosecuted and punished for extracting such confessions.”", "3. The Human Rights Committee", "108. The United Nations Human Rights Committee’s concluding observations of 18 November 2010 also praised Jordan’s reforms, including the incorporation into domestic law of the ICCPR. However, the Human Rights Committee’s concerns included: the high number of reported cases of torture and ill-treatment in detention centres, particularly in GID facilities; the absence of a genuinely independent complaints mechanism to deal with cases of alleged torture or ill-treatment by public officials, as well as the low number of prosecutions of such cases; the denial of prompt access to a lawyer and independent medical examinations to detainees; and the fact that NGOs had been denied access to detention facilities. Accordingly, the Committee recommended the establishment of an effective and independent mechanism to deal with allegations of torture; proper investigations and prosecutions; immediate access for detainees to a lawyer of their choice and an independent medical examination; and the creation of a system of independent visits to all places of deprivation of liberty.", "The Committee also expressed its concern at the limited organisational and functional independence of the State Security Court and recommended its abolition.", "4. The Special Rapporteur", "109. In his report of 5 January 2007 to the Human Rights Council, the UN Special Rapporteur on Torture, Manfred Nowak, noted inter alia that the GID had refused to allow him private visits with detainees and concluded that:", "“Many consistent and credible allegations of torture and ill-treatment were brought to the attention of the Special Rapporteur. In particular, it was alleged that torture was practised by General Intelligence Directorate (GID) to extract confessions and obtain intelligence in pursuit of counter-terrorism and national security objectives, and within the Criminal Investigations Department (CID), to extract confessions in the course of routine criminal investigations. Given that these two facilities were the ones most often cited as the two most notorious torture centres in Jordan, on the basis of all the evidence gathered, the denial of the possibility of assessing these allegations by means of private interviews with detainees in GID, and taking into account the deliberate attempts by the officials to obstruct his work, the Special Rapporteur confirms that the practice of torture is routine in GID and CID... Moreover, in practice the provisions and safeguards laid out in Jordanian law to combat torture and ill-treatment are meaningless because the security services are effectively shielded from independent criminal prosecution and judicial scrutiny as abuses by officials of those services are dealt with by special police courts, intelligence courts and military courts, which lack guarantees of independence and impartiality.”", "110. In this context, the Rapporteur also found :", "“57. The Special Rapporteur reports that no ex officio investigations are undertaken even in the face of serious injuries sustained by a criminal suspect; not one official could demonstrate to the Special Rapporteur serious steps taken to investigate allegations, including at the very least the prompt and timely medical documentation of injuries sustained by detainees...", "60. Paradoxically, while law enforcement officials maintain that torture allegations are unheard of within their institutions, the Court of Cassation has overturned a number of convictions on the grounds that security officials had obtained confessions from defendants under torture. Regrettably even these findings do not spur any official investigations into wrongdoings by officials and none of the security officials involved in these cases have ever been brought to justice.", "61. What is more, the decisions and rulings of the Court of Cassation related to cases where criminal suspects are prosecuted under special courts are at the same time cited by government officials to defend the system, pointing to the existence of independent oversight in the form of appeals of special court decisions to the Court.", "62. However, with respect to the question of impunity and the prosecution by special courts of police or intelligence officers for torture or ill-treatment, no evidence has been produced to indicate examples of where special court acquittals of police officers have been successfully appealed to the Court of Cassation, if appealed at all.", "63. This leads to the conclusion that impunity is total. The special court system does not work effectively at all. The absence of a crime of torture in accordance with article 1 of the Convention against Torture is only part of the problem. At the heart of it lies a system where the presumption of innocence is illusory, primacy is placed on obtaining confessions, public officials essentially demonstrate no sense of duty, and assume no responsibility to investigate human rights violations against suspected criminals, and the system of internal special courts serves only to shield security officials from justice. (footnotes omitted)”", "111. The Rapporteur recommended the introduction of a series of basic safeguards for detainees, including better rules governing the admissibility of confessions. He also recommended the abolition of the State Security Court.", "B. Other reports", "1. Amnesty International", "112. Amnesty International has produced a number of reports on the treatment of detainees in Jordan. Its most extensive report was published in July 2006, Amnesty International published its report entitled “Jordan: ‘Your confessions are ready for you to sign’: detention and torture of political suspects”. The report criticised Jordan for maintaining a system of incommunicado detention which facilitated torture, particularly under the auspices of the GID, where torture was systemic and practised with impunity. The scope for abuse by the GID was far greater because GID officers were granted the authority of public prosecutors (and thus judicial power), allowing the GID itself to prolong periods of detention for the purposes of interrogation. It was a virtually impossible task for a detainee to prove he had been tortured by the GID when it was the detainee’s word against that of GID officers. The report considered that the introduction of monitoring by the NCHR and the ICRC were positive if qualified steps and both organisations had been prevented from meeting all detainees in GID custody.", "113. Although the 2001 amendments to Article 66 of the Code of Criminal Procedure had allowed detainees access to their lawyers, even when in incommunicado detention, in apparent contravention of these provisions, the general practice in state security cases was for detainees to be held in prolonged pre-trial incommunicado detention. There were also apparent contraventions of the right to have a lawyer present during examinations before the Public Prosecutor. The State Security Court had been “largely supine” in the face of torture allegations, failing properly to investigate allegations. Trials before it were frequently unfair; it was prone to convict defendants on the basis of confessions alleged to be extracted by torture. The report noted that, over the previous ten years, one hundred defendants had alleged before the State Security Court that they had been tortured into making confessions; allegations had been made in fourteen such cases in 2005, yet the State Security Court had failed adequately to investigate the claims. Appeal to the Court of Cassation had not been an adequate safeguard.", "114. The report described nine case studies of confessions extracted by torture by the GID in state security cases, including that of the millennium conspiracy trial. The report recorded that at least four of the defendants, including Abu Hawsher, had been tortured during GID interrogation, their bodies reportedly showing marks of torture when relatives and lawyers saw them for the first time. Witnesses testified that, in the course of a reconstruction at the crimes scenes, they had seen one defendant, Mr Sa’ed Hijazi, propped up by two guards apparently unable to stand on his own. In the case of another, Mr Ra’ed Hijazi, (a US-Jordanian national) a doctor had testified that he had contracted severe pneumonia whilst held in incommunicado detention. The United States consul, who was said to have seen marks of torture on him, could not give evidence at trial for reasons of diplomatic immunity.", "115. The report also concluded that the MOU between the UK and Jordan was inappropriate given Jordan’s failure to observe the absolute prohibition on torture and, moreover, post-monitoring return could not replace the requirements of international law that there be systemic legislative, judicial and administrative safeguards to prevent torture. Monitoring, even by professional organisations, was insufficient to prevent it.", "2. Human Rights Watch", "116 In its report “Suspicious Sweeps: the General Intelligence Department and Jordan’s Rule of Law Problem” of 18 September 2006 the organisation documented cases of ill-treatment by the GID. The report also contained the following section on prosecutors before the State Security Court :", "“The SSC is a special court established pursuant to Articles 99 and 100 of Jordan’s constitution.", "...", "The head of the Joint Chiefs of Staff appoints a military officer to serve as prosecutor, underlining the court’s subordinate character. The SSC prosecutor’s offices are physically located inside the central GID complex. The SCC [sic] prosecutor is the officer who issues charges against detainees and authorizes their continued detention. The SSC prosecutor who investigates the crimes of which detainees at the GID are accused is a military officer, ultimately under the same administrative authority as the intelligence officials. This reflects a fundamental lack of independence and impartiality.", "...", "Article 7 of the SSC law provides that people who are being investigated with a view to prosecuting them for a crime for which the SCC enjoys jurisdiction can be detained ‘where necessary for a period not exceeding seven days’ before being brought before the prosecutor to be charged. The prosecutor can extend the detention warrant for renewable periods of fifteen days after charging a suspect, if it is ‘in the interest of the investigation.’ A practicing defense lawyer told Human Rights Watch that ‘it is normal for detainees to remain at the GID for around six months. They are transferred to a normal prison or released when the GID has finished its investigation.’", "Under Jordanian law, although the prosecutor is formally in charge of an investigation once charges are filed, in matters before the SCC the practice is for the prosecutor to delegate responsibility to GID officers to continue the investigation, including interrogation. All the detainees interviewed by Human Rights Watch recalled that during their time in detention they met only with GID staff, except for when they were brought before the prosecutor to be charged. However, several detainees made clear that they were unable with certainty to distinguish between GID officers and officers from the prosecutor’s office, since all wear civilian clothes, conduct interrogations in a similar fashion, and are located in close proximity.", "The prosecutor is also the legal authority for detainees’ complaints regarding cruel or inhuman treatment or torture. Jordanian law requires any official, including GID officers, to accept and transmit complaints to their superiors. The role of the prosecutor includes investigating complaints that allege a breach of the law. The fundamental lack of independence of the prosecutor within the GID and SCC structures renders this role wholly ineffective. Samih Khrais, a lawyer who has defended tens of clients before the State Security Court, told Human Rights Watch: ‘The prosecutor will send a detainee back to the cell if he says he confessed under torture.’ Khrais said that because of the prosecutor’s role in the process before the SCC, and the rules that make statements obtained under torture inadmissible in court, the SCC prosecutors are disinclined to act on any complaints of torture. One detainee, Mustafa R., who said he was tortured both before and after being charged, told Human Rights Watch that when he was brought before the prosecutor to be charged he was alone with the prosecutor in his office in the GID complex while a car with his interrogators waited outside to take him back to his cell. The prosecutor did not make any inquiry as to whether illegal force or coercion were used against Mustafa R. during his interrogation. Another former detainee, Muhammad al-Barqawi, told Human Rights Watch that if a detainee demands a lawyer or alleges torture, the prosecutor sends the detainee back for more interrogation, saying ‘He’s not ready yet.’”", "117. In its report of 8 October 2008, “Torture and Impunity in Jordan’s Prisons”, which was based on prisons visits it had carried out in 2007 and 2008, Human Rights Watch concluded that torture remained widespread and routine in Jordan’s prisons. The organisation received allegations of ill ‑ treatment from 66 of the 110 prisoners it interviewed. It also concluded that prison guards tortured inmates because prosecutors and judges did little to pursue them. The report noted that willingness of the Jordanian Government to grant access to prisons was commendable and reflected a positive commitment to reform. However, the report also noted that the public concern of Jordanian leadership had not shown lasting effects on the ground. Torture was inflicted routinely when prisoners broke prison rules, made requests for doctors, telephone calls or visits, or make complaints. Islamist prisoners faced greater abuse than others. Complaints of torture had decreased but remained a common occurrence. Torture was not a general policy, although high-ranking prison officials had ordered beatings. Torture was a “tolerated practice” because mechanisms for individual accountability were lacking; the Government had quietly taken some initial steps to provide greater opportunities for redress, but had not vigorously pursued them.", "118. In the section of its World Report of 2010 on Jordan, Human Rights Watch also commented that further positive reforms such as the NCHR anti ‑ torture training programmes, were far from sufficient considering Jordan’s lack of political will and effective mechanisms to bring perpetrators to justice.", "3. The Jordanian National Centre for Human Rights", "119. In its 2005 Annual Report, the NCHR recognised that although, Jordanian law was clear as to the illegality of a conviction based on a confession which had been obtained by coercion, it was difficult for defendants to prove that confessions had been so obtained, especially given the lack of witnesses and long periods of detention which meant that forensic physicians could not detect abuse.", "120. In its 2007 Report the NCHR noted that information on criminal trials revealed “a clear shortcoming - in many cases - in commitment to the basic criteria of a just trial”. It referred in particular to the trying of civilians before the State Security Court whose judges were “militarily incline[d]”, which undermined the principle of judicial independence and reduced the guarantees of a fair trial.", "121. In its 2008 Report the NCHR noted the continuing difficulties in detecting torture, including the prolonged period of detention for which detainees were held and the fact that those responsible for coercion of defendants did not write out their statements, meaning the statements became legally conclusive evidence. The NCHR also noted that, for part of the year, it had been banned from visiting prisons. There had, however, been a number of positive anti-torture measures introduced by the Government.", "122. In its 2009 Report, the NCHR noted that anti-torture efforts were still “mediocre and hesitant”. Problems included the Crime Prevention Law, which allowed incommunicado detention without judicial monitoring; the State Security Act, which allowed detention for seven days before referral to a judge; and that a statement made by a suspect without the presence of the Public Prosecutor was admissible if it was “submitted to the public prosecution along with a piece of evidence for the circumstances under which it has been made, and that the suspect has made that statement voluntarily.”", "4. United States Department of State", "123. The United States Department of State 2009 Human Rights Report on Jordan recorded local and international NGOs’ concerns that torture remained widespread, although they had also noted a decrease in the number of complaints made. The NGOs has also found that complaints mechanisms had improved but additional reforms were required. The report also stated:", "“Unlike in prior years, there were no new public claims of torture by defendants before the State Security Court. On April 15, three of five men who claimed to have been tortured from 2007 to May 2008 received five-year sentences. The other two men were acquitted due to lack of evidence. The government found their torture claims baseless, as they also found the January 2008 torture claims of two men accused of exporting weapons to the West Bank whose criminal cases were ongoing at year’s end.", "On May 14, the State Security Court sentenced Nidal Momani, Tharwat Draz, and Sattam Zawahra to death for plotting to kill a foreign leader while visiting the country in 2006, but it immediately commuted their sentences to 15 years’ imprisonment. In 2007 and 2008, the defendants claimed they had been beaten and psychologically pressured to confess.”", "124. The 2010 Report recorded that Jordanian law prohibited torture; however, international NGOs continued to report incidences of torture and widespread mistreatment in police and security detention centres. In respect of arrest and trial procedures, the Report noted that:", "“The State Security Court gives judicial police, charged with conducting criminal investigations, authority to arrest and keep persons in custody for 10 days. This authority includes arrests for alleged misdemeanors. In cases purportedly involving state security, the security forces arrested and detained citizens without warrants or judicial review, held defendants in lengthy pretrial detention without informing them of the charges against them, and did not allow defendants to meet with their lawyers or permitted meetings only shortly before trial. Defendants before the State Security Court usually met with their attorneys at the start of a trial or only one or two days before. A case may be postponed for more than 48 hours only under exceptional circumstances determined by the court. In practice, cases routinely involved postponements of more than 10 days between sessions with proceedings lasting for several months. In most cases the accused remained in detention without bail during the proceedings. Several inmates were in detention without charge at year’s end.”", "The Report also commented that Jordanian law provided for an independent judiciary; however, the judiciary’s independence in practice was compromised by allegations of nepotism and the influence of special interests." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. SIAC’s procedures", "67. As stated in A. and Others v. the United Kingdom, cited above, § 91, SIAC was set up in response to this Court’s judgment in Chahal, cited above.", "68. Under section 2(1) of the Special Immigration Appeals Commission Act 1997, appeal to SIAC lies in respect of immigration decisions, including decisions to deport, when the Secretary of State’s decision is taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of State’s opinion should not be made public in the interests of national security, the interests of the relationship between the United Kingdom and any other country, or otherwise in the public interest.", "69. As was also stated in A. and Others, § 92, SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also other material which cannot (“closed material”). Neither the appellant nor his legal advisor can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the Solicitor General to act on behalf of the appellant.", "Rule 4 of Special Immigration Appeals Commission (Procedure) Rules 2003 (“the 2003 Rules”) governs the use of closed material and states:", "“(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.", "(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).", "(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”", "Rule 37(3)(c) directs that when serving closed material upon the special advocate, the Secretary of State must also serve a statement of the material in a form which can be served on the appellant, if and to the extent that it is possible to do so without disclosing information contrary to the public interest.", "70. Rule 38 provides that a special advocate may challenge the Secretary of State’s objections to disclosure of the closed material. SIAC may uphold or overrule the Secretary of State’s objection. If it overrules the objection, it may direct the Secretary of State to serve on the appellant all or part of the closed material which he has filed with the SIAC but not served on the appellant. In that event, the Secretary of State shall not be required to serve the material if he chooses not to rely upon it in the proceedings.", "71. A search is carried out for “exculpatory material”, that is, material that will advance the case of an appellant or detract from the case of the Secretary of State. Exculpatory material is disclosed to the appellant save where this would not be in the public interest. In that event it is disclosed to the special advocate.", "72. Section 7 of the 1997 Act confers a right of appeal to the Court of Appeal against a final determination of an appeal made by SIAC in England and Wales “on any question of law material to that determination”.", "B. SIAC’s case law on assurances", "73. In addition to Jordan, the Government have negotiated memoranda of understanding on assurances with Ethiopia, Lebanon and Libya. They have negotiated a framework agreement for obtaining assurances from Algeria. SIAC has heard appeals from seventeen individuals whom the Government sought to deport on the basis of these assurances. SIAC has considered these appeals on a case-by-case basis but the general approach it has taken to assurances was set out in BB. v. the Secretary of State for the Home Department, SIAC determination of 5 December 2006, § 5, where it found that, before assurances could remove a real risk of ill-treatment, four conditions had to be satisfied:", "(i) the terms of the assurances had be such that, if fulfilled, the person returned would not be subjected to treatment contrary to Article 3;", "(ii) the assurances had been given in good faith;", "(iii) there had to be a sound objective basis for believing that the assurances would be fulfilled; and", "(iv) fulfilment of the assurances had to be capable of being verified.", "74. Applying that test, SIAC has found assurances to be sufficient for Algeria (see SIAC’s determinations in G (8 February 2007); Z and W (14 May 2007) Y, BB and U (2 November 2007); PP (23 November 2007); B (30 July 2008); T (22 March 2010); Sihali (no. 2) (26 March 2010)). It also found them to be sufficient in respect of Ethiopia in the case of XX (10 September 2010). SIAC found assurances to be insufficient in respect of Libya, given the changeable nature of the then Gaddafi regime ( DD and AS (27 April 2007)).", "75. Jordan’s assurances were also found to be compatible with Article 3 in VV (2 November 2007). SIAC took note of further reports on torture in Jordanian prisons and considered that those reports confirmed its view that, without the MOU, there was a real risk of ill-treatment. However, those reports did not alter its conclusions in the present case that the MOU and Adaleh’s monitoring role provided sufficient protection.", "V. RELEVANT COMPARATIVE AND INTERNATIONAL LAW ON TORTURE AND THE USE OF EVIDENCE OBTAINED BY TORTURE", "A. The United Nations Torture Convention", "1. Relevant provisions of the Convention", "125. One hundred and forty-nine States are parties to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as:", "“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”", "126. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law.", "127. Article 3 provides:", "“1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.", "2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”", "128. Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.", "129. Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.", "2. Case law and reports relating to Article 15 of UNCAT", "a. The United Nations Committee Against Torture", "130. In P.E. v. France (no. 193/2001), decision of 21 November 2002, the Committee considered the case of a German national who had been extradited from France to Spain. The complainant alleged the Spanish extradition request had been based on statements by a third person obtained by torture. While rejecting the complaint as unsubstantiated, the Committee considered that the provisions of Article 15 applied to the extradition proceedings in France and that France had the obligation to ascertain the veracity of the allegations made. The “broad scope” of Article 15 and its applicability to extradition proceedings was confirmed by the Committee in G.K. v. Switzerland (no. 219/2002), decision of 7 May 2003, which also concerned an extradition to Spain where the basis of the extradition request were statements by a third party allegedly obtained by torture. Criminal proceedings initiated by the third party against his alleged torturers were discontinued by the Spanish authorities and the complaint was therefore dismissed by the Committee as unsubstantiated; consequently, there had been no violation of Article 15 by Switzerland in extraditing the complainant.", "131. It its concluding observations on Russia of 6 February 2007 (CAT/C/RUS/CO/4), the Committee was concerned that, while the Russian Code of Criminal Procedure stated that evidence obtained by torture was inadmissible, in practice there appeared to be no instruction to the courts to rule that the evidence was inadmissible, or to order an immediate, impartial and effective investigation. The Committee recommended the adoption of clear legal provisions prescribing the measures to be taken by courts should evidence appear to have been obtained through torture or ill-treatment, in order to ensure in practice the absolute respect for the principle of inadmissibility of evidence obtained through torture.", "Concerns were also expressed by the Committee in its concluding observations on the United States of America (25 July 2006, CAT/C/USA/CO/2), in relation to the application of Article 15 to military commissions and the bodies which would review the cases of those detained at Guantánamo Bay, Cuba. It recommended that the United State establish an independent mechanism to guarantee the rights of all detainees in its custody.", "In its Report on Mexico (26 May 2003, CAT/C/75) the Committee considered that Article 20 of the Mexican Constitution (which provided that a confession not made before the Public Prosecutor or a judge or made without the presence of defence counsel had no evidential value) was not sufficient in practice to prevent torture. Detainees were afraid to tell the Public Prosecutor they had been tortured; there was insufficient access to legal advice; there the police and Public Prosecutor’s office worked closely together and detainees were shuttled repeatedly between each service for the purposes of interrogation and then forced confessions; prosecutor’s did not conduct investigations into torture allegations and, if they did, still made use of the confession; medical experts were not sufficiently independent from the prosecutor. It was “extraordinarily difficult’ to have forced confessions excluded: courts had no independent means of ascertaining whether confessions were made voluntarily (paragraphs 155, 196-202, 219 and 220 of the Report).", "b. France", "132. Article 15 was relied on by the cour d’appel de Pau in its decision to refuse an extradition request by Spain in Irastorza Dorronsoro, case no. 238/2003, 16 May 2003. It had been accepted by the Spanish authorities that statements by a third party, Ms Sorzabal Diaz, whilst in detention were the only evidence against Mr Irastorza Dorronsoro. The court found there were serious grounds for believing that Ms Sorzabal Diaz had been physically abused during her detention and further inquiries of the Spanish authorities had failed to dispel those concerns. It could not been excluded, therefore, that her statements had been obtained contrary to Article 15 and, as such, the extradition request was refused.", "c. Germany", "133. Article 15 was also relied on by the Düsseldorf Court of Appeal ( Oberlandesgericht ) in its decision of 27 May 2003 refusing extradition of a terrorist suspect to Turkey. The court recognised that Turkey had ratified UNCAT and incorporated its provisions into domestic law. However, there was a real risk ( konkrete Gefahr ) of those provisions not being respected in the event of the requested person’s extradition. On the evidence before it, the court found reasonable evidence ( begründete Anhaltspunkte ) to presume that statements given to the Istanbul police by 32 co-defendants in autumn 1998 – containing full confessions – were made under the influence of acts of torture by the Turkish security forces. The allegations of torture were supported by medical evidence (albeit records that were unclear in places) and matched information available from general reports on methods of torture commonly applied – not always with physically verifiable effects – in police custody in Turkey. There was, moreover, a risk, substantiated by concrete evidence ( durch konkrete Indizien belegte Gefahr ), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey. The Court of Appeal accepted that, in their judgments, Turkish courts were required to have regard to the domestic and international legal provisions against the admission of torture evidence, as well as case-law of the Turkish Court of Cassation to the effect that uncorroborated confessions were inadmissible. However, human rights reports had repeatedly noted that inadequate investigation by the Turkish criminal justice system of allegations of torture meant that courts continued to use confessions obtained by police ill-treatment. There were grounds to fear that the Istanbul National Security Court would do so in the instant case, not least that it would be impossible to prove the charges against the requested person without relying on the autumn 1998 statements taken by the police.", "134. The Düsseldorf Court of Appeal’s judgment was relied upon by the Cologne Administrative Court ( Verwaltungsgericht ) in its judgment of 28 August 2003 in a related extradition case. The Cologne court found that the Court of Appeal’s conclusions were not altered by further assurances given by the Turkish authorities; those assurances were not specific but rather relied only on the general applicable provisions of Turkish law on torture evidence.", "135. In re El Motassadeq, before the Hamburg Court of Appeal Criminal Division ( Oberlandesgericht ), the defendant was charged with conspiracy to cause the attacks of 11 September 2011. The court was provided with summaries of statements of three witnesses who had been held and questioned in US custody. Requests as the nature to the United States authorities’ questioning had been met with no response. The court based its assessment as to whether torture had been used on available, publicly accessible sources. The court found that, on the whole, it had not been proved that the witnesses had been tortured, inter alia because the content of the statements was not one-sided. This meant the court decided not to consider Article 15 of UNCAT, which, it observed, would have justified a prohibition on using the evidence (see the summary of the judgment in A and others (no. 2), §§ 60, 122 and 123, 140 and 141). The defendant’s subsequent application to this Court was declared inadmissible as manifestly ill-founded: El Motassadeq v. Germany (dec.) no. 28599/07, 4 May 2010.", "C. The United Kingdom", "1. A and others (no. 2)", "136. In A and others (no. 2) v Secretary of State for the Home Department [2005] UKHL 41 the House of Lords considered whether SIAC could lawfully admit evidence which had or may have been obtained by torture in another State without the complicity of British officials. On the basis of the common law, the case-law of this Court, and public international law, including UNCAT, their Lordships concluded that it could not.", "137. Their Lordships were divided as to the appropriate test which SIAC should apply in determining whether evidence should be admitted. All of their Lordships agreed that a conventional approach to the burden of proof was not appropriate given the nature of SIAC procedures. An appellant in a SIAC appeal could not be expected to do more than raise a plausible reason that evidence might have been obtained by torture. Where he did so, it was for SIAC to initiate relevant inquiries. The majority (Lords Hope, Rodger, Carswell and Brown) then went on to find that SIAC should adopt the test of admissibility laid down in Article 15 of UNCAT. They held that SIAC should thus consider whether it was established on the balance of probabilities that the evidence was obtained by torture. If so satisfied, SIAC should not admit the evidence but, if it were doubtful, it should admit the evidence, bearing its doubt in mind when evaluating it. By contrast, Lords Bingham, Nicholls and Hoffmann found that a balance of probabilities test could never be satisfied and would undermine the practical efficacy of UNCAT. They proposed a lower test, namely that where SIAC concluded that there was a real risk that the evidence had been obtained by torture, it should not admit the evidence.", "2. R v. Mushtaq", "138. In England and Wales, section 76(2) of the Police and Criminal Evidence Act 1984 provides:", "“If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—", "(a) by oppression of the person who made it; or", "(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,", "the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”", "This test is primarily for the trial judge to determine, if necessary by holding a voire dire. In R v. Mushtaq [2005] 1 WLR 1513, the House of Lords held that the logic of section 76(2) required that, if a confession is admitted, a jury should be directed that if they considered that the confession was, or may have been, obtained by oppression or any other improper conduct they should disregard it.", "D. Canada", "139. In India v. Singh 108 CCC (3d) 274, the British Columbia Supreme Court considered an extradition request where it was alleged that the prima facie case against the fugitive, Singh, was based on five confessions of co ‑ conspirators, which had been obtained by torture. The court held that, for the purpose of determining whether the extradition could proceed because there was a prima facie case, a statement obtained by torture was inadmissible. However, the burden of proving that the statement was so obtained rested upon the fugitive who made that allegation. It was agreed that this allegation had to be proved on a balance of probabilities. The court found the allegation had not been proved to that standard for four of the statements but that it had for a fifth.", "140. The approach taken in A and others (no 2) was followed by the Canadian Federal Court in Mahjoub v. Canada (Minister of Citizenship and Immigration). Mahjoub also concerned the issue of deportation with assurances and is summarised at paragraph 153 below.", "VI. RELEVANT NATIONAL AND INTERNATIONAL CASE-LAW AND COMMENTARY ON ASSURANCES", "141. In addition to the commentary on assurances which was summarised in Ismoilov and Others v. Russia, no. 2947/06, §§ 96-100, 24 April 2008, the parties have provided the following materials.", "A. Reports and other international commentary", "142. In its 2006 concluding observations on the United States of America, the UN Committee against Torture recommended that diplomatic assurances should only be relied upon in regard to States which do not systematically violate UNCAT’s provisions, and after a thorough examination of the merits of each individual case. It recommended clear procedures for obtaining assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements.", "143. In a February 2006 address to the Council of Europe Group of Specialists on Human Rights and the Fight against Terrorism (DH-S-TER), Louise Arbour, then United Nations Commissioner for Human Rights stated:", "“Based on the long experience of international monitoring bodies and experts, it is unlikely that a post-return monitoring mechanism set up explicitly to prevent torture and ill-treatment in a specific case would have the desired effect. These practices often occur in secret, with the perpetrators skilled at keeping such abuses from detection. The victims, fearing reprisal, often are reluctant to speak about their suffering, or are not believed if they do.”", "144. In his “viewpoint” of 27 June 2006, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, stated that diplomatic assurances were pledges which were not credible and had turned out to be ineffective in well-documented cases. His view was that the principle of non-refoulement should not be undermined by convenient, non ‑ binding promises.", "145. Concerns as to the United Kingdom’s Government’s policy of seeking assurances have also been expressed by the United Kingdom Parliament’s Joint Committee on Human Rights (in its report of 18 May 2006) and the House of Commons Select Committee on Foreign Affairs (in its report of 20 July 2008).", "146. Human Rights Watch has strongly criticised the use of assurances. In an essay in its 2008 World Report entitled “Mind the Gap Diplomatic Assurances and the Erosion of the Global Ban on Torture”, it argued that the problem with assurances lay in the nature of torture itself, which was practised in secret using techniques that often defied detection. The essay also considered the arrangements between in the United Kingdom and Jordan. It characterised Adaleh as a small NGO and questioned whether, with little experience, questionable independence and virtually no power to hold the Government to account, it was able to ensure the safety of a person returned under the MOU.", "B. Complaints relating to Article 3 of UNCAT", "147. As stated paragraph 127 above, Article 3 of UNCAT prevents refoulement where there are substantial grounds for believing that someone will be subjected to torture. In Agiza v. Sweden (communication no. 233/2003, decision of 20 May 2005), the complainant had been convicted in absentia by an Egyptian court in 1998 of terrorist activity. In 2000 he claimed asylum in Sweden. His claim was rejected and he was deported to Egypt in December 2001 where he alleged he was tortured. It appears from the decision of the Committee that, while the claim was being considered, Swedish Government officials met representatives of the Egyptian Government in Cairo and obtained guarantees from a senior official that the complainant would be treated in accordance with international law on return.", "148. In examining his complaint under Article 3 of UNCAT, the Committee considered that the Swedish authorities knew, or ought to have known, of consistent and widespread use of torture of detainees in Egypt, particularly those detained for political or security reasons. Sweden was also aware that the complainant fell into this category and of the interest of foreign intelligence services in him. Swedish police officers had also acquiesced in ill-treatment by agents of an unspecified foreign State immediately before the complainant’s expulsion. These factors meant Sweden’s expulsion was in breach of Article 3. In the Committee’s view: “the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.”", "149. The Committee also found that Sweden was in breach of its procedural obligations under the same Article to provide an effective, independent and impartial review of the expulsion decision since it had been taken by the Swedish Government without recourse to the normal appeals process for asylum decisions. Sweden, by immediately removing the applicant after that decision, had also breached its obligations under Article 22 of the Convention to respect the effective right of individual communication with the Committee.", "150. In Pelit v Azerbaijan, communication no. 281/2005 decision of 29 May 2007, the complainant was extradited from Azerbaijan to Turkey, despite the Committee’s interim measure indicating that it refrain from doing so until it had considered the case. It appears that, before surrender, Azerbaijan had obtained assurances against ill-treatment from Turkey and made some provisions for monitoring after surrender. The Committee found a breach of Article 3 as Azerbaijan had not supplied the assurances to the Committee in order for the Committee to perform its own independent assessment of their satisfactoriness or otherwise, nor had it detailed with sufficient specificity the monitoring undertaken and the steps taken to ensure that it was objective, impartial and sufficiently trustworthy.", "C. Alzery v. Sweden", "151. In Mohammed Alzery v. Sweden, CCPR/C/88/D/1416/2005, 10 November 2006, the United Nations Human Rights Committee considered the removal of an Egyptian national to Egypt by Sweden, pursuant to diplomatic assurances that had been obtained from the Egyptian government. On the merits of the case, the Committee found :", "“11.3 .... The existence of diplomatic assurances, their content and the existence and implementation of enforcement mechanisms are all factual elements relevant to the overall determination of whether, in fact, a real risk of proscribed ill-treatment exists.", "...", "11.5 The Committee notes that the assurances procured contained no mechanism for monitoring of their enforcement. Nor were any arrangements made outside the text of the assurances themselves which would have provided for effective implementation. The visits by the State party’s ambassador and staff commenced five weeks after the return, neglecting altogether a period of maximum exposure to risk of harm. The mechanics of the visits that did take place, moreover, failed to conform to key aspects of international good practice by not insisting on private access to the detainee and inclusion of appropriate medical and forensic expertise, even after substantial allegations of ill-treatment emerged. In light of these factors, the State party has not shown that the diplomatic assurances procured were in fact sufficient in the present case to eliminate the risk of ill-treatment to a level consistent with the requirements of article 7 of the Covenant. The author’s expulsion thus amounted to a violation of article 7 of the Covenant.”", "D. Canadian case law", "1. Suresh", "152. In Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, the Supreme Court of Canada unanimously found that Canadian and international law did not permit deportation where on the evidence there was a substantial risk of torture. It did not find that in all cases deportation would be unconstitutional (and a refugee’s rights could be balanced against the threat he or she posed) but the balance would usually come down against expelling the refugee. The court also made the following comment on reliance on assurances against torture (paragraphs 124 and 125):", "“A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.", "In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces.”", "2. Mahjoub", "153. In Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503, which concerned removal to Egypt, the Federal Court of Canada addressed two issues: whether the Minister should rely on evidence obtained by torture in assessing an individual’s risk to national security and whether it was appropriate to rely on assurances from a country where torture was systematically practiced.", "For the first issue, the court, having reviewed the relevant Canadian authorities and A and others (no. 2) (see paragraph 136 and 137 above), found that it was wrong in law to rely on evidence likely to have been obtained by torture; however, there had to be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion. The balance of probabilities test used in Singh (see paragraphs 139-140 above) was not appropriate in a national security case where the applicant did not see the evidence against him. Instead, where an issue was raised by an applicant offering a plausible explanation why evidence was likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker found there were reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination.", "For the second, the court found that it was patently unreasonable for the executive decision-maker to have relied on Egypt’s assurances against ill ‑ treatment where she concluded that there was no substantial risk of torture of Mahjoub. It stated:", "“[The factors set out by the Supreme Court in Suresh ] provide a ‘cautious framework’ for any analysis of the trustworthiness of assurances given by a foreign government. For instance, a government with a poor human rights record would normally require closer scrutiny of its record of compliance with assurances. A poor record of compliance may in turn require the imposition of additional conditions, such as monitoring mechanisms or other safeguards which may be strongly recommended by international human rights bodies. Conversely, a country with a good human rights record would often likely have a correspondingly good record of compliance, and therefore additional conditions may be unnecessary to enhance the reliability of assurances.”", "In relying on the assurances, the executive had failed to take into account the human rights record of the Egyptian Government as well as its record of compliance with assurances. This was particularly troubling in light of the extensive human rights reports on the poor human rights record of Egypt. The two diplomatic notes which contained the assurances made no mention of monitoring mechanisms, and contained no specific commitments not to abuse Mahjoub. There was nothing to suggest Canada had sought such a monitoring mechanism from Egypt.", "3. Lai Cheong Sing", "154. In Lai Cheong Sing v. Canada (Minister of Citizenship and Immigration) 2007 FC 361, the applicants’ return to China was sought so they could stand trial for smuggling and bribery. A diplomatic note was provided in which China gave assurances they would not be sentenced to death or tortured. The Federal Court found that the executive decision-maker had been entitled to rely on the assurance against the imposition of the death penalty as the Supreme People’s Court would ensure this would be respected.", "For the risk for torture, the decision-maker had recognised that assurances were in themselves an acknowledgement that there was a risk of torture in the receiving country but she had found these considerations were offset by the applicants’ notoriety, which would protect them. The court found that she had erred in doing so. First, she had failed to address the applicants’ argument that assurances should not be sought when torture was sufficiently systematic or widespread and, in particular, had failed to assess whether it was appropriate to rely on assurances at all from China. Second, the court found an assurance should at the very least fulfil some essential requirements to ensure that it was effective and meaningful. Unlike the death penalty, torture was practised behind closed doors and was denied by the States where it occurred. Even monitoring mechanisms had proved problematic since, for example, people who have suffered torture or other ill-treatment were often too fearful of retaliation to speak out. The decision-maker therefore erred by failing to determine whether the assurances met the essential requirements to make them meaningful and reliable and by simply relying on the fact that the applicants’ notoriety would protect them. This conclusion was patently unreasonable. For torture to become known, some compliance and verification mechanisms would have to be in place (i.e. effective monitoring systems by independent organisations). Therefore, notoriety would be of no avail to the applicants if torture was practised without anybody every knowing of it.", "The court rejected the applicants’ submission that an unfair trial in China would amount to cruel and unusual treatment where the consequence was prolonged imprisonment. The court found that the decision-maker had been entitled to conclude that the trial would be fair when, inter alia, there was no evidence that the case against the applicants had been obtained by torture of witnesses.", "VII. INTERNATIONAL LAW ON REVIEW OF DETENTION AND THE RIGHT TO A FAIR TRIAL", "A. Review of detention", "155. Article 9(3) of the International Covenant on Civil and Political Rights provides inter alia that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power. The Human Rights Committee, in its General Comment No. 8 (1982) on Article 9 indicated that delays pending production before a judge should not exceed a few days. It has found violations of Article 9(3) in respect of periods of detention of four days, seven days and eight days (in, respectively, Freemantle v. Jamaica, Communication No. 625/1995; Grant v. Jamaica, Communication No. 597/1994; and Stephens v. Jamaica, Communication No. 373/1989).", "In his General Recommendations, the United Nations Special Rapporteur on Torture has stated that the maximum period of detention without judicial warrant should be forty-eight hours (E/CN.4/2003/68, paragraph 26(g)).", "In Kulomin v. Hungary, Communication No. 521/1992, the Human Rights Committee found that the relevant authority for reviewing detention could not be the public prosecutor who was responsible for the investigation of the suspect’s case as that prosecutor did not have the necessary institutional objectivity and impartiality.", "B. Access to a lawyer", "156. In addition to the materials set out in Salduz v. Turkey [GC], no. 36391/02, §§ 37-44, 27 November 2008, the applicant has provided the following materials.", "Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. The Human Rights Committee, in its General Comment 20 (1992) on Article 14, has stated that the protection of the detainee requires that prompt and regular access be given to lawyers. Failure to provide access to a lawyer for five days was found to violate Article 14 in Gridin v. Russia, Communication No. 770/1997.", "In addition to its General Comment No. 2 (cited in Salduz at paragraph 43) the Committee Against Torture has stressed the right of arrested persons to notify someone of their detention, to have prompt access to a lawyer and to be examined by an independent doctor as fundamental safeguards against torture, particular in the first hours and days of detention when the risk of torture is greatest (see conclusions and recommendations in respect of Albania of 21 June 2005 at paragraph 8(i) and France of 3 April 2006 at paragraph 16).", "The Special Rapporteur on Torture has said access to a lawyer should be provided within 24 hours (Report of 3 July 2001, A/56/156 at paragraph 39 (f)).", "C. Military Courts", "157. The applicant has provided the following international law materials, which have been produced since Ergin v. Turkey (no. 6), cited above.", "158. In General Comment No. 32 of August 2007 on Article 14 of the ICCPR (the right to a fair trial), the Human Rights Committee stated :", "“While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials. (footnotes omitted).”", "159. In Madani v. Algeria, Communication No. 1172/2003, 21 June 2007, the Committee concluded that the trial and conviction of the complainant by a military tribunal was in violation of Article 14. This was not avoided by the fact that the military judges had an independent career structure, were subject to supervision by the Supreme Judicial Council or that the court’s judgments were subject to appeal to the Supreme Court. The Committee found that Algeria had failed to show why recourse to a military court was required in Madani’s case: the gravity or character of the offences was not sufficient. This conclusion meant that the Committee did not need to examine whether the military court, as a matter of fact, afforded the full guarantees of Article 14.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "160. Relying on Article 3 of the Convention, the applicant complained that he would be at real risk of being subjected to torture or ill-treatment if deported to Jordan. Article 3 provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties’ submissions", "1. Government", "161. The Government submitted that the materials on diplomatic assurances, which the applicant and third parties had provided (see paragraphs 141–146 above), all spoke of what the practice of courts should be, rather than the established requirements of the Convention. This Court’s approach had been to find that assurances were not in themselves sufficient to prevent ill-treatment; however, the Court would also examine whether such assurances provided in their practical application a sufficient guarantee against ill-treatment (see Babar Ahmad and Others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, § 106, 6 July 2010). Furthermore, contrary to the applicant’s submission (see paragraph 168 below), there was no principle in the Court’s case-law that, where there was a real risk of ill-treatment owing to systemic torture in the country of destination, assurances were incapable of eliminating that risk.", "162. SIAC had followed the Court’s approach to assurances. It had received a wide variety of evidence, both as to the meaning and likely effect of the assurances and the current situation in Jordan. It had examined that evidence with great care in its determination. All the factors it had relied on in reaching its conclusions continued to apply with at least as much force as they did at the time of its determination. Its conclusions could not be altered by the critical reports which had been published since its determination; those reports were of a general nature. If anything, the evidence showed that the human rights situation was improving and had certainly not deteriorated since SAIC’s determination.", "163. The Government submitted that SIAC had found that the assurances given by Jordan in the present case would suffice because: (i) Jordan was willing and able to fulfil its undertakings; (ii) the applicant would be protected by his high profile; and (iii) there would be monitoring by the Adaleh Centre.", "164. For the first, the Government reiterated that the assurances contained in the MOU had been given in good faith and approved at the highest levels of the Jordanian Government. They were intended to reflect international standards. There was no lack of clarity in them, especially when the MOU was interpreted in its diplomatic and political context. Proper interpretation of the terms of the MOU provided for the applicant to be brought promptly before a judge or other judicial officer (which, in Jordanian law, would include the Public Prosecutor) and for him to have access to independent legal and medical advice. To criticise the MOU because it was not legally binding (as the applicant had) was to betray a lack of an appreciation as to how MOUs worked in practice between states; they were a well-established and much used tool of international relations. There were, as SIAC had found, sound reasons why Jordan would comply with this particular MOU. It was in the interests of both Governments that the assurances be respected; as SIAC had found, Jordan’s position in the Middle East and its relationship with the United States did not change this. SIAC had also found that, notwithstanding the applicant’s submission to the contrary, it was in the interests of both Governments properly to investigate any alleged breaches of the MOU. In the present case, it was also of considerable importance that the GID, which would detain the applicant on return, had “signed up” to the MOU, had been involved in its negotiation, had accepted its monitoring provisions, and had been made aware of the consequences of breaching the assurances. The Government further relied on SIAC’s findings in the appeal of VV (see paragraph 75 above), which updated and confirmed SIAC’s determination in the present applicant’s case. In VV SIAC had accepted Mr Layden’s evidence that the bilateral relationship between the United Kingdom and Jordan, upon which the MOU rested, was a close one.", "165. For the second, the Government recalled that SIAC had found the applicant to be a well-known figure in the Arab world and that, regardless of the MOU, his return and subsequent treatment would be a matter of intense local and international media interest and scrutiny. Jordanian civil society, including Jordanian parliamentarians, would follow the applicant’s case with interest. Any ill-treatment would cause considerable outcry and would be destabilising for the Jordanian Government. As SIAC had found, those responsible for his detention would be aware of these factors.", "166. For the third, the Government emphasised that, although SIAC had criticised the capacity of the Adaleh Centre, it had by no means discounted the effect of monitoring; indeed, it had found that monitoring would have a positive effect in reducing the risk of ill-treatment. Moreover, since SIAC’s determination, there had been a considerable increase in Adaleh’s expertise. As Mr Layden’s statements indicated, it had received significant European Commission funding; it had started monitoring through its subsidiary, the NTCT; it had obtained practical experience in visiting detainees, included those held by the GID; it had obtained experience working with other NGOs; it had considerably increased its staff, including medical experts; and it had demonstrated its independence from the government, particularly the GID, by publishing a study on torture. Contrary to the applicant’s suggestion, it had retained its not-for-profit status (and its independence) despite the criticism it had received from other NGOs for signing the terms of reference. The Government further submitted that the applicant’s criticisms of Adaleh were, in any event, misplaced because the actual monitoring would be carried out by Adaleh’s subsidiary, the NTCT. The Government also submitted that, whatever the general problems with human rights monitoring in Jordan, the MOU and the terms of reference provided Adaleh with a clear and detailed mandate and it was clear to all parties how monitoring visits were to proceed. If Adaleh encountered any problems, it could alert the United Kingdom Embassy in Amman. The Government also underlined that, in accordance with the Note Verbale annexed to Mr Layden’s second statement (see paragraph 90 above), monitoring would continue for as long as the applicant was detained.", "167. For these reasons, the Government submitted there were considerable distinctions between the assurances previously considered by the Court and those provided by Jordan. Those assurances, when taken with the monitoring provisions, were sufficient to ensure that there would be no violation if the applicant were deported to Jordan.", "2. The applicant", "168. The applicant submitted that, as a matter of law, proper regard had to be given to the international community’s criticism of assurances. The international consensus was that assurances undermined the established international legal machinery for the prohibition on torture and, if a country was unwilling to abide by its international law obligations, then it was unlikely to abide by bilateral assurances. International experience also showed that proof of compliance was notoriously difficult. The applicant also submitted that, following the approach taken by the Supreme Court of Canada in Suresh (see paragraph 152 above), it was also appropriate to distinguish between an assurance that a State would not do something legal (such as carry out the death penalty) and an assurance that it will not do something illegal (such as commit torture). Moreover, this Court’s case law, particularly Shamayev and Ismoilov, cited above, demonstrated that, once a particular risk was shown to apply to an individual, assurances would not be sufficient, especially when torture was also shown to be systemic in the country of destination. He submitted, therefore, assurances would only suffice where (i) a previous systemic problem of torture had been brought under control; and (ii) although isolated, non-systemic acts continued, there was independent monitoring by a body with a track-record of effectiveness, and criminal sanctions against transgressors. These criteria had not been met in his case.", "169. The applicant relied on the evidence set out at paragraphs 106–124 above, which, he submitted, demonstrated that Jordanian prisons were beyond the rule of law. Torture was endemic, particularly for GID prisons and Islamist prisoners, who were frequently beaten. There was a systemic failure to carry out prompt and effective investigations of allegations of torture. This evidence was even more compelling than at the time of SIAC’s determination. Moreover, the culture of impunity that prevailed in the GID rendered it incapable of abiding by the assurances, even if its leadership wanted to. Jordan could not be relied upon to meet its international human rights obligations. It had refused to submit to any form of enforcement of those obligations; for instance, it had refused to ratify either Article 22 to UNCAT (the right of individual petition to the Committee against Torture) or the Optional Protocol to UNCAT (which established the Sub-Committee on the Prevention of Torture and gave it, inter alia, the right to visit places of detention).", "170. The Jordanian Government’s assurances in his case also had to be seen in their proper political context. Although strategically important, Jordan was unstable, reliant on American patronage, prone to unrest and vulnerable to Islamism. Thus, while he did not contest that external relations between Jordan and the United Kingdom were close, the applicant considered these countervailing factors meant the bilateral relationship between the two countries was insufficient to guarantee adherence to the MOU.", "171. Against this background, his high profile would not protect him but would in fact place him at greater risk; in fact, it was his profile that necessitated the MOU in the first place. He had previously been tortured because he had publically criticised Jordan’s foreign policy. Jordan’s extradition request had been withdrawn because his presence was not considered to be desirable. That assessment could only have been confirmed by SIAC’s conclusions as to the national security threat he posed to the United Kingdom. Moreover, Jamil el Banna, Bishar al Rawi and Binyam Mohamed, who had been detained by the United States authorities at Guantánamo Bay and elsewhere, had stated that they had been interrogated at length as to their links with him. If deported, he would be regarded as a significant threat to the country and the Middle East. In such an unstable environment, the Jordanian Government’s calculations as to whether to abide by the MOU could well change. These factors, when taken with the culture of impunity in the GID, meant his high profile would operate, not as a source of protection, but as a magnet for abuse. Moreover, it was irrational for SIAC to have found that Jordan would abide by the assurances because an allegation of ill-treatment – whether true or not – could be just as destabilising as proof that the allegation was correct. On this finding, there would be no reason for the Jordanian authorities not to ill-treat the applicant, as it would always be open to him to make a false allegation.", "172. There were also a number of deficiencies in the MOU. It was not clear what was meant by “judge” in respect of the guarantee that he would be “brought promptly before a judge”; it could simply mean that he will brought before a prosecutor acting as an administrative judge. It was not also clear whether he would have access to a lawyer during the interrogation period of his detention. It was also not clear whether MOU prohibited rendition, which was made more likely by the interest the United States had in him and the evidence of Jordan’s participation in previous renditions. Finally, it was not clear whether, as a matter of Jordanian law, the assurances in the MOU were legal and enforceable when they had not been approved by the Jordanian Parliament. He submitted a statement to that effect from the head of another Jordanian NGO, the Arab Organisation for Human Rights, which had declined to take on the role of monitoring body for that reason.", "173. In respect of monitoring of the assurances, he adopted the views of the third party interveners that there was no independent monitoring in Jordan, a factor which, he submitted, had to weigh in the balance in considering Adaleh’s capabilities. For Adaleh itself, the striking feature of the evidence before the Court was that, even in the intervening time since SIAC’s determination, it was still without any practical experience of human rights monitoring and was instead mostly concerned with training and advocacy work. Moreover, although Adaleh had produced one report on combating torture in 2008, it was significant that the report made no direct criticism of the GID.", "174. Notwithstanding Adaleh’s own limitations, the nature of the monitoring provided for by the terms of reference was also limited. Consistently with those terms of reference, Jordan could limit access to one visit every two weeks. In addition, no provision was made for independent medical examinations; Adaleh would not enjoy unfettered access to the entire place of the applicant’s detention, as it would merely be entitled to a private visit with him; there was no mechanism for Adaleh to investigate a complaint of ill-treatment; neither the applicant nor his lawyers would have access to Adaleh’s reports to the Jordanian and United Kingdom Governments; and it appeared that monitoring would be limited to three years. All of these factors meant that Adaleh’s monitoring fell short of international standards, such as those set out in the Optional Protocol to UNCAT. Moreover, even assuming that Adaleh was able to seek entry to the applicant’s place of detention, in order to escape monitoring, the authorities would simply have to tell them that the applicant did not wish to see them.", "3. Third party interveners", "175. The third party interveners (see paragraph 5 above) submitted that the use of diplomatic assurances was a cause for grave concern. Such bilateral, legally unenforceable diplomatic agreements undermined the ius cogens nature of the absolute prohibition on torture and the non-refoulement obligation. They also undermined the binding, multilateral, international legal system which held states to these obligations. Assurances had been widely condemned as wrong in principle and ineffective in practice by international experts such as the UN High Commissioner for Human Rights, the Council of Europe Committee for the Prevention of Torture, as well as the United Kingdom Joint Committee on Human Rights (see paragraphs 141- 145 above).", "176. More practically, there were four significant weaknesses in assurances. First, they were unable to detect abuse. Torture was practised in secret and sophisticated torture techniques were difficult to detect, particularly given the reluctance of victims to speak frankly to monitors for fear of reprisals.", "177. Second, the monitoring regimes provided for by assurances were unsatisfactory. For example, they contrasted unfavourably with the International Committee of the Red Cross’ practice of never visiting single detainees so as to avoid involuntary identification of those who complain of abuse. The third parties also noted that the UN Special Rapporteur had also rejected the proposition that visits to a single detainee could be an effective safeguard. It was also noteworthy that the Committee for the Prevention of Torture had declined to monitor compliance with assurances.", "178. Third, frequently, local monitors lacked the necessary independence. They did not possess the authority to gain access to places of detention, to lodge complaints or to exert pressure on the authorities to halt any abuses. They were themselves subject to harassment and intimidation.", "179. Fourth, assurances also suffered from a lack of incentives to reveal breaches as neither Government concerned would wish to admit to breaching its international obligations and, in the case of the sending Government, to jeopardise future deportations on grounds of national security. As unenforceable promises from one State to another, assurances could be breached without serious consequences.", "180. The third parties also submitted that their own reports (summarised at paragraphs 112–118 above) had documented Jordan’s longstanding record of torture and ill-treatment of terrorist and national security suspects. In their submission, those reports showed that the GID had continually frustrated efforts to carry out monitoring. For example, in 2003 the International Committee of the Red Cross had been forced to suspend visits owing to breaches in visitation procedures by the GID; the UN Special Rapporteur had been prevented from carrying out private interviews. The GID continued to deny all allegations of ill-treatment. Internal redress for allegations was non-existent and criminal sanctions were inadequate. The few officers who had been convicted of torture had been given excessively lenient sentences.", "181. The view of the third parties, which was based on interviews between Human Rights Watch and the head of Adaleh, was that the centre was a for-profit company which had not carried out any inspections. Nor had the centre privately or publicly expressed any concerns of ill-treatment in Jordanian detention facilities.", "B. Admissibility", "182. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. General principles", "183. First, the Court wishes to emphasise that, throughout its history, it has been acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights (see, inter alia, Lawless v. Ireland (no. 3), 1 July 1961, §§ 28–30, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005 ‑ IV; Chahal, cited above, § 79; A and Others v. the United Kingdom, cited above, § 126; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010). Faced with such a threat, the Court considers it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances ( Boutagni v. France, no. 42360/08, § 45, 18 November 2010; Daoudi v. France, no. 19576/08, § 65, 3 December 2009).", "184. Second, as part of the fight against terrorism, States must be allowed to deport non-nationals whom they consider to be threats to national security. It is no part of this Court’s function to review whether an individual is in fact such a threat; its only task is to consider whether that individual’s deportation would be compatible with his of her rights under the Convention (see also Ismoilov and Others, cited above, §126).", "185. Third, it is well-established that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion ( Saadi v. Italy [GC], no. 37201/06, §§ 125 and 138, ECHR 2008-...).", "186. Fourth, the Court accepts that, as the materials provided by the applicant and the third party interveners show, there is widespread concern within the international community as to the practice of seeking assurances to allow for the deportation of those considered to be a threat to national security (see paragraphs 141- 145 above and Ismoilov and Others, cited above, §§ 96-100). However, it not for this Court to rule upon the propriety of seeking assurances, or to assess the long term consequences of doing so; its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment. Before turning to the facts of the applicant’s case, it is therefore convenient to set out the approach the Court has taken to assurances in Article 3 expulsion cases.", "187. In any examination of whether an applicant faces a real risk of ill ‑ treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill ‑ treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148).", "188. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances (see, for instance, Gaforov v. Russia, no. 25404/09, § 138, 21 October 2010; Sultanov v. Russia, no. 15303/09, § 73, 4 November 2010; Yuldashev v. Russia, no. 1248/09, § 85, 8 July 2010; Ismoilov and Others, cited above, §127).", "189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:", "(i) whether the terms of the assurances have been disclosed to the Court ( Ryabikin v. Russia, no. 8320/04, § 119, 19 June 2008; Muminov v. Russia, no. 42502/06, § 97, 11 December 2008; see also Pelit v. Azerbaijan, cited above);", "(ii) whether the assurances are specific or are general and vague ( Saadi ¸ cited above; Klein v. Russia, no. 24268/08, § 55, 1 April 2010; Khaydarov v. Russia, no. 21055/09, § 111, 20 May 2010);", "(iii) who has given the assurances and whether that person can bind the receiving State ( Shamayev and Others v. Georgia and Russia, no. 36378/02, § 344, ECHR 2005 ‑ III; Kordian v. Turkey (dec.), no. 6575/06, 4 July 2006; Abu Salem v. Portugal (dec.), no 26844/04, 9 May 2006; cf. Ben Khemais v. Italy, no. 246/07, § 59, ECHR 2009 ‑ ... (extracts); Garayev v. Azerbaijan, no. 53688/08, § 74, 10 June 2010; Baysakov and Others v. Ukraine, no. 54131/08, § 51, 18 February 2010; Soldatenko v. Ukraine, no. 2440/07, § 73, 23 October 2008);", "(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them ( Chahal, cited above, §§ 105-107);", "(v) whether the assurances concerns treatment which is legal or illegal in the receiving State ( Cipriani v. Italy (dec.), no. 221142/07, 30 March 2010; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Ismaili v. Germany, no. 58128/00, 15 March 2001; Nivette v. France (dec.), no 44190/98, ECHR 2001 VII; Einhorn v. France (dec.), no 71555/01, ECHR 2001-XI; see also Suresh and Lai Sing, both cited above)", "(vi) whether they have been given by a Contracting State ( Chentiev and Ibragimov v. Slovakia (dec.), nos. 21022/08 and 51946/08, 14 September 2010; Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009);", "(vii)the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances ( Babar Ahmad and Others, cited above, §§ 107 and 108; Al ‑ Moayad v. Germany (dec.), no. 35865/03, § 68, 20 February 2007);", "(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers ( Chentiev and Ibragimov and Gasayev, both cited above; cf. Ben Khemais, § 61 and Ryabikin, § 119, both cited above; Kolesnik v. Russia, no. 26876/08, § 73, 17 June 2010; see also Agiza, Alzery and Pelit, cited above);", "(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible ( Ben Khemais, §§ 59 and 60; Soldatenko, § 73, both cited above; Koktysh v. Ukraine, no. 43707/07, § 63, 10 December 2009);", "(x) whether the applicant has previously been ill-treated in the receiving State ( Koktysh, § 64, cited above); and", "(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State ( Gasayev; Babar Ahmad and Others ¸ § 106; Al-Moayad, §§ 66-69).", "2. The applicant’s case", "190. In applying these factors to the present case, the Court wishes to state that it has only considered the open evidence led before SIAC, the additional evidence which has been submitted to the Court (summarised at paragraphs 83–92 above), and publicly available reports on the human rights situation in Jordan (summarised at paragraphs 106–124 above). The Court has not received the additional closed evidence that was before SIAC, nor has it been asked to consider that evidence. Similarly, since it has not considered SIAC’s closed judgment, it is of no relevance to the Court’s own, ex nunc assessment of whether there would be a violation of Article 3 that SIAC, in forming its own conclusion on Article 3, considered additional, closed evidence that was not recorded in its open determination.", "191. Turning therefore to the evidence before it, the Court first notes that the picture painted by the reports of United Nations bodies and NGOs of torture in Jordanian prisons is as consistent as it is disturbing. Whatever progress Jordan may have made, torture remains, in the words of the United Nations Committee Against Torture, “widespread and routine” (see paragraph 107 above). The Committee’s conclusions are confirmed by the other reports summarised at paragraphs 106–124 above, which demonstrate beyond any reasonable doubt that torture is perpetrated systematically by the General Intelligence Directorate, particularly against Islamist detainees. Torture is also practiced by the GID with impunity. This culture of impunity is, in the Court’s view, unsurprising: the evidence shows that the Jordanian criminal justice system lacks many of the standard, internationally recognised safeguards to prevent torture and punish its perpetrators. As the Human Rights Committee observed in its concluding observations, there is an absence of a genuinely independent complaints mechanism, a low number of prosecutions, and the denial of prompt access to lawyers and independent medical examinations (see paragraph 108 above). The conclusions of the Committee Against Torture (which are corroborated by the reports of Amnesty International, Human Rights Watch and the Jordanian National Centre for Human Rights) show that these problems are made worse by the GID’s wide powers of detention and that, in state security cases, the proximity of the Public Prosecutor to the GID means the former provides no meaningful control over the latter (see paragraphs 107, 112–113, 116 and 119–122 above). Finally, as the Special Rapporteur, Amnesty International and the NCHR confirm, there is an absence of co ‑ operation by the GID with eminent national and international monitors (see paragraphs 109 and 121 above).", "192. As a result of this evidence it is unremarkable that the parties accept that, without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan. The Court agrees. It is clear that, as a high profile Islamist, the applicant is part of a category of prisoners who are frequently ill-treated in Jordan. It is also of some relevance that he claims to have previously been tortured in Jordan (see his asylum claim, summarised at paragraph 7 above). However, consistent with the general approach the Court has set out at paragraphs 187–189 above, the Court must also consider whether the assurances contained in the MOU, accompanied by monitoring by Adaleh, remove any real risk of ill-treatment of the applicant.", "193. In considering that issue, the Court observes that the applicant has advanced a number of general and specific concerns as to whether the assurances given by Jordan are sufficient to remove any real risk of ill-treatment of him. At the general level, he submits that, if Jordan cannot be relied on to abide by its legally binding, multilateral international obligations not to torture, it cannot be relied on to comply with non-binding bilateral assurances not to do so. He has also argued that assurances should never be relied on where there is a systematic problem of torture and ill ‑ treatment and further argues that, even where there is evidence of isolated, non-systemic acts of torture, reliance should only be placed on assurances where those are supported by the independent monitoring of a body with a demonstrable track-record of effectiveness in practice. The Court does not consider that these general submissions are supported by its case-law on assurances. As the general principles set out at paragraphs 187 ‑ 189 above indicate, the Court has never laid down an absolute rule that a State which does not comply with multilateral obligations cannot be relied on to comply with bilateral assurances; the extent to which a State has failed to comply with its multilateral obligations is, at most, a factor in determining whether its bilateral assurances are sufficient. Equally, there is no prohibition on seeking assurances when there is a systematic problem of torture and ill ‑ treatment in the receiving State; otherwise, as Lord Phillips observed (see paragraph 57 above), it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them.", "194. Moreover, the Court does not consider that the general human rights situation in Jordan excludes accepting any assurances whatsoever from the Jordanian Government. Instead, the Court considers the United Kingdom and Jordanian Governments have made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant will not be ill-treated upon return to Jordan. The product of those efforts, the MOU, is superior in both its detail and its formality to any assurances which the Court has previously examined (compare, for example, the assurances provided in Saadi, Klein and Khaydarov, all cited at paragraph 189(ii) above). The MOU would also appear to be superior to any assurances examined by the United Nations Committee Against Torture and the United Nations Human Rights Committee (see Agiza, Alzery and Pelit, summarised at paragraphs 147–151 above). The MOU is specific and comprehensive. It addresses directly the protection of the applicant’s Convention rights in Jordan (see paragraphs 1–8 of the MOU, set out at paragraphs 77 and 78 above). The MOU is also unique in that it has withstood the extensive examination that has been carried out by an independent tribunal, SIAC, which had the benefit of receiving evidence adduced by both parties, including expert witnesses who were subject to extensive cross-examination (see paragraphs 28 and 189(xi) above).", "195. The Court also agrees with SIAC’s general assessment that the assurances must be viewed in the context in which they have been given. Although the Court considers that, in his statements to the Court (summarised at paragraphs 83–90 above), Mr Layden has a tendency to play down the gravity of Jordan’s record on torture, by virtue of his position he is able to speak with some authority as to the strength of the United Kingdom ‑ Jordanian bilateral relationship as well as the importance of the MOU to that relationship. From Mr Layden’s statements, and the further evidence before SIAC, the Court considers that there is sufficient evidence for it to conclude that the assurances were given in good faith by a Government whose bilateral relations with the United Kingdom have, historically, been very strong (see Babar Ahmad and Others and Al ‑ Moayad, both cited at paragraph 189(vii) above). Moreover, they have been approved at the highest levels of the Jordanian Government, having the express approval and support of the King himself. Thus, it is clear that, whatever the status of the MOU in Jordanian law, the assurances have been given by officials who are capable of binding the Jordanian State (cf. Ben Khemais, Garayev, Baysakov and others, and Soldatenko, all cited at paragraph 189(iii) above). Just as importantly, the assurances have the approval and support of senior officials of the GID (cf. Chahal, cited at paragraph 189(iv) above). In the Court’s view, all of these factors make strict compliance with both the letter and spirit of the MOU more likely.", "196. Similarly, although the applicant has argued that his high profile would place him at greater risk, the Court is unable to accept this argument, given the wider political context in which the MOU has been negotiated. It considers it more likely that the applicant’s high profile will make the Jordanian authorities careful to ensure he is properly treated; the Jordanian Government is no doubt aware that not only would ill-treatment have serious consequences for its bilateral relationship with the United Kingdom, it would also cause international outrage. Admittedly, as it was put by the Federal Court of Canada in Lai Sing (see paragraph 154 above), notoriety is of no avail if torture is practised without anybody ever knowing it. However, that argument carries less weight in the present case not least because of the monitoring mechanisms which exist in the present case and which were wholly absent in Lai Sing.", "197. In addition to general concerns about the MOU, the Court notes that the applicant has relied on six specific areas of concern as to the meaning and operation of the assurances. He submits that the MOU is not clear as to: (i) what was meant by “judge” in respect of the guarantee that he would be “brought promptly before a judge”; (ii) whether he would have access to a lawyer during the interrogation period of his detention; (iii) whether rendition is prohibited; (iv) whether, as a matter of Jordanian law, the assurances in the MOU were legal and enforceable; (v) Adaleh’s terms of access to him; and (vi) its capacity to monitor the assurances. The Court will consider each concern in turn.", "198. For the first, the Court considers that the MOU would have been considerably strengthened if it had contained a requirement that the applicant be brought within a short, defined period after his arrest before a civilian judge, as opposed to a military prosecutor. This is all the more so when experience has shown that the risk of ill-treatment of a detainee is greatest during the first hours or days of his or her detention (see the views of the United Nations Committee Against Torture at paragraph 156 above; the Committee for the Prevention of Torture 9 th General Report, quoted in Panovits v. Cyprus, no. 4268/04, § 46, 11 December 2008). However, the Court notes that, although it is unusual for lawyers to accompany detainees to appearances before the Public Prosecutor, as a matter of Jordanian law, the applicant would be entitled as of right to have a lawyer present (see Mr Al-Khalila and Mr Najdawi’s report at paragraph 97 above). Given that the applicant’s appearance before the Public Prosecutor within twenty-four hours of his return would be the first public opportunity for the Jordanian authorities to demonstrate their intention to comply with the assurances, the Court considers that it would be unlikely for the Public Prosecutor to refuse to allow a lawyer to be present. Moreover, the applicant’s first appearance before the Public Prosecutor must be seen in the context of the other arrangements which are in place for his return. For instance, it is likely that the monitors who would travel with the applicant from the United Kingdom to Jordan would remain with him for at least part of the first day of detention in Jordan. This compares favourably with the delay of five weeks in obtaining access which the UN Human Rights Committee found to be deficient in Alzery (see paragraph 151 above) and significantly diminishes any risk of ill-treatment that may have arisen from a lack of clarity in the MOU.", "199. For the second concern, the absence of a lawyer during interrogation, SIAC found that it was unlikely that the applicant would have a lawyer present during questioning by the GID, that it was likely that he would have a lawyer present for any questioning by the Public Prosecutor and very likely that he would have such representation for any appearance before a judge. Denial of access to a lawyer to a detainee, particularly during interrogation is a matter of serious concern: the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment ( Salduz, cited above, § 54). However, in the present case, that risk is substantially reduced by the other safeguards contained in the MOU and the monitoring arrangements.", "200. Third, the Court would discount the risk that the applicant would be ill-treated if questioned by the CIA, that he would be placed in a secret GID or CIA “ghost” detention facility in Jordan, or that he would be subject to rendition to a place outside Jordan. In Babar Ahmad and Others, cited above, §§ 78-82 and 113-116, the Court observed that extraordinary rendition, by its deliberate circumvention of due process, was anathema to the rule of law and the values protected by the Convention. However, in that case, it found the applicants’ complaints that they would be subjected to extraordinary rendition to be manifestly ill-founded. Although the United States, which had requested their extradition, had not given any express assurances against rendition, it had given assurances that they would be tried before federal courts; the Court found rendition would hardly be compatible with those assurances.", "Similar considerations apply in the present case. Although rendition is not specifically addressed in the MOU, the MOU clearly contemplates that the applicant will be deported to Jordan, detained and retried for the offences for which he was convicted in absentia in 1998 and 1999. If he is convicted, he will be imprisoned in a GID detention facility. It would wholly incompatible with the MOU for Jordan to receive the applicant and, instead of retrying him, to hold him at an undisclosed site in Jordan or to render him to a third state. By the same token, even if he were to be interrogated by the United States authorities while in GID detention, the Court finds no evidence to cast doubt on SIAC’s conclusion that the Jordanian authorities would be careful to ensure that the United States did not “overstep the mark” by acting in a way which violated the spirit if not the letter of the MOU.", "201. Fourth, it may well be that as matter of Jordanian law the MOU is not legally binding. Certainly, as an assurance against illegal behaviour, it should be treated with more scepticism than in a case where the State undertakes not to do what is permitted under domestic law (see paragraph 189(v) above). Nevertheless, SIAC appreciated this distinction. It is clear from its determination that SIAC exercised the appropriate caution that should attach to such an assurance (see its general findings on the MOU at paragraphs 29 et seq. above). The Court shares SIAC’s view, not merely that there would be a real and strong incentive in the present case for Jordan to avoid being seen to break its word but that the support for the MOU at the highest levels in Jordan would significantly reduce the risk that senior members of the GID, who had participated in the negotiation of the MOU, would tolerate non-compliance with its terms.", "202. Fifth, the applicant has relied on the discrepancy between the Arabic and English versions of the MOU as evidence that Adaleh will only have access to him for three years after his deportation. However, the Court considers that this issue has been resolved by the diplomatic notes which have been exchanged by the Jordanian and United Kingdom Governments (see Mr Layden’s second statement at paragraph 90 above), which make clear that Adaleh will have access to the applicant for as long as he remains in detention.", "203. Sixth, it is clear that the Adaleh Centre does not have the same expertise or resources as leading international NGOs such as Amnesty International, Human Rights Watch or the International Committee of the Red Cross. Nor does it have the same reputation or status in Jordan as, for example, the Jordanian NCHR. However, in its determination SIAC recognised this weakness. It recognised the Centre’s “relative inexperience and scale” but concluded that it was the very fact of monitoring visits which was important (see paragraph 31 above). The Court agrees with this conclusion. Moreover, the Court is persuaded that the capability of the Centre has significantly increased since SIAC’s determination, even if it still has no direct experience of monitoring. Mr Layden’s statements show that it has been generously funded by the United Kingdom Government, which in itself provides a measure of independence for the Centre, at least from the Jordanian Government. Given the United Kingdom Government’s broader interest in ensuring that the assurances are respected, it can be expected that this funding will continue. Nothing would appear to turn on any change which may have taken place in the Centre’s legal status, nor on the fact that several other organisations may have been approached as possible monitoring bodies before it. Although credence must be attached to Mr Wilke’s account that the head of the Centre, Mr Rababa, appeared to know little of the applicant’s legal proceedings in the United Kingdom, it must now be clear to Mr Rababa, from the meetings he has had with United Kingdom Government Ministers, what the role of the Centre is in monitoring, as well as the importance of the issue to the United Kingdom Government. Similarly, although Mr Rababa may well have family ties the security services, as alleged by Ms Refahi in her second statement (see paragraph 92 above), there is no evidence that anyone close to him will be responsible for the applicant’s detention. More importantly, the scrutiny the Centre can expect from Jordanian and international civil society as to how it carries out the monitoring must outweigh any remote risk of bias that might arise from Mr Rababa’s family ties.", "204. Although the precise nature of the relationship between the Centre and its subsidiary, the National Team to Combat Torture, is unclear, it would appear that the NTCT is fully staffed and has the necessary interdisciplinary expertise to draw on for monitoring (see Mr Layden’s first statement at paragraph 87 above). The Court would expect that, whatever allegations have been made as to the composition of the NTCT, the applicant would be visited by a delegation which included medical and psychiatric personnel who were capable of detecting physical or psychological signs of ill-treatment (see paragraph 4(d) of the terms of reference for the Centre, quoted at paragraph 81 above). There is every reason to expect that the delegation would be given private access to the applicant (paragraph 4(c) of the terms of reference, ibid.). It would clearly be in the applicant’s interest to meet the delegation according to the pre ‑ arranged timetable and thus the Court considers it is implausible that the GID, in order to escape monitoring, would tell the delegation that the applicant did not wish to see them. In the event that the delegation were to receive such a response, the Court considers that this would be precisely the kind of situation that would result in the “rapidly escalating diplomatic and Ministerial contacts and reactions” foreseen by Mr Oakden in his evidence to SIAC (see paragraph 30 above). For these reasons, the Court is satisfied that, despite its limitations, the Adaleh Centre would be capable of verifying that the assurances were respected.", "205. For the foregoing reasons the Court concludes that, on the basis of the evidence before it, the applicant’s return to Jordan would not expose him to a real risk of ill-treatment.", "206. Finally, in the course of the written proceedings, a question was put to the parties as to whether the applicant was at risk of a sentence of life imprisonment without parole and, if so, whether this would be compatible with Article 3 of the Convention. The parties agreed there was no such risk as life sentences in Jordan ordinarily last twenty years. The applicant also accepted that the length of his sentence could be examined in the context of his Article 6 complaint. The Court agrees with the parties and considers that, in the applicant’s case, no issue would arise under Article 3 in respect of the length of any sentence which may be imposed on him in Jordan.", "207. Accordingly, the Court finds that the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION", "208. The applicant complained that it was incompatible with Article 3 taken in conjunction with Article 13 of the Convention for SIAC, in order to establish the effectiveness of the assurances given by Jordan, to rely upon material which was not disclosed to him. Article 13 provides as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "1. Government", "209. The Government adopted the reasoning of the House of Lords in the present case (see paragraphs 54–56 above). They submitted that the Court’s established case-law made clear that an effective remedy under Article 13 was not required to satisfy all the requirement of Article 6. All that was required by Article 13 was independent and impartial scrutiny of an applicant’s Article 3 claim. This in turn required that an independent appeal body be informed of the reasons for deportation; there had to be a form of adversarial proceedings, if necessary through a special representative with security clearance; and that the body be competent to reject the executive’s assertions where it finds them arbitrary or unreasonable ( Al-Nashif v. Bulgaria, no. 50963/99, §§ 133–137, 20 June 2002; C.G. and Others v. Bulgaria, no. 1365/07, §§ 57 and 62, 24 April 2008).", "210. SIAC procedures clearly satisfied these requirements. As the Court had held in A and Others v. the United Kingdom, cited above, § 219, it was a fully independent court, which could examine all the relevant evidence, both closed and open. This is especially so, given the Secretary of State’s obligation to disclose evidence which helps an appellant and the fact that the closed sessions enabled SIAC to see more evidence than would otherwise be the case. Proceedings before SIAC were adversarial, involving the applicant’s own representatives and, in closed sessions, the special advocates. SIAC’s jurisdiction was not limited to reviewing the executive’s decision on grounds of arbitrariness or unreasonableness: it conducted a full merits review and had allowed appeals against deportation, for instance in DD and AS (see paragraph 74 above). In the applicant’s case, SIAC had stated in its open judgment that the closed evidence played a limited and confirmatory role in its decision.", "2. The applicant", "211. The applicant observed that, after Chahal, cited above, SIAC and the system of special advocates had been designed to allow the Secretary of State to present her case as to why a particular returnee was a risk to national security, not to allow secret evidence on safety on return. A ministerial assurance to that effect had been given to Parliament when it passed the 1997 Act (Hansard, HC Deb 26 November 1997 vol 301, at 1040).", "212. The Court had never regarded it as permissible, either in Chahal or subsequently, for the quality of assurances to be tested on the basis of evidence heard in secret. Moreover, the Court had emphasised in Saadi, cited above, § 127) that the examination of the existence of a real risk “must necessarily be a rigorous one”. The applicant submitted that even greater rigour was required in a case involving assurances when the respondent State accepted that, without those assurances, there would be real risk of ill ‑ treatment. For that reason, he submitted that there ought to be an enhanced requirement for transparency and procedural fairness where assurances were being relied upon because, in such a case, the burden fell on the respondent State to dispel any doubts about a serious risk of ill ‑ treatment on return. As a matter of principle, therefore, a respondent State should never be allowed to rely on confidential material on safety of return. Not only was it unfair to do so, it ran the unacceptable risk of not arriving at the correct result. This was not a theoretical issue in his case: it was clear that closed evidence had been critical in his case. For instance, it was clear that evidence had been heard in closed session about the United States and its interest in interviewing him. It was also clear that closed evidence had been relied on to support SIAC’s finding that the GID leadership were committed to respecting the assurances. Finally, he submitted that the special advocate system could not mitigate the difficulties faced in challenging Foreign and Commonwealth Office witnesses as to the negotiation of the MOU.", "3. Third party interveners", "213. The third parties (see paragraph 5 above) submitted that Lord Phillips had erred in his reasons for holding that there would be no unfairness in SIAC hearing closed evidence on safety on return. It was true a returnee would typically have knowledge of some of the facts relevant to safety on return, but it did not follow that he would not be seriously disadvantaged by not knowing the Government’s case. Procedural fairness required that the applicant be given sufficient detail of the Government’s case to enable him to give effective instructions to his special advocate. It was also a mistake to suppose that the returnee would having nothing to say in reply to information that the receiving Government might have communicated confidentially to the United Kingdom Government; one could never know what difference disclosure to the applicant could make. The safeguard of the special advocate was not sufficient; the Grand Chamber in A and Others v. the United Kingdom, cited above, had recognised the difficulties special advocates had in defending the returnees interests in closed sessions of SIAC.", "B. Admissibility", "214. The Court notes that this complaint is linked to the applicant’s substantive Article 3 complaint and must therefore likewise be declared admissible.", "C. Merits", "215. The requirements of Article 13 in the context of an arguable Article 3 claim were recently set out in A. v. the Netherlands, cited above, §§ 155 ‑ 158, which concerned the proposed expulsion of a terrorist suspect to Libya:", "“155. The Court reiterates that Article 13 guarantees the availability at the national level of a remedy to enforce – and hence to allege non-compliance with – the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order and bearing in mind that Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 444, ECHR 2005 III). For Article 13 to be applicable, the complaint under a substantive provision of the Convention must be arguable. In view of the above finding under Article 3, the Court considers that the applicant’s claim under Article 3 was “arguable” and, thus, Article 13 was applicable in the instant case.", "156. The Court further reiterates that the remedy required by Article 13 must be effective both in law and in practice, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Shamayev and Others, cited above, § 447). The Court is not called upon to review in abstracto the compatibility of the relevant law and practice with the Convention, but to determine whether there was a remedy compatible with Article 13 of the Convention available to grant the applicant appropriate relief as regards his substantive complaint (see, among other authorities, G.H.H. and Others v. Turkey, no. 43258/98, § 34, ECHR 2000-VIII). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant ( Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002 I; and Onoufriou v. Cyprus, no. 24407/04, §§ 119-121, 7 January 2010).", "157. The Court further points out that the scope of the State’s obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (see Shamayev and Others, cited above, § 460; Olaechea Cahuas v. Spain, no. 24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the Netherlands, no. 1948/04, § 154, ECHR 2007 I).", "158. Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II).”", "216. Although the Court found there would have been a violation of Article 3 if the applicant were to be expelled to Libya, it found no violation of Article 13. The Netherlands Government Minister’s decisions to reject the applicant’s asylum request and impose an exclusion order had been reviewed by a court on appeal, and the applicant had not been hindered in challenging those decisions. The disclosure of an intelligence report to a judge in the case had not compromised the independence of the domestic courts in the proceedings and it could not be said that the courts had given less rigorous scrutiny to the applicant’s Article 3 claim. The report itself had not concerned the applicant’s fear of being subjected to ill-treatment in Libya but whether he posed a threat to the Netherlands national security (paragraphs 159 and 160 of the judgment).", "217. The same approach was taken in C.G. and Others v. Bulgaria, no. 1365/07, § 57, 24 April 2008 and Kaushal and Others v. Bulgaria, no. 1537/08, § 36, 2 September 2010, both of which concerned expulsion on grounds of national security. In each case, the applicant alleged the domestic courts had not subjected the executive’s assertion that he presented a national security risk to meaningful scrutiny. The Court, in finding a violation of Article 13 in each case, found:", "“If an expulsion has been ordered by reference to national security considerations, certain procedural restrictions may be needed to ensure that no leakage detrimental to national security occurs, and any independent appeals authority may have to afford a wide margin of appreciation to the executive. However, these limitations can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term ‘national security’. Even where an allegation of a threat to national security has been made, the guarantee of an effective remedy requires as a minimum that the competent appeals authority be informed of the reasons grounding the expulsion decision, even if such reasons are not publicly available. The authority must be competent to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative following security clearance.”", "218. The Court finds that the approach taken in A. v. the Netherlands, C.G. and Others and Kaushal and Others, all cited above, must apply in the present case and, for the following reasons, it considers that there has been no violation of Article 13.", "219. First, the Court does not consider there is any support in these cases (or elsewhere in its case-law) for the applicant’s submission that there is an enhanced requirement for transparency and procedural fairness where assurances are being relied upon; as in all Article 3 cases, independent and rigorous scrutiny is what is required. Furthermore, as C.G. and Others and Kaushal and Others make clear, Article 13 of the Convention cannot be interpreted as placing an absolute bar on domestic courts receiving closed evidence, provided the applicant’s interests are protected at all times before those courts.", "220. Second, the Court has previously found that SIAC is a fully independent court (see A and Others v. the United Kingdom, cited above, § 219). In the present case, just as in any appeal it hears, SIAC was fully informed of the Secretary of State’s national security case against the applicant. It would have been able to quash the deportation order it had been satisfied that the Secretary of State’s case had not been made out. As it was, SIAC found that case to be “well proved”. The reasons for that conclusion are set out at length in its open determination.", "221. Third, while Parliament may not originally have intended for SIAC to consider closed evidence on safety or return, there is no doubt that, as a matter of domestic law, it can do so, provided the closed evidence is disclosed to the special advocates. Moreover, as the Government have observed, SIAC is empowered to conduct a full merits review as to safety of a deportee on return and to quash the deportation order if it considers there is a real risk of ill-treatment.", "222. Fourth, the Court notes that both the applicant and the third party interveners have submitted that involvement of special advocates in SIAC appeals is not sufficient for SIAC to meet the requirements of Article 13. The Court is not persuaded that this is the case. In A and Others v. the United Kingdom, cited above, the Grand Chamber considered the operation of the special advocate system in the context of appeals to SIAC against the Secretary of State’s decision to detain individuals whom she suspected of terrorism and whom she believed to be a risk to national security. The Grand Chamber considered that, in such appeals, the special advocate could not perform his or her function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate (paragraph 220 of the judgment). It was therefore necessary to consider, in each case, whether the nature of the open evidence against each applicant meant he was in a position effectively to challenge the allegations against him (paragraphs 221-224).", "223. There is, however, a critical difference between those appeals and the present case. In A and Others v. the United Kingdom, cited above, the applicants were detained on the basis of allegations made against them by the Secretary of State. In the present case, at least insofar as the issue of the risk of ill-treatment in Jordan was concerned, no case was made against the applicant before SIAC. Instead, he was advancing a claim that there would be a real risk of ill-treatment if he were deported to Jordan. In the Court’s view, there is no evidence that, by receiving closed evidence on that issue, SIAC, assisted by the special advocates, failed to give rigorous scrutiny to the applicant’s claim. Nor is the Court persuaded that, by relying on closed evidence, SIAC ran an unacceptable risk of an incorrect result: to the extent that there was such a risk, it was mitigated by the presence of the special advocates.", "224. Finally, the Court accepts that one of the difficulties of the non ‑ disclosure of evidence is that one can never know for certain what difference disclosure might have made. However, it considers that such a difficulty did not arise in this case. Even assuming that closed evidence was heard as to the United States’ interest in him, the GID’s commitment to respecting the assurances and the Foreign and Commonwealth Office’s negotiation of the MOU, the Court considers that these issues are of a very general nature. There is no reason to suppose that, had the applicant seen this closed evidence, he would have been able to challenge the evidence in a manner that the special advocates could not.", "225. For these reasons, the Court considers that, in respect of the applicant’s Article 13 complaint, SIAC’s procedures satisfied the requirements of Article 13 of the Convention. There has accordingly been no violation of this provision.", "IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION", "226. Under Article 5 of the Convention, the applicant complained first, that, if deported, he would be at real risk of a flagrant denial of his right to liberty as guaranteed by that Article due to the possibility under Jordanian law of incommunicado detention for up to 50 days. Second, also under Article 5, he alleged that he would be denied legal assistance during any such detention. Finally, he alleged that, if convicted at his re-trial, any sentence of imprisonment would be a flagrant breach of Article 5 as it would have been imposed as a result of a flagrant breach of Article 6.", "Article 5, where relevant, provides as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "...", "3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”", "A. The parties’ submissions", "1. The Government", "227. The Government did not accept that Article 5 could be relied in an expulsion case (the Court had doubted that it could be in Tomic v. the United Kingdom (dec.), 17837/03, 14 October 2003). Even if it could, no issue arose in the present case because the applicant would not be detained for a lengthy period before being brought before a court. SIAC had found that it was likely he would be brought before a “judicial authority” within 48 hours, even if this were only a prosecutor with judicial status. The report of Mr Al-Khalili and Mr Najdawi confirmed that the Public Prosecutor was a judicial officer; they had also reported that the 48 hour period in which the police had to notify the legal authorities of any arrest had been reduced to 24 hours (see paragraphs 95 and 96 above). SIAC had also found that extensions of detention up to fifty days were unlikely to be sought (see paragraph 41 above). Both of SIAC’s findings had been upheld by the Court of Appeal and the House of Lords. In the House of Lords, Lord Phillips had also found that 50 days’ detention fell far short of a flagrant breach of Article 5 (see paragraph 58 above) and, although they did not accept that detention for fifty days was likely, the Government relied upon his conclusion.", "228. The Government also stated that the assurance in the MOU that the applicant would be brought promptly before a judge applied not only to any detention prior to re-trial for the offences for which he had been convicted in absentia but to any other period of detention in Jordan. Finally, since they did not accept that the applicant’s retrial would be a flagrant denial of justice, the Government considered that no issue arose under Article 5 in respect of any sentence of imprisonment that might imposed upon the applicant.", "2. The applicant", "229. The applicant submitted that the evidence showed Islamist prisoners were routinely detained incommunicado for up to fifty days, at the order of the Public Prosecutor. Such a period far exceeded the time limits which had been set by the Court ( Brogan and Others v. the United Kingdom, 29 November 1988, §§ 61-62, Series A no. 145 ‑ B; Öcalan, cited above, § 103) and which were acceptable in international law (see paragraph 155 above). It was also contrary to this Court’s case-law and international law for a public prosecutor who had conduct of the investigation to be responsible for determining the legality of continued detention. This was even more so when the Public Prosecutor in Jordanian State Security cases was a military officer. Furthermore, as the MOU did not define what “promptly before a judge” meant, the applicant considered that the only basis for SIAC’s finding that he would be brought before a judicial authority within 48 hours was the evidence of the Foreign and Commonwealth Office witness originally responsible for the MOU, Mr Oakden. However, it was now apparent from the report of Mr Al-Khalili and Mr Najdawi that this evidence was based solely on the understanding that the applicant would be brought before the Public Prosecutor.", "B. Admissibility", "230. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. Does Article 5 apply in an expulsion case?", "231. The Court accepts that, in Tomic, cited above, it doubted whether Article 5 could be relied on in an expulsion case. However, it also recalls that in Babar Ahmad and Others, §§ 100-116, cited above, the applicants complained that if they were extradited to the United States of America and either designated as enemy combatants or subjected to rendition then there would be a real of risk of violations of Articles 3, 5 and 6 of the Convention. The United States Government had given assurances that the applicants would not be so designated and would be tried before federal courts. Before both the domestic courts and this Court, the applicants’ complaints were examined on the premise that they met the criteria for designation as enemy combatants and that, if such a designation were made, there would be a real risk of a violation of Articles 3, 5 and 6 of the Convention. Ultimately, the complaints were rejected as manifestly ill ‑ founded because the assurances given by the United States were sufficient to remove any real risk of designation or rendition. Equally, the Court recalls that, while examining the applicant’s Article 6 complaint in Al-Moayad, cited above, § 101, it found that:", "“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release (references omitted).”", "Given that this observation was made in the context of the applicant’s complaint that he would be detained without trial at Guantánamo Bay, the Court finds that these observations must apply with even greater force to Article 5 of the Convention.", "232. The Court also considers that it would be illogical if an applicant who faced imprisonment in a receiving State after a flagrantly unfair trial could rely on Article 6 to prevent his expulsion to that State but an applicant who faced imprisonment without any trial whatsoever could not rely on Article 5 to prevent his expulsion. Equally, there may well be a situation where an applicant has already been convicted in the receiving State after a flagrantly unfair trial and is to be extradited to that State to serve a sentence of imprisonment. If there were no possibility of those criminal proceedings being reopened on his return, he could not rely on Article 6 because he would not be at risk of a further flagrant denial of justice. It would be unreasonable if that applicant could not then rely on Article 5 to prevent his extradition (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, §§ 51-56, 24 March 2005; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 461-464, ECHR 2004 ‑ VII).", "233. The Court therefore considers that, despite the doubts it expressed in Tomic, it is possible for Article 5 to apply in an expulsion case. Hence, the Court considers that a Contracting State would be in violation of Article 5 if it removed an applicant to a State where he or she was at real risk of a flagrant breach of that Article. However, as with Article 6, a high threshold must apply. A flagrant breach of Article 5 would occur only if, for example, the receiving State arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving State, having previously been convicted after a flagrantly unfair trial.", "2. Would there be a flagrant breach of Article 5 in this case?", "234. The Court finds that the applicant’s second and third complaints under this Article (lack of legal assistance and possible detention after a flagrantly unfair trial) are more appropriately examined under Article 6. Consequently, it is only necessary for it to examine his first complaint (the possibility of incommunicado detention for up to fifty days) under Article 5.", "235. Applying the principles it has set out in paragraph 233 above, the Court finds that there would be no real risk of a flagrant breach of Article 5 in respect of the applicant’s pre-trial detention in Jordan. The Court has serious doubts as to whether a Public Prosecutor, a GID officer who is directly responsible for the prosecution, and whose offices are in the GID’s building, could properly be considered to be “judge or other officer authorised by law to exercise judicial power” (see, for instance, Medvedyev and Others v. France [GC], no. 3394/03, § 124, ECHR 2010 ‑ ...; and Kulomin v. Hungary cited at paragraph 155 above). Accordingly, little weight can be attached to the fact that, pursuant to the amendments to the Jordanian Code of Criminal Procedure, the applicant would be brought before the Public Prosecutor within twenty-four hours (see Mr Al-Khalila and Mr Najdawi’s report at paragraph 96 above). However, Jordan clearly intends to bring the applicant to trial and must do so within fifty days’ of his being detained. The Court agrees with Lord Phillips that fifty days’ detention falls far short of the length of detention required for a flagrant breach of Article 5 and, consequently, there would be no violation of this Article if the applicant were deported to Jordan.", "V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "236. Under Article 6 of the Convention, the applicant further complained he would be at real risk of a flagrant denial of justice if retried in Jordan for either of the offences for which he has been convicted in absentia.", "Article 6, where relevant, provides as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. The parties’ submissions", "1. Government", "237. The Government submitted that the Court should adopt the House of Lords’ approach and find that Article 6 would only be engaged in the extraterritorial context when an unfair trial in the receiving State would have serious consequences for the applicant. They accepted, however, that in the present case there would be serious consequences for the applicant if convicted and therefore accepted that the “flagrant denial of justice” test applied.", "238. The Government further submitted that “flagrant denial” had to be interpreted to mean a breach “so fundamental to amount to a nullification, or destruction of the very essence, of the right guaranteed” (see the dissenting opinion in Mamatkulov and Askarov, cited above). In the Government’s submission, this was a stringent test, which would only be satisfied in very exceptional cases. Moreover, substantial reasons were required for showing that a flagrant denial of justice would occur.", "239. The Government adopted the reasoning of SIAC and the House of Lords that the flagrant denial of justice test had not been met in the present case. They accepted that there was a lack of structural independence in the State Security Court but that was remedied by appeal to the Court of Cassation. There was nothing in principle or in the Court’s case-law that a court’s lack of structural independence automatically meant there would a flagrant denial of justice; an assessment was always needed of the extent of any unfairness and that could only be done on a wider basis than looking simply at a lack of structural independence. Accordingly, little weight should be attached to international criticism of the State Security Court or international materials on the trial of civilians by military courts.", "240. The same was true for a lack of legal assistance pre-trial: Article 6 conferred no absolute right to have such assistance. It was clear from the findings of SIAC that the Jordanian authorities proceed with caution in the applicant’s case and would be acutely aware that the applicant’s retrial would be closely monitored. For instance, the Jordanian courts were unlikely to rely on anything the applicant had said during GID questioning that was not repeated before the Public Prosecutor; Jordanian law only permitted the absence of a lawyer before the Public Prosecutor for good reason (see the report of Mr Al-Khalila and Mr Najdawi at paragraph 97 above).", "241. The Government accepted that the admission of evidence obtained by torture of the defendant would render that defendant’s trial unfair. However, the same proposition did not apply to evidence obtained by ill ‑ treatment that did not amount to torture: even in a “domestic” context a distinction had been drawn by the Court between unfairness as a result of evidence obtained by torture and evidence obtained by other forms of ill ‑ treatment. When ill-treatment did not reach the threshold of torture, there was a discretion as to whether the evidence obtained by that ill-treatment could be used at trial ( Jalloh v. Germany [GC], no. 54810/00, §§ 99, 106 ‑ 107, ECHR 2006 ‑ IX). Moreover, in distinguishing between torture and other forms of ill-treatment, the Court applied the high standard set out in Article 1 of UNCAT (see paragraph 125 above). In the present case, SIAC had not found that the evidence against the applicant had been obtained by torture, but only that there was a real risk that it had been obtained by ill ‑ treatment contrary to Article 3. Accordingly, there was no basis for concluding that the use of that evidence would automatically be a flagrant denial of justice.", "242. The Government also submitted that a high standard of proof should apply when, in the extra-territorial context, the applicant alleged that evidence obtained by torture or ill-treatment would be used at a trial in the receiving State. The Government observed that the United Kingdom courts would admit evidence where there is a real risk that it has been obtained by torture, provided that it was not established on the balance of probabilities that it has been so obtained (the House of Lords’ judgment in A and others (no. 2 ) see paragraphs 136 and 137 above). Given, therefore, that the evidence in the present case could be lawfully and fairly admitted in the United Kingdom, it would be illogical that deportation from the United Kingdom could be prevented on those grounds. The Government therefore submitted a real risk that the evidence had been obtained by torture or other ill-treatment did not suffice. Instead, a flagrant denial of justice could not arise unless it was established on a balance of probabilities or beyond reasonable doubt that evidence had been obtained by torture. This standard of proof was consistent with the standard applied by the Court in “domestic” Article 3 and Article 6 cases; with Article 15 of UNCAT; and with re: El Motassadeq, the judgment of the Düsseldorf Court of Appeal, Singh, and Mahjoub (see, respectively, paragraphs 129, 133, 135, 139 and 140, and 153 above) The applicant had not so established in his case: the further evidence he relied on added nothing to the evidence which had been before SIAC and was, in any event, contradicted by Mr Al-Khalila and Mr Najdawi. Furthermore, Mamatkulov and Askarov, cited above, showed that general reports that torture evidence was routinely admitted in a receiving State was not sufficient to establish that a particular applicant would suffer a flagrant denial of justice. More direct evidence was required.", "243. The Government considered that the applicant’s argument that there was a duty to investigate allegations of torture was not relevant: Jordan was not a Convention Contracting State so there was no positive obligation on Jordan to investigate breaches of Article 3 of the Convention. Similarly, although it was difficult for a Jordanian defendant to show that a confession made to the Public Prosecutor was not voluntary (because the burden of proof was on him and not the Prosecutor), SIAC had found it was acceptable for Jordanian law to proceed this way. It had also found that a Jordanian court’s decision which applied that burden of proof would not be manifestly unreasonable or arbitrary and thus no flagrant denial of justice would arise.", "244. Finally, the Government submitted that no special test should apply to evidence obtained by torture or other ill-treatment of third parties than to any other factor which may render a trial unfair. Even if it did, when there was nothing more than a real risk that evidence had been obtained by ill ‑ treatment, the admission of that evidence at trial would not amount to a complete nullification of the right to a fair trial.", "245. The Government therefore submitted that these three factors (lack of independence, lack of legal assistance and risk of admission of torture evidence), even taken cumulatively, would not amount to a flagrant denial of justice.", "2. The applicant", "246. Unlike the Government, the applicant did not regard the imposition of a long term of imprisonment as a prerequisite for a finding of a flagrant denial of justice, rather the risk of a long term of imprisonment was an aggravating feature of unfairness.", "247. The applicant submitted that the flagrant denial of justice test is qualitative not quantitative. “Flagrant” meant “nullifies the very essence of the right” but did not require the right to be completely nullified. It also meant the unfairness had to be manifest and predictable.", "248. The applicant submitted that a flagrant denial of justice would occur at his re-trial if the following factors were considered cumulatively: (i) that the State Security Court was a military court, aided by a military prosecutor; (ii) that he was a notorious civilian terrorist suspect; (iii) that the case against him was based decisively on confessions when there was a very real risk that those confessions had been obtained by torture or other ill ‑ treatment by military agents; and (iv) that the State Security Court would not investigate properly whether the confessions had been obtained by torture or ill-treatment.", "249. In respect of the military composition of the State Security Court, the applicant relied first, on the Human Rights Committee’s condemnation of the practice of trying civilians before military courts (see paragraphs 157–159 above). Second, he relied on specific international criticism of Jordan’s State Security Court. This criticism centred on: the possibility of extended periods of incommunicado detention without judicial review (at the instance of the Public Prosecutor, a military officer); the State Security Court’s failure to investigate properly allegations of torture; and the court’s lack of independence and impartiality. The applicant also relied on the unfairness of Jordanian rules of evidence relating to confessions. Even on the evidence of Mr Al-Khalila and Mr Najdawi, it appeared that the Court of Cassation had taken the approach that, once a confession was repeated before the Public Prosecutor, it was for the defendant to prove that the Prosecutor was complicit in obtaining it involuntarily. If the defendant did not so prove, the confession was admissible regardless of any prior misconduct by the GID.", "250. In this context, he submitted that the State Security Court in Jordan was even more open to question than the Turkish State Security Court considered in Ergin (no. 6), cited above. Both Al-Moayad, cited above and Drozd and Janousek v. France and Spain, 26 June 1992, Series A no. 240 suggested that trial by a military court would, in itself, amount to a flagrant breach of Article 6.", "251. In respect of his complaint regarding the possible admission of evidence obtained by torture, the applicant relied on the further evidence he had obtained (summarised at paragraphs 102–105 above), which showed that: (i) the confessions of Al-Hamasher and Abu Hawsher were the predominant basis for his convictions at the original trials; and (ii) these men and some of the other defendants at each trial had been held incommunicado, without legal assistance and tortured. The applicant maintained that Ms Refahi’s evidence was correct: the use of a fingerprint on a statement was a clear sign of a false confession (see paragraph 104 above). A fingerprint was not simply, as Mr Al-Khalili and Mr Najdawi suggested, a sign that the maker of a statement was illiterate, least of all when, in Abu Hawsher’s case, the case against him was that he had been reading the applicant’s books.", "252. The applicant also submitted that any possible distinction between torture and ill-treatment (either in international law or in the Convention) was immaterial for two reasons. First, his allegation was that Al-Hamasher and Abu Hamsher’s ill-treatment was so severe as to amount to torture. Second, there was a breach of Article 6 whenever ill-treatment was inflicted in order to secure a confession and it was clear that Al-Hamasher and Abu Hamsher had been ill-treated for that reason.", "253. The use of torture evidence was a flagrant denial of justice. The prohibition on the use of torture evidence was, in the applicant’s submission, part of the established international machinery through which the ius cogens prohibition on torture was expressed. This prohibition was enshrined in Article 15 of UNCAT and the case-law of this Court. The exclusionary rule in Article 15 had to be read in conjunction with Article 12 of the UNCAT, which imposed a duty to investigate wherever there was reasonable ground to believe that an act of torture has been committed. It was clear from the reports of United Nations bodies and NGOs (summarised at paragraphs 106–124 above) that the Jordanian Public Prosecutor failed properly to investigate torture allegations and, indeed, had not done so when those allegations were made at the applicant’s in absentia trials. Therefore, while he accepted he had not demonstrated on the balance of probabilities that evidence was obtained in his case by torture, he had demonstrated beyond a reasonable doubt that Jordan would not investigate the allegations which had been made in his case.", "254. It was incorrect for the Government to suggest that Jordanian law was consistent with English law as to the standard of proof to be applied; the English law will not admit evidence in criminal proceedings until the prosecution can prove that the evidence was not obtained by torture (see Mushtaq at paragraph 138 above). Moreover, the view of the majority of House of Lords in A and others (no. 2) (see paragraph 136 and 137 above) was premised on the assumption that, in the United Kingdom, an independent court, SIAC, would conscientiously investigate any allegations that evidence had been obtained by torture. This assumption did not hold true for the Jordanian State Security Court. Before the State Security Court, the burden of proof fell on the defendant to prove a confession had been obtained by torture. This was unfair because it was not accompanied by some of the most basic protections against ill-treatment such as recording of questioning, limited periods of detention and access to lawyers or doctors.", "255. Consequently, for these reasons, it was unfair to expect him to prove either beyond a reasonable doubt or on the balance of probabilities that the key witnesses in his case had been tortured.", "256. In respect of the conclusions of the domestic courts, the applicant submitted that the Court of Appeal had taken the correct approach by looking at the applicant’s case in the round and had correctly compared the real risk that the confessions had been obtained by torture against the “litany of lack of basic protections” in Jordanian criminal procedure. By contrast, the House of Lords had erred by focusing only on the risk that the evidence had been obtained by torture and had not done justice to the combination of procedural defects that the applicant relied upon. The House of Lords was not correct to rely on Mamatkulov and Askarov, cited above. The Grand Chamber’s assessment in that case was coloured by the Article 34 issue in the case, the material before it was not as specific and detailed as in his case, and there was not the same accumulation of factors as in his case.", "B. Admissibility", "257. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. General principles", "a. The “flagrant denial of justice” test", "258. It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010 ‑ ...).", "259. In the Court’s case-law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein ( Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006 ‑ II; Stoichkov, cited above, § 56, Drozd and Janousek cited above, § 110). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:", "- conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge ( Einhorn, cited above, § 33; Sejdovic, cited above, § 84; Stoichkov, cited above, § 56);", "- a trial which is summary in nature and conducted with a total disregard for the rights of the defence ( Bader and Kanbor, cited above, § 47);", "- detention without any access to an independent and impartial tribunal to have the legality the detention reviewed ( Al-Moayad, cited above, § 101);", "- deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.).", "260. It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court’s view that “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.", "261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy, cited above § 129).", "262. Finally, given the facts of the present case, the Court does not consider it necessary to determine whether a flagrant denial of justice only arises when the trial in question would have serious consequences for the applicant. It is common ground in the present case that the sentences which have already been passed on the applicant in absentia, and to which he would be exposed on any retrial, are substantial terms of imprisonment.", "b. Does the admission of evidence obtained by torture amount to a flagrant denial of justice?", "263. The Court agrees with the Court of Appeal that the central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial. Accordingly, it is appropriate to consider at the outset whether the use at trial of evidence obtained by torture would amount to a flagrant denial of justice. In common with the Court of Appeal (see paragraph 51 above), the Court considers that it would.", "264. International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.", "It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.", "There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable ( Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture.", "More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.", "265. These reasons underscore the primacy given to the prohibition on torture evidence in the Convention system and international law. For the Convention system, in its recent judgment in Gäfgen v. Germany [GC], no. 22978/05, §§ 165-167, ECHR 2010 ‑ ..., the Court reiterated that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. It observed:", "“The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction.", "Accordingly, the Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction.", "As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value (references omitted)”.", "Gäfgen reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms what the Court of Appeal in the present case had already appreciated: in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental. Gäfgen also confirms the Court of Appeal’s view that there is a crucial difference between a breach of Article 6 because of the admission of torture evidence and breaches of Article 6 that are based simply on defects in the trial process or in the composition of the trial court (see paragraph 45–49 of the Court of Appeal’s judgment, quoted at paragraph 51 above).", "266. Strong support for that view is found in international law. Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture. There are few international treaties which command as widespread support as UNCAT. One hundred and forty-nine States are party to its provisions, including all Member States of the Council of Europe (see paragraph 125 above). UNCAT reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice. Foremost among UNCAT’s provisions is Article 15, which prohibits, in near absolute terms, the admission of torture evidence. It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings ( P.E. v. France; G.K. v. Switzerland; and Irastorza Dorronsoro : see paragraphs 130 and 132 above). P.E. and G.K. also show that Article 15 applies to “any statement” which is established to have been made as a result of torture, not only those made by the accused (see also, in this respect Harutyunyan v. Armenia, no. 36549/03, § 59, ECHR 2007 ‑ VIII and Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51, quoted in Gäfgen, cited above, § 74). Indeed, the only exception to the prohibition that Article 15 allows is in proceedings against a person accused of torture.", "267. For the foregoing reasons, the Court considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial. The Court does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture. However, on the facts of the present case (see paragraphs 269–271 below), it is not necessary to decide this question.", "2. The applicant’s case", "268. The applicant has alleged that his retrial would amount to a flagrant denial of justice because of a number of factors, including the absence of a lawyer during interrogation, his notoriety and the composition of the State Security Court (see paragraph 248 above). However, as the Court has observed, the central issue in the case is the admission of torture evidence. Accordingly, it will first examine this complaint.", "a. Evidence obtained by torture", "269. The incriminating statements against the applicant were made by Al-Hamasher in the Reform and Challenge Trial and Abu Hawsher in the millennium conspiracy trial (see paragraphs 9 –20 above). SIAC found that there was at least a very real risk that these incriminating statements were obtained as a result of treatment by the GID which breached Article 3; it may or may not have amounted to torture (see paragraph 420 of its determination, quoted at paragraph 45 above).", "270. It is unclear from its determination why SIAC felt unable to reach a clear conclusion as to whether the ill-treatment amounted to torture. The precise allegation made by Abu Hawsher is that he was beaten on the soles of his feet to the stage where the skin fell off every time he bathed (see paragraph 103 above). The scarring on Al-Hamasher is consistent with the same form of ill-treatment (see paragraph 102 above). The purposes of that ill-treatment, if it occurred, could only have been to obtain information or confessions from them. Moreover, beating on the soles of the feet, more commonly known as bastinado, falanga or falaka, is a practice which has been considered by the Court. Its infliction causes severe pain and suffering to the victim and, when its purpose has been to punish or to obtain a confession, the Court has had no hesitation in characterising it as torture (see, among many authorities, Salman v. Turkey [GC], no. 21986/93, §§ 114 and 115, ECHR 2000 ‑ VII; Valeriu and Nicolae Roşca v. Moldova, no. 41704/02, § 64, 20 October 2009 and further references therein; Diri v. Turkey, no. 68351/01, §§ 42–46, 31 July 2007; Mammadov v. Azerbaijan, no. 34445/04, §§ 68 and 69, 11 January 2007). Consequently, there is every reason to conclude that, if Abu Hawsher and Al-Hamasher were ill-treated in the way they allege, their ill-treatment amounted to torture.", "271. This conclusion means the remaining two issues which the Court must consider are: (i) whether a real risk of the admission of torture evidence is sufficient; and (ii) if so, whether a flagrant denial of justice would arise in this case.", "i. Does a real risk of the admission of torture evidence suffice?", "272. In determining this question, the Court would begin by noting that the evidence before it that Abu Hawsher and Al-Hamasher were tortured is even more compelling than at the time of SIAC’s determination. The report of Mr Al-Khalili and Mr Najdawi is, for the most part, balanced and objective. It frankly assesses the strengths and weaknesses of the Jordanian State Security Court system and recognises the GID’s attempts to extract confessions from suspects. However, the main weakness in the report is that its authors do not examine for themselves the allegations of torture which were made by the applicant’s co-defendants; the report merely records the conclusions of the State Security Court at each trial that the co-defendants were not tortured. Ms Refahi, on the other hand, travelled twice to Jordan to interview the lawyers and defendants at the original trials. Her two statements give detailed accounts of her interviews and record, in clear and specific terms, the allegations of torture made by the defendants. There is every reason to prefer her evidence on this point to the more generalised conclusions of Mr Al-Khalili and Mr Najdawi. Furthermore, in the millennium conspiracy trial, some corroboration for Abu Hawsher’s allegations must be found in Amnesty International’s report of 2006 which sets out its findings that four of the defendants, including Abu Hawsher were tortured. The allegations of ill-treatment of one co-defendant, Ra ‑ ed Hijazi are particularly convincing, not least because several witnesses were reported to have seen him propped up by two guards at the crime scene reconstruction and, as recorded in Ms Peirce’s statement, his treatment appears to have been the subject of a diplomatic protest by the United States (see paragraphs 103 and 114 above). Finally, some reliance must be placed on the fact that torture is widespread and routine in Jordan. If anything, it was worse when the applicant’s co-defendants were detained and interrogated. The systemic nature of torture by the GID (both then and now) can only provide further corroboration for the specific and detailed allegations which were made by Abu Hawsher and Al-Hamasher.", "273. However, even accepting that there is still only a real risk that the evidence against the applicant was obtained by torture, for the following reasons, the Court considers it would be unfair to impose any higher burden of proof on him.", "274. First, the Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A. and Others (no. 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A and others (no. 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A and others (no. 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings (see, section 76(2) of the Police and Criminal Evidence Act 1984 and R. v Mushtaq, paragraph 138 above).", "275. Second, the Court does not consider that the Canadian and German case-law, which has been submitted by the Government (see paragraphs 133, 135, 139 and 140, and 153 above), provides any support for their position. In Singh, the parties agreed that the allegations had to be proved on a balance of probabilities; the standard of proof was not the subject of argument in that case. Mahjoub, a national security case involving material not disclosed to the appellant, followed the approach taken by the House of Lords in A and others (no. 2), an approach which the Court has found to be inappropriate in the present case. In re El Motassadeq, the Hamburg Court of Appeal was only able to consider reports of a general nature alleging the United States authorities had tortured terrorist suspects and, in any event, drew “neither incriminating nor exonerating conclusions” from evidence in question (see El Motassadeq v. Germany, cited above). In addition, it does not appear that the issue of the standard of proof which was applied by the Hamburg Court of Appeal was pursued on appeal to the Federal Court of Justice or Constitutional Court and it did not form part of El Motassadeq’s complaints to this Court. Finally, it is clear from the Düsseldorf Court of Appeal’s reasoning that it did not apply a balance of probabilities test to the requested person’s allegations. Instead, it sufficed that there was a real risk ( konkrete Gefahr ) that Turkey would not respect Article 15 of UNCAT; that there was reasonable evidence ( begründete Anhaltspunkte ) that the statements made by the co-defendants had been obtained by torture; and that there was a risk, substantiated by concrete evidence ( durch konkrete Indizien belegte Gefahr ), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey.", "276. Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.", "277. The Jordanian State Security Court system is a case in point. Not only is torture widespread in Jordan, so too is the use of torture evidence by its courts. In its conclusions on Article 15 of UNCAT, the Committee Against Torture expressed its concern at reports that the use of forced confessions in courts was widespread (see paragraph 107 above). The Special Rapporteur has described a system where the “presumption of innocence is illusory” and “primacy is placed on obtaining confessions” (see paragraph 110 above). The reports of Amnesty International and Human Rights Watch support this view. Amnesty International has considered the State Security Court to be “largely supine” in the face of torture allegations, despite, in the ten years prior to 2005, one hundred defendants alleging before the State Security Court that they had been tortured into making confessions and similar allegations being made in fourteen such cases in 2005 alone (see paragraph 113 above). Human Rights Watch’s 2006 Report depicts a system in which detainees are shuttled back and forth between GID officials and the Public Prosecutor until confessions are obtained in an acceptable form (see paragraph 116 above). Finally, the NCHR has, in successive reports, expressed its own concerns about the manner in which statements obtained by coercion become evidence in Jordanian courts (see paragraphs 121 and 122 above).", "278. The Court recognises that Jordanian law provides a number of guarantees to defendants in State Security Court cases. The use of evidence obtained by torture is prohibited. The burden is on the prosecution to establish that confessions made to the GID have not been procured by the use of torture and it is only in relation to confessions made before the Public Prosecutor that the burden of proof of torture is imposed on the defendant. However, in the light of the evidence summarised in the preceding paragraph, the Court is unconvinced that these legal guarantees have any real practical value. For instance, if a defendant fails to prove that the prosecution was implicated in obtaining an involuntary confession, that confession is admissible under Jordanian law regardless of any prior acts of ill-treatment or other misconduct by the GID. This is a troubling distinction for Jordanian law to make, given the closeness of the Public Prosecutor and the GID. Furthermore, while the State Security Court may have the power to exclude evidence obtained by torture, it has shown little readiness to use that power. Instead, the thoroughness of investigations by the State Security Court into the allegations of torture is at best questionable. The lack of independence of the State Security Court assumes considerable importance in this respect. As SIAC observed (at paragraph 447 of its determination, quoted at paragraph 46 above) the background to the judges of the State Security Court:", "“[M]ay well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.”", "279. Thus, while, on any retrial of the applicant, it would undoubtedly be open to him to challenge the admissibility of Abu Hawsher and Al ‑ Hamasher’s statements and to call evidence to support this, the difficulties confronting him in trying to do so many years after the event and before the same court which has already rejected such a claim (and routinely rejects all such claims) are very substantial indeed.", "280. Therefore, the Court considers that, given the absence of clear evidence of a proper and effective examination of Abu Hawsher and Al ‑ Hamasher’s allegations by the State Security Court, the applicant has discharged the burden that could be fairly imposed on him of establishing the evidence against him was obtained by torture.", "ii. Would there be a flagrant denial of justice in this case?", "281. SIAC found that there was a high probability that Abu Hawsher and Al-Hamasher’s evidence incriminating the applicant would be admitted at the retrial and that this evidence would be of considerable, perhaps decisive, importance against him (see paragraph 45 above). The Court agrees with these conclusions.", "282. The Court has found that a flagrant denial of justice will arise when evidence obtained by torture is admitted in criminal proceedings. The applicant has demonstrated that there is a real risk that Abu Hawsher and Al-Hamasher were tortured into providing evidence against him and the Court has found that no higher burden of proof can fairly be imposed upon him. Having regard to these conclusions, the Court, in agreement with the Court of Appeal, finds that there is a real risk that the applicant’s retrial would amount to a flagrant denial of justice.", "283. The Court would add that it is conscious that the Grand Chamber did not find that the test had been met in Mamatkulov and Askarov, a factor which was of some importance to the House of Lords’ conclusion that there would be no flagrant breach in the present case.", "284. However, as the applicant has submitted, the focus of the Grand Chamber’s judgment in the Mamatkulov and Askarov case was on the binding effect of Rule 39 indications rather than on the substantive issues raised in that case under Article 6. Second, the complaint made by the applicants in that case of a violation of Article 6 was of a general and unspecific nature, the applicants alleging that at the time of their extradition they had no prospect of receiving a fair trial in Uzbekistan. Third, the Court found that, though in the light of the information available at the time of the applicants’ extradition, there may have been reasons for doubting that they would receive a fair trial in Uzbekistan, there was not sufficient evidence to show that any irregularities in the trial were liable to constitute a flagrant denial of justice; the fact that Court had been prevented from obtaining additional information to assist it in its assessment of whether there was such a real risk by Turkey ‘s failure to comply with Rule 39 was seen by the Court as a matter to be examined with respect to the complaint under Article 34 of the Convention.", "285. In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.", "b. The applicant’s remaining Article 6 complaints", "286. The Court considers that the foregoing conclusion makes it unnecessary (save as above) to examine the applicant’s complaints relating to the absence of a lawyer in interrogation, the prejudicial consequences of his notoriety, the composition of the State Security Court, and the aggravating nature of the length of sentence he would face if convicted.", "c. Overall conclusion on Article 6", "287. The Court finds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "288. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "289. The applicant did not submit a claim for just satisfaction.", "VII. RULE 39 OF THE RULES OF COURT", "290. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "291. It considers that the indications made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Personal circumstances", "9. The applicant is an Iranian citizen, born in 1966, and lives in Viborg, Denmark.", "10. In 1986 the applicant commenced his military training in Iran. It is not clear whether he participated directly in the war between Iran and Iraq. On 25 April 1987 he deserted and fled to Turkey, where he arrived on 5 May 1987. It appears that the applicant stayed for some time in Turkey and then in Greece.", "11. He arrived in Denmark on 20 August 1989 and applied for asylum. Pursuant to the practice of the Danish immigration authorities at that time, all asylum-seekers from Iran who, due to desertion from the army, had left their home country before the armistice between Iran and Iraq in the summer of 1988 were granted a residence permit. Accordingly, on 12 October 1990 the applicant was granted a residence and work permit. On 25 August 1994 the residence permit became permanent.", "12. In 1992 the applicant met a Danish woman, A, with whom he cohabited. A daughter was born out of the relationship on 16 October 1996. The applicant and A got married on 23 September 1997 and had another child, a son, born on 20 April 2001. A also has a daughter born in 1989 from a previous relationship, who lives with A and the applicant, and with whom the applicant has a very close relationship. All three children have been raised pursuant to Danish traditions.", "13. It appears that the applicant's family broke off all relations with him in 1987 due to his desertion from the army.", "14. In Denmark the applicant had been making a living as the owner of a pizzeria until the end of 1996. Since May 2000 he had been receiving welfare benefits and was at the same time assigned job training by the municipality with the possibility of continuing employment. A works at a retirement home.", "B. Proceedings before the domestic authorities", "15. On 17 December 1996 the applicant was arrested and detained on remand, charged with drug trafficking allegedly committed during 1996. By judgment of 1 October 1997 the City Court of Hobro ( retten i Hobro ) found him guilty, inter alia, of drug trafficking with regard to at least 450 grams of heroine contrary to Article 191 of the Criminal Code. He was sentenced to three years' imprisonment and, pursuant to sections 22 and 26 of the Aliens Act, was expelled from Denmark with a life-long ban on his return.", "The applicant appealed against the judgment but withdrew the appeal in November 1997, whereupon the City Court judgment acquired legal force.", "16. On 14 July 1998, pursuant to section 50 of the Aliens Act, the applicant instituted proceedings in the City Court of Hobro claiming that material changes in his circumstances had occurred on account of which he requested the court to review the expulsion order. He referred to his family situation and alleged, with reference to information obtained from Amnesty International, that it could not be ruled out that he would risk severe punishment in Iran for having deserted from the army and also perhaps receive a life sentence for the narcotics crimes committed in Denmark.", "On 11 September 1998 the City Court rejected the applicant's request, as it did not find that the applicant's situation had changed to such an extent that there was any reason to revoke the expulsion order. This decision was upheld by the High Court of Western Denmark ( Vestre Landsret ) on 9 October 1998.", "17. On 17 December 1998 the applicant had served two-thirds of his sentence and was due to be released on parole. Since he did not consent to the deportation and refused to leave the country voluntarily, he was detained as from that date in accordance with the Aliens Act with a view to being repatriated. Also in accordance with the Aliens Act, the applicant availed himself of the possibility, prior to the enforcement of a deportation, to bring before the immigration authorities ( Udlændingestyrelsen ) the question whether he could be returned to Iran, since, pursuant to the Aliens Act, an alien must not be returned to a country in which he or she will risk persecution on the grounds set out in Article 1 A of the Convention of 28 July 1951 concerning the Status of Refugees. The immigration authorities found, on 13 January 1999, that the applicant would not risk persecution in Iran of a kind which could constitute a basis for his remaining in Denmark. The applicant appealed against this decision to the Refugee Board ( Flygtningenævnet ), which on 16 April 1999 requested the Ministry of Foreign Affairs to provide more information on the situation in Iran.", "Having obtained information from several different authorities, on 4 January 2000 the Refugee Board confirmed the immigration authorities' decision.", "18. Subsequently, relying on section 50 of the Aliens Act for the second time, and claiming that material changes in his circumstances had occurred, the applicant requested the City Court of Hobro to reconsider the expulsion decision. The court had the same material at its disposal as the Refugee Board and a number of statements from doctors concerning the applicant's state of health. In addition, A was heard stating inter alia that her daughter from a previous relationship, refuses to move to Iran. By judgment of 14 February 2000 the City Court revoked the decision to expel the applicant.", "On 3 March 2000 the High Court of Western Denmark quashed the above decision and dismissed the applicant's request for reconsideration of the expulsion order since, pursuant to section 50 of the Aliens Act, an expelled alien is entitled to only one judicial review of the question of expulsion. The applicant's application for leave to appeal against this decision was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 5 May 2000.", "The applicant was released from his detention on 11 May 2000.", "On 7 September 2000 the Supreme Court upheld the High Court's decision of 3 March 2000 as it agreed that a request for a review of an expulsion order pursuant to section 50 of the Aliens Act could only be examined once by the courts." ]

[ "II. RELEVANT DOMESTIC LAW", "19. The Aliens Act formerly provided in so far as relevant:", "Section 22", "“An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if:", "...", "(iv) the alien is sentenced to imprisonment or other custodial penalty pursuant to the Euphoriants Act or Articles 191 or 191a of the Criminal Code.”", "Section 26:", "1. “In deciding whether or not to expel the alien, regard must be had not only to the alien's ties with the Danish community, including the duration of his stay in Denmark, but also to the question whether expulsion must be assumed to be particularly burdensome on him, in particular because of:", "(i) the alien's age, health, and other circumstances;", "(ii) the alien's personal or family ties with Danish or foreign nationals living in Denmark;", "(iii) the alien's other ties with Denmark, including whether the alien came to Denmark in his childhood or tender years and therefore spent some or all of his formative years in Denmark;", "(iv) the alien's slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence;", "(v) the risk that the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence; and", "(vi) exposure to outrages, misuse or other harm etc. in the present country causing an alien holding a residence permit pursuant to section 9, subsection 1 (ii) to no longer cohabit at a shared residence with the person permanently resident in Denmark, or the alien's otherwise particularly weak position.", "2. An alien may be expelled pursuant to section 22(iv) unless factors mentioned in subsection 1 above constitute a decisive argument against doing so.”", "Section 50 (1) provides:", "“If expulsion under section 49 (1) has not been enforced, an alien claiming that a material change in his circumstances has occurred, cf. section 26, may demand that the public prosecutor bring before the court the question of revocation of the expulsion order. Such a petition may be submitted not less than six months and no later than two months before the date when enforcement of the expulsion can be expected. If a petition is submitted at a later date, the court may decide to examine the case if it deems it to be excusable that the time-limit has been exceeded.“", "THE LAW", "I. THE GOVERNMENT'S PRELIMINARY OBJECTION", "20. The Government requested that the Court reconsider its decision of 28 June 2001 to declare the current complaint admissible, as in the Government's view the applicant failed to exhaust national remedies, notably by failing to request leave from the Leave to Appeal Board to appeal to the Supreme Court against the High Court's decision of 9 October 1998. Noting the Court's finding that a review pursuant to section 50 of the Aliens Act may be regarded as an adequate and effective remedy, the Government pointed out that such a review can only be carried out once (see the Supreme Court's decision of 7 September 2000). The applicant availed himself of this remedy when the City Court and the High Court rejected his request on 11 September 1998 and 9 October 1998. However, he failed to seek leave to appeal against the latter decision and has therefore not exhausted domestic remedies.", "21. The Court points out that under Rule 55 of the Rules of Court any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the Government in its observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be.", "22. The Government's objection was not raised, as it could have been, when the admissibility of the application was being considered by the Court. Thus, in the Court's view there is estoppel (see, inter alia, Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II and Rehbock v. Slovenia, no. 29462/95, 28 November 2000).", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "23. The applicant complained that if deported he would lose contact with his wife, children and stepdaughter as they cannot be expected to follow him to Iran. He invoked Article 8 of the Convention, which states:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Parties' submissions", "24. The applicant submitted that his wife, his children and the daughter from his wife's previous relationship cannot be expected to go to Iran. His wife is not a Muslim and the daughter from his wife's previous relationship refuses to follow him to Iran. Accordingly, an expulsion would result in the break up of his family life.", "25. The Government submitted that even if the expulsion order interferes with the applicant's family life, it discloses no violation of Article 8 of the Convention. Given the seriousness of the offence which the applicant committed in Denmark the measure of expulsion was called for in the interest of public safety, for the prevention of disorder or crime, and for the protection of the rights and freedoms of others, and was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. The Government drew attention to the fact that the applicant has very strong ties with his country of origin since he was already an adult when he left Iran and had his entire school education in Iran. He masters the local language, he served part of his compulsory military service and he has family there. In comparison, the applicant does not have strong ties with Denmark. At the time the expulsion order was made he had resided for only eight years in Denmark. Moreover, in the Government's view, there is no evidence to prove that the applicant's spouse, the children of the marriage, and the spouse's child of another relationship will not be able to accompany the applicant to Iran.", "B. The Court's assessment", "1. Whether there was an interference with the applicant's right under Article 8 of the Convention", "26. The Court recalls that no right for an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, § 16).", "27. In the present case, the applicant, an Iranian citizen, is married to a Danish citizen with whom at the time when the expulsion order became final he had one child, also holding Danish citizenship. Accordingly, the expulsion order interfered with the applicant's right to respect for his family life within the meaning of Article 8 § 1 of the Convention.", "28. Such interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society”.", "2. Whether the interference was “in accordance with the law”", "29. The Court observes, and this was not in dispute between the parties, that the Danish authorities, when expelling the applicant relied on various provisions of the Aliens Act, especially sections 22 and 26.", "30. The Court is satisfied that the interference was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.", "3. Whether the interference pursued a legitimate aim", "31. When ordering the expulsion of the applicant, the Danish authorities, notably the City Court of Hobro in its judgment of 1 October 1997, considered that the applicant should be expelled on the basis of the serious offence which he had committed and in the interests of public order and security.", "32. The Court is therefore satisfied that the measure was ordered “for the prevention of disorder (and) crime” within the meaning of Article 8 § 2 of the Convention.", "4. Whether the interference was “necessary in a democratic society”", "33. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well ‑ established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, insofar as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see the Dalia v. France judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 91, § 52 and the Mehemi v. France judgment of 26 September 1997, Reports 1997 ‑ VI, p. 1971, § 34).", "34. Accordingly, the Court's task consists in ascertaining whether the decision to expel the applicant in the circumstances struck a fair balance between the relevant interests, namely the applicant's right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other.", "35. In cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the country of origin of the person to be expelled, the guiding principles in order to examine whether the measure was necessary in a democratic society have been established by the Court as follows (see Boultif v. Switzerland, no. 54273/00, § 48, to be published in ECHR-2001).", "In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled; the time elapsed since the offence was committed and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.", "36. The Court has first considered the nature and seriousness of the offence committed. It notes that the applicant arrived in Denmark in 1989 and was subsequently convicted for drug trafficking committed during 1996. In its judgment of 1 October 1997 the City Court of Hobro found the applicant guilty, inter alia, of drug trafficking with regard to at least 450 grams of heroine contrary to Article 191 of the Criminal Code. The expulsion order was therefore based on a serious offence.", "37. In view of the devastating effects drugs have on people's lives, the Court understands why the authorities show great firmness to those who actively contribute to the spread of this scourge (see, inter alia, the Dalia v. France judgment of 19 February 1998, Reports 1998-I, p. 92, §54). In the Court's view, even if the applicant had not previously been convicted, this does not detract from the seriousness and gravity of such a crime (see the Bouchelkia v. France judgment of 29 January 1997, Reports, 1997-I, p. 65, § 51 and Nwosu v. Denmark (dec.), no. 50359/99, 10 July 2001).", "38. As to the applicant's connections with his country of origin, the Court recalls that he left Iran in 1987 when he was twenty-one years old. His mother tongue is Farsi and he had received all his schooling in Iran. Thus, undoubtedly he has ties with Iran. However, on the material before the Court, nothing suggests that the applicant has maintained strong links, if any, with Iran, notably since he lost contact with his family there in 1987.", "39. As to the applicant's ties with Denmark, these are mainly connected with his wife, children and stepdaughter, who are all Danish citizens. The applicant and A got married in September 1997, one week before his conviction by the City Court. However, noting that their relationship commenced in 1992 and that they had their first child in October 1996 the Court has no doubt as to the “ effectiveness” of the couple's family life and it considers that the applicant must be considered to have strong ties with Denmark.", "40. The Court has next examined the possibility of the applicant, his wife and his children establishing family life elsewhere. The Court has considered, first, whether the applicant and his wife and their children could live together in Iran.", "41. The applicant's wife, A, is a Danish national. She has never been to Iran, she does not know Farsi and she is not a Muslim. Besides being married to an Iranian man, she has no ties with the country. In these circumstances the Court accepts even if it is not impossible for the spouse and the applicant's children to live in Iran that it would, nevertheless, cause them obvious and serious difficulties. In addition, the Court recalls that A's daughter from a previous relationship, who has lived with A since her birth in 1989, refuses to move to Iran. Taking this fact into account as well, A cannot, in the Court's opinion, be expected to follow the applicant to Iran.", "42. The question of establishing family life elsewhere must also be examined. In this connection the Court notes that during the period from April 1987 until August 1989 the applicant stayed in Turkey and Greece respectively. Nevertheless, the applicant was apparently residing there illegally and it has not been established that he or A has any attachment to either of those countries. In the Court's opinion there is therefore no indication that both spouses can obtain authorisation to reside lawfully in either of the said countries or in any other country but Iran.", "43. Accordingly, as a consequence of the applicant's permanent exclusion from Denmark the family will be separated, since it is de facto impossible for them to continue their family life outside Denmark.", "44. In the light of the above elements, the Court considers that the expulsion of the applicant to Iran would be disproportionate to the aims pursued. The implementation of the expulsion would accordingly be in breach of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "45. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "46. Following the decision of the Court declaring the application admissible, the Court requested the applicant to submit his claims for just satisfaction. Although the applicant had claimed just satisfaction in his original application, no claims were submitted in response to the Court's invitation.", "47. The Court recalls that it is not required to examine such matters of its own motion and, consequently, finds that it is unnecessary to apply Article 41 in this case (the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 57, §§ 37-38)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976.", "11. Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d ’ État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below).", "12. From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of Châlons ‑ en ‑ Champagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in Berck ‑ sur ‑ Mer, before being moved on 23 June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube.", "13. In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received eighty-seven speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair.", "A. First decision taken under the Law of 22 April 2005 on patients’ rights and end-of-life issues", "14. As Vincent Lambert ’ s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Law of 22 April 2005 on patients ’ rights and end-of-life issues ( the so-called “Leonetti Act” – see paragraph 5 4 below). Rachel Lambert, the patient ’ s wife, was involved in the procedure.", "15. The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient ’ s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013.", "B. Injunction of 11 May 2013", "16. On 9 May 2013 the applicants applied to the urgent-applications judge of the Châlons ‑ en ‑ Champagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom ( référé liberté ) ), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required.", "17. In an order dated 11 May 2013, the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert ’ s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes.", "18. The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required.", "C. Second decision taken under the Leonetti Act", "19. In September 2013 a fresh collective procedure was initiated. Dr Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert ’ s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended - care facility within a nursing home.", "20. Dr Kariger also convened two meetings with the family, on 27 September and 16 November 2013, which were attended by Vincent Lambert ’ s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of continuing it.", "21. On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment.", "22. On completion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 1 3 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a seven ‑ page summary of which was read out to the family, observed in particular that Vincent Lambert ’ s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient ’ s life by continuing his artificial nutrition and hydration amounted to unreasonable obstinacy.", "D. Administrative Court judgment of 16 January 2014", "23. On 13 January 2014 the applicants made a further urgent application to the Châlons ‑ en ‑ Champagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert ’ s nutrition and hydration, and an order for his immediate transfer to a specialised extended - care facility in Oberhausbergen run by the association Amréso ‑ Bethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent Lambert ’ s nephew, intervened in the proceedings as third parties.", "24. The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014, it suspended the implementation of Dr Kariger ’ s decision of 11 January 2014.", "25. The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provisions for individuals to object to potentially life-prolonging treatment, or for a doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, to withdraw that treatment, subject to supervision by the Medical Council, the hospital ’ s ethics committee, where applicable, and the administrative and criminal courts.", "26. The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Leonetti Act and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and which required recourse to invasive techniques to administer them – constituted a form of treatment.", "27. Observing that Dr Kariger ’ s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr Kariger had incorrectly assessed Vincent Lambert ’ s wishes.", "28. The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 1 3 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger ’ s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert ’ s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended-care facility in Oberhausbergen.", "E. Conseil d ’ État ruling of 14 February 2014", "29. In three applications lodged on 31 January 2014, Rachel Lambert, François Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d ’ État. The applicants lodged a cross-appeal, requesting Vincent Lambert ’ s immediate transfer to the specialised extended-care facility. The National Union of Associations of Head Injury and Brain Damage Victims ’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party.", "30. At the hearing on the urgent application held on 6 February 2014, the President of the Judicial Division of the Conseil d ’ État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly.", "31. The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d ’ État, the public rapporteur cited, inter alia, the remarks made by the Minister of Health to the members of the Senate examining the bill known as the “ Leonetti Bill ” :", "“While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.”", "32. The Conseil d ’ État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d ’ État defined in the following terms the role of the urgent ‑ applications judge called upon to rule on the basis of Article L. 521 ‑ 2 of the Administrative Courts Code.", "“Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L. 511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘ plain and obvious ’ test, the necessary measures to protect fundamental freedoms.", "However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient ’ s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgent ‑ applications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article R. 625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court ’ s decision. ”", "33. The Conseil d ’ État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 1110 ‑ 5, L. 1111 ‑ 4 and R. 4127 ‑ 37) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d ’ État stated as follows.", "“It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end - of - life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must in any event preserve the patient ’ s dignity and dispense palliative care.", "Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111 -4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Law of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient ’ s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.”", "34. The Conseil d ’ État went on to find that its task was to satisfy itself, having regard to all the circumstances of the case, that the statutory conditions governing any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert ’ s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient ’ s entire medical file – were to give their opinion on Vincent Lambert ’ s current condition and provide the Conseil d ’ État with all relevant information as to the prospect of any change.", "35. The Conseil d ’ État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows.", "“(i) To describe Mr. Lambert ’ s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital;", "(ii) To express an opinion as to whether the patient ’ s brain damage is irreversible and as to the clinical prognosis;", "(iii) To determine whether the patient is capable of communicating, by whatever means, with those around him;", "(iv) To assess whether there are any signs to suggest at the present time that Mr Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.”", "36. The Conseil d ’ État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr Jean Leonetti, the rapporteur for the Law of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state.", "37. Lastly, the Conseil d ’ État rejected the applicants ’ request for Vincent Lambert to be transferred to a specialised extended-care facility (see paragraph 29 above).", "F. Expert medical report and general observations", "1. Expert medical report", "38. The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 1 3 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014, they met all the parties ( the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert.", "39. On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d ’ État.", "( a) Vincent Lambert ’ s clinical condition and how it had changed", "40. The experts found that Vincent Lambert ’ s clinical condition corresponded to a vegetative state, with no signs indicating a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011.", "( b) Irreversible nature of the brain damage and clinical prognosis", "41. The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient ’ s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis.", "( c) Vincent Lambert ’ s capacity to communicate with those around him", "42. In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him.", "( d) Existence of signs suggesting that Vincent Lambert reacted to the care provided, and interpretation of those signs", "43. The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were non ‑ conscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment.", "2. General observations", "44. On 22 and 29 April and 5 May 2014 the Conseil d ’ État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Law of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee.", "The National Medical Council made clear in particular that, in using the expression “ no other effect than to sustain life artificially” in Article L. 1110 ‑ 5 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent.", "Mr Leonetti stressed that the Law of 22 April 2005 was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature had referred in its title to “patients ’ rights and end ‑ of ‑ life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “ no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Law of 22 April 2005 gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified.", "The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Leonetti Act was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state.", "The National Ethics Advisory Committee conducted an in ‑ depth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states, and addressed the ethical issues arising out of such situations. It recommended, in particular, a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation.", "G. Conseil d ’ État judgment of 24 June 2014", "45. A hearing took place on 20 June 2014 before the Conseil d ’ État. In his submissions the public rapporteur stressed, in particular, the following :", "“ ... [ T ]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient ’ s life, but is resolving to withdraw when there is nothing more to be done.”", "The Conseil d ’ État delivered its judgment on 24 June 2014. After granting leave to Marie ‑ Geneviève Lambert, Vincent Lambert ’ s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d ’ État examined in turn the applicants ’ arguments based on the Convention and on domestic law.", "46. On the first point the Conseil d ’ État reiterated that, where the urgent ‑ applications judge was called on to hear an application under Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on the ground of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above).", "47. In the case before it the Conseil d ’ État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention.", "“Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law.", "Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ..., or with those of Article 8 ... ”", "The Conseil d ’ État also rejected the applicants ’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it.", "48. Regarding the application of the relevant provisions of the Public Health Code, the Conseil d ’ État held as follows.", "“Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy.", "In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors – which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis – the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient ’ s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient ’ s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient ... ”", "49. The Conseil d ’ État went on to find that it was its task, in the light of all the circumstances of the case and the evidence produced in the course of the adversarial proceedings before it, in particular the expert medical report, to ascertain whether the decision taken by Dr Kariger on 11 January 2014 had complied with the statutory conditions imposed on any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy.", "50. In that connection the Conseil d ’ État ruled as follows.", "“Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11 January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert ’ s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient ’ s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert ’ s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11 January 2014 was not tainted by any irregularity.", "Secondly, the experts ’ findings indicate that ‘ Mr Lambert ’ s current clinical condition corresponds to a vegetative state ’, with ‘ swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem ’ and ‘ continued ability to breathe unaided ’. The results of the tests carried out from 7 to 11 April 2014 to assess the patient ’ s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert ’ s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘ a deterioration in the [patient ’ s] state of consciousness since that time ’.", "Furthermore, according to the findings set out in the experts ’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘ severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function ’ and ‘ major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness ’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible.", "Furthermore, the experts concluded that ‘ the lengthy period of progression, the patient ’ s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs ’ pointed to a ‘ poor clinical prognosis ’.", "Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘ conscious awareness of suffering ’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive.", "These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr Lambert ’ s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d ’ État subsequent to submission of the experts ’ report do nothing to invalidate the experts ’ conclusions. While it can be seen from the experts ’ report, as just indicated, that Mr Lambert ’ s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision.", "Thirdly, the provisions of the Public Health Code allow account to be taken of a patient ’ s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and her husband, both nurses, had often discussed their respective professional experiences in dealing with patients under resuscitation and those with multiple disabilities, and that Mr Lambert had on several such occasions clearly voiced the wish not to be kept alive artificially if he were to find himself in a highly dependent state. The tenor of those remarks, reported by Mrs Rachel Lambert in precise detail and with the corresponding dates, was confirmed by one of Mr Lambert ’ s brothers. While these remarks were not made in the presence of Mr Lambert ’ s parents, the latter did not claim that their son could not have made them or that he would have expressed wishes to the contrary, and several of Mr Lambert ’ s siblings stated that the remarks concerned were in keeping with their brother ’ s personality, past experience and personal opinions. Accordingly, in stating among the reasons for the decision at issue his certainty that Mr Lambert did not wish, before his accident, to live under such conditions, Dr Kariger cannot be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident.", "Fourthly, the doctor in charge of the patient is required, under the provisions of the Public Health Code, to obtain the views of the patient ’ s family before taking any decision to withdraw treatment. Dr Kariger complied with this requirement in consulting Mr Lambert ’ s wife, parents and siblings in the course of the two meetings referred to earlier. While Mr Lambert ’ s parents and some of his brothers and sisters opposed the discontinuing of treatment, Mr Lambert ’ s wife and his other siblings stated their support for the proposal to withdraw treatment. Dr Kariger took these different opinions into account. In the circumstances of the case, he concluded that the fact that the members of the family were not unanimous as to what decision should be taken did not constitute an impediment to his decision.", "It follows from all the above considerations that the various conditions imposed by the law before any decision can be taken by the doctor in charge of the patient to withdraw treatment which has no effect other than to sustain life artificially, and whose continuation would thus amount to unreasonable obstinacy, may be regarded, in the case of Mr Vincent Lambert and in the light of the adversarial proceedings before the Conseil d ’ État, as having been met. Accordingly, the decision taken by Dr Kariger on 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert cannot be held to be unlawful. ”", "51. Accordingly, the Conseil d ’ État set aside the Administrative Court ’ s judgment and dismissed the applicants ’ claims.", "II. In the cases contemplated in the fifth paragraph of Article L. 1111-4 and the first paragraph of Article L. 1111-13, the decision to limit or withdraw the treatment administered may not be taken unless a collective procedure has first been implemented. The doctor may set the collective procedure in motion on his or her own initiative. He or she shall be required to do so in the light of any advance directives given by the patient and submitted by one of the persons in possession of them mentioned in Article R. 1111-19, or at the request of the person of trust, the family or, failing this, another person close to the patient. The persons in possession of the patient ’ s advance directives, the person of trust, the family or, where appropriate, another person close to the patient shall be informed as soon as the decision has been taken to implement the collective procedure.", "The decision to limit or withdraw treatment shall be taken by the doctor in charge of the patient, after consultation with the care team where this exists, and on the basis of the reasoned opinion of at least one doctor acting as a consultant. There must be no hierarchical link between the doctor in charge of the patient and the consultant. The reasoned opinion of a second consultant shall be sought by these doctors if either of them considers it necessary.", "The decision to limit or withdraw treatment shall take into account any wishes previously expressed by the patient, in particular in the form of advance directives, if drawn up, the views of the person of trust the patient may have designated and those of the family or, failing this, of another person close to the patient. ...", "Reasons shall be given for any decision to limit or withdraw treatment. The opinions received, the nature and tenor of the consultations held within the care team and the reasons for the decision shall be recorded in the patient ’ s file. The person of trust, if one has been designated, the family or, failing this, another person close to the patient, shall be informed of the nature of and the reasons for the decision to limit or withdraw treatment.", "III. Where it has been decided to limit or withdraw treatment under Article L. 1110 ‑ 5 and Article L. 1111-4 or L. 1111-13, in the circumstances provided for in points I and II of the present Article, the doctor, even if the patient ’ s suffering cannot be assessed on account of his or her cerebral state, shall put in place the necessary treatment, in particular pain relief and sedation, to support the patient in accordance with the principles and conditions laid down in Article R. 4127-38. He or she shall also ensure that the persons close to the patient are informed of the situation and receive the support they require.”", "55. Article R. 4127-38 of the Code provides:", "“The doctor must support the dying person until the moment of death, ensure, through appropriate treatment and measures, the quality of life as it nears its end, preserve the patient ’ s dignity, and comfort those close to him or her.", "Doctors do not have the right to take life intentionally .”", "B. Private members ’ bill of 21 January 2015", "56. Two members of Parliament (Mr Leonetti and Mr Claeys) tabled a bill before the National Assembly on 21 January 2015 proposing in particular the following amendments to the Law of 22 April 2005:", "– section 2 of the bill specifies that artificial nutrition and hydration constitute a form of treatment;", "– advance directives are to be binding on the doctor and there will no longer be a time-limit on their validity (they are currently valid for three years), their drafting will be subject to a prescribed procedure and they will be more accessible. Where there are no advance directives, the role of the person of trust is spelled out ( the latter ’ s task is to express the patient ’ s wishes, and his or her testimony takes precedence over any other );", "– the bill expressly acknowledges that every individual has “the right to refuse or not to undergo any treatment” and that the doctor cannot insist on continuing with it (previous wording). Nevertheless, the doctor must continue to provide support to the patient, particularly in the form of palliative care;", "– the right not to suffer is recognised (the doctor must put in place all available pain relief and sedation to deal with suffering in the advanced or terminal stages, even if these may have the effect of shortening the time left to live);", "– the right of patients in the terminal stages to deep, continuous sedation until death is also recognised: the withdrawal of treatment (including artificial nutrition and hydration) must always be accompanied by sedation. Where the patient is incapable of expressing his or her wishes the bill provides – subject to account being taken of the patient ’ s wishes and in accordance with a collective procedure – that the doctor is required to discontinue or withhold treatment which “has no other effect than to sustain life artificially” (in the current wording, the doctor may discontinue such treatment). If these criteria are met, the patient has the right to deep, continuous sedation until death occurs.", "The bill was adopted on 17 March 2015 by the National Assembly and is currently being examined in the Senate.", "C. Administrative Courts Code", "57. Article L. 521 ‑ 2 of the Administrative Courts Code, concerning urgent applications for protection of a fundamental freedom, reads as follows:", "“Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has allegedly been breached in a serious and manifestly unlawful manner by a public - law entity or an organisation governed by private law responsible for managing a public service, in the exercise of their powers. The urgent ‑ applications judge shall rule within forty-eight hours.”", "58. Article R. 625 ‑ 3 of the same Code provides:", "“The bench examining the case may call on any person whose expertise or knowledge might usefully inform its determination of the case to submit general observations on the points in issue.", "The opinion shall be submitted in writing. It shall be communicated to the parties ... ”", "III. COUNCIL OF EUROPE MATERIALS", "A. The Oviedo Convention on Human Rights and Biomedicine", "59. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty ‑ nine of the Council of Europe member States. Its relevant provisions read as follows:", "Article 1 – Purpose and object", "“Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. ... ”", "Article 5 – General rule", "“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.", "The person concerned may freely withdraw consent at any time.”", "Article 6 – Protection of persons not able to consent", "“1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.", "...", "3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.", "The individual concerned shall as far as possible take part in the authorisation procedure.", "4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.", "5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.”", "Article 9 – Previously expressed wishes", "“The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.”", "B. The “ Guide on the decision-making process regarding medical treatment in end-of-life situations ”", "60. This Guide was drawn up by the Committee on Bioethics of the Council of Europe in the course of its work on patients ’ rights and with the intention of facilitating the implementation of the principles enshrined in the Oviedo Convention.", "Its aims are to propose reference points for the implementation of the decision-making process regarding medical treatment in end-of-life situations, to bring together both normative and ethical reference works and elements relating to good medical practice which may be useful to health-care professionals dealing with the implementation of the decision ‑ making process, and to contribute, through the clarification it provides, to the overall discussion on the subject.", "61. The Guide cites as the ethical and legal frames of reference for the decision-making process the principles of autonomy (free, informed and prior consent of the patient), beneficence and non-maleficence, and justice (equitable access to health care). It specifies that doctors must not dispense treatment which is needless or disproportionate in view of the risks and constraints it entails. They must provide patients with treatment that is proportionate and suited to their situation. They also have a duty to take care of their patients, ease their suffering and provide them with support.", "Treatment covers interventions which aim to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have no bearing on the aetiology of the illness but act on the symptoms, or which are responses to an organ dysfunction. Under the heading “Disputed issues”, the Guide states as follows.", "“ The question of limiting, withdrawing or withholding artificial hydration and nutrition", "Food and drink given to patients who are still able to eat and drink themselves are external contributions meeting physiological needs, which should always be satisfied. They are essential elements of care which should be provided unless the patient refuses them.", "Artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes).", "Artificial nutrition and hydration are regarded in a number of countries as forms of treatment, which may therefore be limited or withdrawn in the circumstances and in accordance with the guarantees stipulated for limitation or withdrawal of treatment (refusal of treatment expressed by the patient, refusal of unreasonable obstinacy or disproportionate treatment assessed by the care team and accepted in the framework of a collective procedure). The considerations to be taken into account in this regard are the wishes of the patient and the appropriate nature of the treatment in the situation in question.", "In other countries, however, it is considered that artificial nutrition and hydration do not constitute treatment which can be limited or withdrawn, but a form of care meeting the individual ’ s basic needs, which cannot be withdrawn unless the patient, in the terminal phase of an end-of-life situation, has expressed a wish to that effect.", "The question of the appropriate nature, in medical terms, of artificial nutrition and hydration in the terminal phase is itself a matter of debate. Some take the view that implementing or continuing artificial hydration and nutrition are necessary for the comfort of a patient in an end-of-life situation. For others, the benefit of artificial hydration and nutrition for the patient in the terminal phase, taking into account research in palliative care, is questionable.”", "62. The Guide concerns the decision-making process regarding medical treatment as it applies to end ‑ of ‑ life situations (including its implementation, modification, adaptation, limitation or withdrawal). It does not address the issues of euthanasia or assisted suicide, which some national legislations authorise.", "63. While other parties are involved in the decision-making process, the Guide stresses that the principal party is the patient himself or herself. When the patient cannot or can no longer take part in making decisions, they will be taken by a third party according to the procedures laid down in the relevant national legislation. However, the patient should nonetheless be involved in the decision-making process by means of any previously expressed wishes. The Guide lists the various forms these may take: the patient may have confided his or her intentions orally to a family member, a close friend or a person of trust designated as such; or they may be set down formally, in advance directives or a living will or as powers granted to another person, sometimes referred to as powers of future protection ( mandat de protection future ).", "64. Other persons involved in the decision-making process may include the patient ’ s legal representative or a person granted a power of attorney, family members and close friends, and the carers. The Guide stresses that doctors have a vital, not to say primary, role because of their ability to appraise the patient ’ s situation from a medical viewpoint. Where patients are not, or are no longer, able to express their wishes, doctors are the people who, in the context of the collective decision-making process, having involved all the health-care professionals concerned, will take the clinical decision guided by the best interests of the patient. To this end, they will have taken note of all the relevant elements (consultation of family members, close friends, the person of trust, and so on ) and taken into account any previously expressed wishes. In some systems the decision is taken by a third party, but in all cases doctors are the ones to ensure that the decision-making process is properly conducted.", "65. The Guide reiterates that the patient should always be at the centre of any decision-making process, which takes on a collective dimension when the patient is no longer willing or able to participate in it directly. The Guide identifies three main stages in the decision-making process: an individual stage (each party forms his or her arguments on the basis of the information gathered), a collective stage (the various parties take part in exchanges and discussions) and a concluding stage (when the actual decision is taken).", "66. The Guide points out that sometimes, where positions diverge significantly or the question is highly complex or specific, there may be a need to make provision to consult third parties either to contribute to the debate, to overcome a problem or to resolve a conflict. The consultation of a clinical ethics committee may, for example, be appropriate. At the end of the collective discussion, agreement must be reached. A conclusion must be drawn and validated collectively and then formalised in writing.", "67. If the decision is taken by the doctor, it should be taken on the basis of the conclusions of the collective discussion and be announced, as appropriate, to the patient, the person of trust and/or the entourage of the patient, the care team and the third parties concerned who have taken part in the process. The decision should also be formalised (in the form of a written summary of the reasons) and kept in an identified place.", "68. The Guide highlights the disputed nature of the use of deep sedation in the terminal phase, which may have the effect of shortening the time left to live. Lastly, it suggests an evaluation of the decision-making process after its application.", "C. Committee of Ministers Recommendation", "69. In Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity, the Committee of Ministers recommended to member States that they promote these practices, and defined a number of principles to assist member States in regulating them.", "D. Parliamentary Assembly materials", "70. In Recommendation 1418 (1999) on protection of the human rights and dignity of the terminally ill and the dying, the Parliamentary Assembly recommended to the Committee of Ministers that it encourage the member States to respect and protect the dignity of terminally ill or dying persons in all respects, including their right to self-determination, while taking the necessary measures:", "(i) to ensure that patients ’ advance directives or living wills refusing specific medical treatments are observed, where the patients are no longer able to express their wishes;", "(ii) to ensure that ‑ notwithstanding the physician ’ s ultimate therapeutic responsibility ‑ the wishes they have expressed with regard to particular forms of treatment are taken into account, provided this does not violate their human dignity.", "71. Parliamentary Assembly Resolution 1859 (2012) entitled “ Protecting human rights and dignity by taking into account previously expressed wishes of patients ” reiterates the principles of personal autonomy and consent enshrined in the Oviedo Convention (see paragraph 5 9 above), according to which no one can be compelled to undergo any medical treatment against his or her will. The Resolution lays down guidelines for national parliaments in relation to advance directives, living wills and continuing powers of attorney." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Public Health Code", "52. Under Article L. 1110 ‑ 1 of the Public Health Code (“the Code”), all available means must be used to secure to each individual the fundamental right to protection of health. Article L. 1110 ‑ 2 of the Code provides that the patient has the right to respect for his or her dignity, while Article L. 1110 ‑ 9 guarantees to everyone whose condition requires it the right to palliative care. This is defined in Article L. 1110 ‑ 10 as active and ongoing care intended to relieve pain, ease psychological suffering, preserve the patient ’ s dignity and support those close to him or her.", "53. The Law of 22 April 2005 on patients ’ rights and end ‑ of ‑ life issues, known as the “ Leonetti Act ” after its rapporteur, Mr Jean Leonetti (see paragraph 44 above), amended a number of Articles of the Code.", "The Act was passed following the work of a parliamentary commission chaired by Mr Leonetti and tasked with exploring the full range of end ‑ of ‑ life issues and considering possible legislative or regulatory amendments. In the course of its work the parliamentary commission heard evidence from a great many individuals. It submitted its report on 30 June 2004. The Act was passed unanimously by the National Assembly on 30 November 2004 and by the Senate on 12 April 2005.", "The Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it would demonstrate unreasonable obstinacy (in other words, if it would mean taking it to unreasonable lengths ( acharnement thérapeutique ) ).", "The relevant Articles of the Code, as amended by the Act, read as follows.", "Article L. 1110-5", "“Every individual, regard being had to his or her state of health and the urgency of the treatment required, shall be entitled to receive the most appropriate care and to be given the safest treatment known to medical science at the time to be effective. Preventive or exploratory acts or care must not, as far as medical science can guarantee, subject the patient to disproportionate risks in relation to the anticipated benefits.", "Such acts must not be continued with unreasonable obstinacy. Where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, they may be discontinued or withheld. In such cases, the doctor shall preserve the dignity of the dying patient and ensure his or her quality of life by dispensing the care referred to in Article L. 1110-10 ...", "Everyone shall be entitled to receive care intended to relieve pain. That pain must in all cases be prevented, assessed, taken into account and treated.", "Health - care professionals shall take all the measures available to them to allow each individual to live a life of dignity until his or her death ... ”", "Article L. 1111-4", "“Each individual shall, together with the health - care professional and in the light of the information provided and the recommendations made by the latter, take the decisions concerning his or her own health.", "The doctor must respect the individual ’ s wishes after informing him or her of the consequences of the choices made ...", "No medical act or treatment may be administered without the free and informed consent of the patient, which may be withdrawn at any time.", "Where the individual is unable to express his or her wishes, no intervention or examination may be carried out, except in cases of urgency or impossibility, without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted.", "Where the individual is unable to express his or her wishes, no decision to limit or withdraw treatment, where such a measure would endanger the patient ’ s life, may be taken without the collective procedure defined in the Code of Medical Ethics having been followed and without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted, and without any advance directives issued by the patient having been examined. The decision to limit or withdraw treatment, together with the reasons for it, shall be recorded in the patient ’ s file ... ”", "Article L. 1111-6", "“ All adults may designate a person of trust, who may be a relative, another person close to the adult, or his or her usual doctor, and who will be consulted in the event that the patient is unable to express his or her wishes and to receive the necessary information for that purpose. The designation shall be made in writing and may be revoked at any time. Should the patient so wish, the person of trust may provide support and attend medical consultations with the patient in order to assist him or her in making decisions.", "Whenever he or she is admitted to a health - care establishment, the patient shall be offered the possibility of designating a person of trust in the conditions laid down in the preceding paragraph. The designation shall be valid for the duration of the patient ’ s hospitalisation, unless he or she decides otherwise ... ”", "Article L. 1111-11", "“ All adults may draw up advance directives in case they should become unable to express their wishes. These shall indicate the wishes of the individual concerned as regards the conditions in which treatment may be limited or withdrawn in an end ‑ of ‑ life situation. They may be revoked at any time.", "Provided they were drawn up less than three years before the individual became unconscious, the doctor shall take them into account in any decision to carry out examinations, interventions or treatment in respect of the person concerned ... ”", "54. The collective procedure provided for in the fifth paragraph of Article L. 1111 ‑ 4 of the Code is described in detail in Article R. 4127 ‑ 37, which forms part of the Code of Medical Ethics and reads as follows:", "“I. The doctor shall at all times endeavour to alleviate suffering by the means most appropriate to the patient ’ s condition, and provide moral support. He or she shall refrain from any unreasonable obstinacy in carrying out examinations or treatment and may decide to withhold or discontinue treatment which appears futile or disproportionate or the only purpose or effect of which is to sustain life artificially.", "IV. COMPARATIVE LAW", "A. Legislation and practice in Council of Europe member States", "72. According to the information available to the Court concerning thirty-nine of the forty-seven Council of Europe member States, no consensus exists in practice in favour of authorising the withdrawal of treatment designed only to prolong life artificially. In the majority of countries, treatment may be withdrawn subject to certain conditions. In other countries the legislation prohibits withdrawal or is silent on the subject.", "73. In those countries which permit it, this possibility is provided for either in legislation or in non-binding instruments, most often in a code of medical ethics. In Italy, in the absence of a legal framework, the withdrawal of treatment has been recognised in the courts ’ case-law.", "74. Although the detailed arrangements for the withdrawal of treatment vary from one country to another, there is consensus as to the paramount importance of the patient ’ s wishes in the decision-making process. As the principle of consent to medical care is one of the aspects of the right to respect for private life, States have put in place different procedures to ensure that consent is expressed or to verify its existence.", "75. All the legislation allowing treatment to be withdrawn makes provision for patients to issue advance directives. In the absence of such directives, the decision lies with a third party, whether it be the doctor treating the patient, persons close to the patient or his or her legal representative, or even the courts. In all cases, the involvement of those close to the patient is possible, although the legislation does not choose between them in the event of disagreement. However, some countries operate a hierarchy among persons close to the patient and give priority to the spouse ’ s wishes.", "76. In addition to the requirement to seek the patient ’ s consent, the withdrawal of treatment is also subject to other conditions. Depending on the country, the patient must be dying or be suffering from a condition with serious and irreversible medical consequences, the treatment must no longer be in the patient ’ s best interests, it must be futile, or withdrawal must be preceded by an observation phase of sufficient duration and by a review of the patient ’ s condition.", "B. Observations of the Human Rights Clinic", "77. The Human Rights Clinic, third-party intervener ( see paragraph 8 above ), presented an overview of national legislation and practice concerning active and passive euthanasia and assisted suicide in Europe and America.", "78. The survey concludes that no consensus currently exists among the member States of the Council of Europe, or in the other countries surveyed, regarding the authorisation of assisted suicide or euthanasia.", "79. However, there is consensus on the need for passive euthanasia to be tightly regulated in those countries which permit it. In that connection each country lays down criteria in its legislation for determining the point at which euthanasia may be performed, in the light of the patient ’ s condition and in order to make sure that he or she has consented to the measure. Nevertheless, these criteria vary appreciably from one country to another.", "THE LAW", "I. STANDING TO ACT IN THE NAME AND ON BEHALF OF VINCENT LAMBERT", "80. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. In their view, depriving him of nutrition and hydration would constitute ill-treatment amounting to torture within the meaning of Article 3 of the Convention. They further argued that the lack of physiotherapy since October 2012 and the lack of therapy to restore the swallowing reflex amounted to inhuman and degrading treatment in breach of that provision. Lastly, they submitted that the withdrawal of nutrition and hydration would also infringe Vincent Lambert ’ s physical integrity, in breach of Article 8 of the Convention.", "81. Articles 2, 3 and 8 of the Convention read as follows.", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... ”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The applicants ’ standing to act in the name and on behalf of Vincent Lambert", "1. The parties ’ submissions", "(a) The Government", "82. The Government observed that the applicants had not stated that they wished to act on Vincent Lambert ’ s behalf, and considered the question whether they could apply to the Court on his behalf to be devoid of purpose.", "( b) The applicants", "83. The applicants submitted that any individual, irrespective of his or her disability, should be able to benefit from the guarantees afforded by the Convention, including where he or she had no representative. They stressed that their standing or interest in bringing proceedings had never been challenged before the domestic courts, as French law gave the family of a person whose treatment it was proposed to withdraw the right to express a view on the measure in question. This necessarily entailed standing to act in court proceedings not only on their own behalf but also on behalf of the patient.", "84. Citing the criteria established by the Court in Koch v. Germany (no. 497/09, §§ 43 et seq., 19 July 2012), the applicants submitted that those criteria were satisfied in the present case because the case concerned a matter of general interest and because of their close family ties and their personal interest in the proceedings. They stressed that they had applied to the domestic courts and then to the Court in order to assert Vincent Lambert ’ s fundamental rights under Articles 2 and 3 which he himself was unable to do and which his wife could not either since she had accepted the medical decision in issue.", "( c) The individual third-party interveners", "85. Rachel Lambert, Vincent Lambert ’ s wife, submitted that the applicants did not have standing to act on behalf of Vincent Lambert. She pointed out that the Court had been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to “respect for human rights” and the person concerned, as heir, had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant ’ s own rights. However, in Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000 ‑ XI), the Court had found that the rights asserted by the applicant under Articles 2, 3, 5 and 8 of the Convention belonged to the category of non ‑ transferable rights and had held that the applicant, who was the sister-in-law and legitimate heir of the deceased, could not claim to be the victim of a violation on her late brother ‑ in ‑ law ’ s behalf.", "86. On the issue of representation, she observed that it was essential for representatives to demonstrate that they had received specific and explicit instructions from the alleged victim. This was not the case of the applicants, who had received no specific and explicit instructions from Vincent Lambert, whereas the examination of the case by the Conseil d ’ État had highlighted the fact that she herself had been taken into her husband ’ s confidence and informed of his wishes, as corroborated by statements produced before the domestic courts.", "87. François Lambert and Marie ‑ Geneviève Lambert, Vincent Lambert ’ s nephew and half ‑ sister, submitted that the applicants lacked standing to act on his behalf. Firstly, the violations of Articles 2, 3 and 8 of the Convention alleged by the applicants concerned non ‑ transferable rights to which they could not lay claim on their own behalf; secondly, the applicants were not the legal representatives of Vincent Lambert, who was an adult born in 1976; and, thirdly, their application contravened Vincent Lambert ’ s freedom of conscience and his own right to life and infringed his privacy. François Lambert and Marie ‑ Geneviève Lambert observed that, although the Court had, by way of an exception, accepted that parents might act on behalf and in the place of a victim in arguing a breach of Article 3 of the Convention, this was only in the case of the victim ’ s disappearance or death and in certain specific circumstances. Those conditions were not met in the present case, making the application inadmissible. They argued that the Court had had occasion to reaffirm this inadmissibility in end-of-life cases similar to the present one (they referred to Sanles Sanles, cited above, and Ada Rossi and Others v. Italy (dec.), nos. 55185/08, 55483/08, 55516/08, 55519/08, 56010/08, 56278/08 and 58424/08, 16 December 2008).", "88. Lastly, they argued that the applicants could not in fact “legitimately” challenge the Conseil d ’ État ’ s judgment, since the position they defended was directly opposed to Vincent Lambert ’ s beliefs. The doctors and the judges had taken account of the latter ’ s wishes, which he had confided to his wife – with whom he had had a very close relationship – in full knowledge of the facts, in view of his professional experience as a nurse.", "2. The Court ’ s assessment", "( a) Recapitulation of the principles", "89. In the recent cases of Nencheva and Others v. Bulgaria ( no. 48609/06, 18 June 2013) and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ( [GC], no. 47848/08, ECHR 2014), the Court reiterated the following principles.", "In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. According to the Court ’ s established case - law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act ( see Nencheva and Others, cited above, § 88). The individual concerned must be able to show that he or she was “directly affected” by the measure complained of ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96, with further references ).", "90. An exception is made to this principle where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State. In such cases the Court has recognised the standing of the victim ’ s next-of-kin to submit an application ( see Nencheva and Others, cited above, § 89, and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 98-99, with further references ).", "91. Where the application is not lodged by the victims themselves, Rule 45 § 3 of the Rules of Court requires a written authority to act, duly signed, to be produced. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; Nencheva and Others, cited above, § 83; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 102). However, the Convention institutions have held that special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities. Applications lodged by individuals on behalf of the victim or victims, even though no valid form of authority was presented, have thus been declared admissible ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 103).", "92. Particular consideration has been shown with regard to the victims ’ vulnerability on account of their age, sex or disability, which rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connections between the person lodging the application and the victim (ibid .).", "93. For instance, in S.P., D.P. and A.T. v. the United Kingdom (no. 23715/94, Commission decision of 20 May 1996, unreported ), which concerned, inter alia, Article 8 of the Convention, the Commission declared admissible an application lodged by a solicitor on behalf of children whom he had represented in the domestic proceedings, in which he had been instructed by the guardian ad litem, after noting in particular that their mother had displayed no interest, that the local authorities had been criticised in the application and that there was no conflict of interests between the solicitor and the children.", "In İlhan v. Turkey ([GC], no. 22277/93, §§ 54-55, ECHR 2000 ‑ VII), where the direct victim, Abdüllatif İlhan, had suffered severe injuries as a result of ill-treatment at the hands of the security forces, the Court held that his brother could be regarded as having validly introduced the application, based on Articles 2 and 3 of the Convention, since it was clear from the facts that Abdüllatif İlhan had consented to the proceedings, there was no conflict of interests between himself and his brother, who had been closely concerned with the incident, and he was in a particularly vulnerable position because of his injuries.", "In Y.F. v. Turkey ( no. 24209/94, § 31, ECHR 2003 ‑ IX), in which a husband alleged under Article 8 of the Convention that his wife had been forced to undergo a gynaecological examination following her detention in police custody, the Court found that it was open to the applicant, as a close relative of the victim, to make a complaint concerning allegations by her of violations of the Convention, in particular having regard to her vulnerable position in the special circumstances of the case.", "94. Still in the context of Article 8 of the Convention, the Court has also accepted on several occasions that parents who did not have parental rights could apply to it on behalf of their minor children (see, in particular, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138 ‑ 39, ECHR 2000 ‑ VIII; Šneersone and Kampanella v. Italy, no. 14737/09, § 61, 12 July 2011; Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 146-47, 27 September 2011; A.K. and L. v. Croatia, no. 37956/11, §§ 48-50, 8 January 2013; and Raw and Others v. France, no. 10131/11, §§ 51-52, 7 March 2013). The key criterion for the Court in these cases was the risk that some of the children ’ s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights.", "95. Lastly, the Court recently adopted a similar approach in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, concerning a young man of Roma origin, seriously disabled and HIV positive, who died in hospital before the application was lodged and had no known next-of-kin and no State-appointed representative. In view of the exceptional circumstances of the case and the seriousness of the allegations, the Court recognised that the Centre for Legal Resources had standing to represent Valentin Câmpeanu. The Court emphasised that to find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level ( ibid., § 112).", "( b) Application to the present case", "96. The applicants alleged on Vincent Lambert ’ s behalf a violation of Articles 2, 3 and 8 of the Convention ( see paragraph 80 above ).", "97. The Court considers at the outset that the case-law concerning applications lodged on behalf of deceased persons is not applicable in the present case, since Vincent Lambert is not dead but is in a state described by the expert medical report as vegetative (see paragraph 40 above). The Court must therefore ascertain whether the circumstances before it are of the kind in which it has previously held that an application could be lodged in the name and on behalf of a vulnerable person without him or her having issued either a valid authority to act or instructions to the person purporting to act for him or her ( see paragraphs 93-95 above ).", "98. It notes that none of the cases in which it has accepted, by way of an exception, that an individual may act on behalf of another is comparable to the present case. The case in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, is to be distinguished from the present case in so far as the direct victim was dead and had no one to represent him. In the present case, while the direct victim is unable to express his wishes, several members of his close family wish to express themselves on his behalf, while defending diametrically opposed points of view. The applicants mainly rely on the right to life protected by Article 2, the “sanctity” of which was stressed by the Court in Pretty v. the United Kingdom (no. 2346/02, § 65, ECHR 2002 ‑ III), whereas the individual third ‑ party interveners (Rachel Lambert, François Lambert and Marie ‑ Geneviève Lambert) rely on the right to respect for private life and in particular the right of each individual, encompassed in the notion of personal autonomy ( ibid., § 61), to decide in which way and at which time his or her life should end (ibid. , § 67; see also Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011, and Koch, cited above, § 52).", "99. The applicants propose that the Court should apply the criteria set forth in Koch (cited above, § 44), which, in their submission, they satisfy on account of their close family ties, the fact that they have a sufficient personal or legal interest in the outcome of the proceedings and the fact that they have previously expressed an interest in the case.", "100. However, the Court observes that in Koch, cited above, the applicant argued that his wife ’ s suffering and the circumstances of her death had affected him to the extent of constituting a violation of his own rights under Article 8 of the Convention (§ 43). Thus, it was on that point that the Court was required to rule, and it was against that background that it considered that account should also be taken of the criteria developed in its case-law allowing a relative or heir to bring an action before it on the deceased person ’ s behalf (§ 44).", "101. In the Court ’ s view, these criteria are not applicable in the present case since Vincent Lambert is not dead and the applicants are seeking to raise complaints on his behalf.", "102. A review of the cases in which the Convention institutions have accepted that a third party may, in exceptional circumstances, act in the name and on behalf of a vulnerable person (see paragraphs 93-95 above ) reveals the following two main criteria: the risk that the direct victim will be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant.", "103. Applying these criteria to the present case, the Court does not discern any risk, firstly, that Vincent Lambert will be deprived of effective protection of his rights since, in accordance with its consistent case-law ( see paragraphs 90 above and 115 below ), it is open to the applicants, as Vincent Lambert ’ s close relatives, to rely before the Court, on their own behalf, on the right to life protected by Article 2.", "104. As regards the second criterion, the Court must next ascertain whether there is a convergence of interests between the applicants and Vincent Lambert. In that connection it notes that one of the key aspects of the domestic proceedings consisted precisely in determining Vincent Lambert ’ s wishes, given that Dr Kariger ’ s decision of 11 January 2014 was based on the certainty that Vincent Lambert “ had not wished, before his accident, to live under such conditions” (see paragraph 22 above). In its judgment of 24 June 2014, the Conseil d ’ État found, in the light of the testimony of Vincent Lambert ’ s wife and one of his brothers and the statements of several of his other siblings, that in basing his decision on that ground, Dr Kariger “[could not] be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident” (see paragraph 50 above). Accordingly, the Court does not consider it established that there is a convergence of interests between the applicants ’ assertions and what Vincent Lambert would have wished.", "105. The Court concludes that the applicants do not have standing to raise the complaints under Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert.", "106. It follows that these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 ( a) and must be rejected pursuant to Article 35 § 4.", "B. Rachel Lambert ’ s standing to act in the name and on behalf of Vincent Lambert", "1. The parties ’ submissions", "107. In a letter from her lawyer dated 9 July 2014, Rachel Lambert requested leave to represent her husband Vincent Lambert as a third-party intervener in the procedure. In support of her request she furnished a judgment of the Châlons ‑ en ‑ Champagne guardianship judge, dated 17 December 2008, giving her authority to represent her husband in matters arising out of their matrimonial regime, as well as two statements from a sister and half-brother of Vincent Lambert. According to those statements, Vincent Lambert would not have wished a decision in his case to be taken by his parents, from whom he was morally and physically estranged, but rather by his wife, who was his person of trust. She also produced a statement by her stepmother, who said that she had accompanied Rachel Lambert in July 2012 to a consultation with a professor of medicine at Liège University Hospital which was also attended by the first two applicants. During the consultation she and Rachel Lambert had stated Vincent Lambert ’ s wish not to live in an incapacitated state if such a situation should arise, and the second applicant had reportedly said that, if the question of euthanasia should arise, she would leave the decision to Rachel Lambert. In her observations, Rachel Lambert submitted that, since she was informed of her husband ’ s wishes, as corroborated by the statements she had produced, she alone had legal standing to act on behalf of Vincent Lambert and to represent him.", "108. The Government did not make any submissions on this point.", "109. The applicants submitted that the ruling of the guardianship judge produced by Rachel Lambert did not give her general authority to represent her husband, but merely authority to represent him in property-related matters. She could not therefore claim to be the only person to represent her husband before the Court. The applicants further maintained that the statements she had produced had no legal value; they also disputed the content of the statement by Rachel Lambert ’ s stepmother. They noted that Vincent Lambert had not designated a person of trust, and concluded that, as French law currently stood and in the absence of a full or partial guardianship order, Vincent Lambert was not represented by anyone in proceedings concerning him personally.", "2. The Court ’ s assessment", "110. The Court notes that no provision of the Convention permits a third-party intervener to represent another person before the Court. Furthermore, according to Rule 44 § 3 (a) of the Rules of Court, a third ‑ party intervener is any person concerned “ who is not the applicant”.", "111. Accordingly, the Court cannot but refuse Rachel Lambert ’ s request.", "C. Conclusion", "112. The Court has found that the applicants lacked standing to allege a violation of Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert (see paragraphs 105 ‑ 06 above), and has also rejected Rachel Lambert ’ s request to represent her husband as a third-party intervener (see paragraphs 110 ‑ 11 above).", "Nevertheless, the Court emphasises that, notwithstanding the findings it has just made regarding admissibility, it will examine below all the substantive issues arising in the present case under Article 2 of the Convention, given that they were raised by the applicants on their own behalf.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "113. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. They maintained that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014.", "114. The Government contested that argument.", "A. Admissibility", "115. The Court reiterates its case-law to the effect that the next-of-kin of a person whose death allegedly engages the responsibility of the State may claim to be victims of a violation of Article 2 of the Convention (see paragraph 90 above). Although Vincent Lambert is still alive, there is no doubt that if artificial nutrition and hydration were withdrawn, his death would occur within a short time. Accordingly, even if the violation is a potential or future one (see Tauira and 18 Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports 83 ‑ B, p. 112, at p. 131), the Court considers that the applicants, in their capacity as Vincent Lambert ’ s close relatives, may rely on Article 2.", "116. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground. The complaint must therefore be declared admissible.", "B. Merits", "1. The applicable rule", "117. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe ( see McCann and Others v. the United Kingdom, 27 September 1995, §§ 1 4 6 ‑ 4 7, Series A no. 324), enjoins the State not only to refrain from the “intentional” taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations) (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III).", "118. The Court will address these two aspects in turn and will begin by examining whether the present case involves the State ’ s negative obligations under Article 2.", "119. While the applicants acknowledged that the withdrawal of nutrition and hydration might be legitimate in cases of unreasonable obstinacy, and accepted that a legitimate distinction existed between, on the one hand, euthanasia and assisted suicide and, on the other hand, “ therapeutic abstention”, consisting in withdrawing or withholding treatment that had become unreasonable, they nevertheless argued repeatedly in their observations that, since these criteria were not met in their view, the present case concerned the intentional taking of life; they referred in this regard to the notion of “euthanasia”.", "120. The Government stressed that the aim of the medical decision was not to put an end to life, but to discontinue a form of treatment which had been refused by the patient or – where the patient was unable to express his or her wishes – which constituted, in the doctor ’ s view based on medical and non-medical factors, unreasonable obstinacy. They quoted the public rapporteur before the Conseil d ’ État, who in his submissions of 20 June 2014 had noted that, in discontinuing treatment, a doctor was not taking the patient ’ s life but was resolving to withdraw when there was nothing more to be done (see paragraph 45 above).", "121. The Court observes that the Leonetti Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it demonstrates unreasonable obstinacy. In its observations to the Conseil d ’ État, the National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. That prohibition is laid down in Article R. 4127-38 of the Public Health Code, which states that doctors may not take life intentionally (see paragraph 55 above).", "122. At the hearing of 14 February 2014 before the Conseil d ’ État, the public rapporteur cited the remarks made by the Minister of Health to the members of the Senate examining the Leonetti Bill:", "“While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.”", "123. In the case of Glass v. the United Kingdom ((dec.), no. 61827/00, 18 March 2003), the applicants complained under Article 2 of the Convention that a potentially lethal dose of diamorphine had been administered to their son, without their consent, by doctors in the hospital where he was being treated. The Court noted that the doctors had not deliberately sought to kill the child or to hasten his death, and examined the parents ’ complaints from the standpoint of the authorities ’ positive obligations (see also Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V).", "124. The Court notes that both the applicants and the Government make a distinction between the intentional taking of life and “therapeutic abstention” (see paragraphs 119-20 above), and stresses the importance of that distinction. In the context of the French legislation, which prohibits the intentional taking of life and permits life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances, the Court considers that the present case does not involve the State ’ s negative obligations under Article 2, and will examine the applicants ’ complaints solely from the standpoint of the State ’ s positive obligations.", "2. Whether the State complied with its positive obligations", "( a) The submissions of the parties and the third-party interveners", "( i) The applicants", "125. The applicants submitted first of all that the Leonetti Act was not applicable to Vincent Lambert, who, in their view, was neither sick nor at the end of life, but was severely disabled. They complained of the “confusion” arising from the Act on the following points: the notion of unreasonable obstinacy (and in particular the criterion concerning treatment having “ no other effect than to sustain life artificially”, which they considered to be extremely imprecise), and the classification of artificial nutrition and hydration as treatment rather than care. In their submission, Vincent Lambert ’ s enteral feeding was not a form of treatment that could be withdrawn, and the notion of unreasonable obstinacy did not apply to his medical situation.", "126. They argued that the process leading to the doctor ’ s decision of 11 January 2014 was incompatible with the State ’ s obligations flowing from Article 2 of the Convention. In their view, the procedure was not truly collective as it involved seeking opinions on a purely consultative basis, with the doctor alone taking the decision. They maintained that alternative systems were possible which would allow other doctors or the members of the family, in the absence of a person of trust, to participate in the decision ‑ making process. Lastly, they argued that the legislation should take into account the possibility of disagreement between family members and make provision at the very least for mediation.", "( ii) The Government", "127. The Government submitted that the Leonetti Act struck a balance between the right to respect for life and patients ’ right to consent to or refuse treatment. The definition of unreasonable obstinacy was based on the ethical principles of beneficence and non ‑ maleficence reiterated in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end-of-life situations”. In accordance with those principles, health-care professionals had an obligation to deliver only appropriate treatment and had to be guided solely by the benefit to the patient, which was to be assessed in overall terms. In that regard both medical and non ‑ medical factors, and in particular the patient ’ s wishes, were to be taken into account. They pointed out that when the bill had been debated in Parliament, an amendment seeking to exclude artificial nutrition and hydration from the scope of treatment had been rejected. They stressed that treatment also encompassed methods and interventions responding to a functional deficiency in the patient and involving the use of intrusive medical techniques.", "128. The Government emphasised that the French legislation provided for a number of procedural safeguards: consideration of the patient ’ s wishes and of the views of the person of trust, the family or those close to the patient and implementation of a collective procedure in which the family and those close to the patient were involved. Lastly, the doctor ’ s decision was subject to review by a judge.", "( iii) The third-party interveners", "( α ) Rachel Lambert", "129. Rachel Lambert submitted that the Leonetti Act subjected the doctor ’ s decision to numerous safeguards and balanced each individual ’ s right to receive the most suitable care with the right not to undergo treatment in circumstances amounting to unreasonable obstinacy. She stressed that the legislature had not sought to limit the recognition of patients ’ previously expressed wishes to cases in which they had designated a person of trust or drawn up advance directives; where this was not the case, the views of the family were sought in order, first and foremost, to establish what the patient would have wanted.", "130. Referring to the collective procedure implemented in the present case, she pointed out that Dr Kariger had consulted six doctors (three of them from outside the hospital), had convened a meeting with virtually all the care staff and all the doctors and had held two meetings with the family. His decision had been reasoned at length and bore witness to the professionalism of his approach.", "( β ) François Lambert and Marie-Geneviève Lambert", "131. François Lambert and Marie-Geneviève Lambert submitted that the doctor ’ s decision had been taken in accordance with the Leonetti Act, referred to above, the provisions of which they recapitulated. They stressed that the data emerging from the expert medical report ordered by the Conseil d ’ État were fully consistent with the notion of treatment serving solely to sustain life artificially, observing that it was Vincent Lambert ’ s inability to eat and drink by himself, without medical assistance in the form of enteral nutrition and hydration, that would cause his death.", "132. They submitted that the decision ‑ making process in the present case had been particularly lengthy, meticulous and respectful of the rights of all concerned, of the medical and paramedical opinions sought and of the views of the family members who had been invited to participate (especially the applicants, who had been assisted by a doctor of their choosing throughout the process) and who had been kept fully informed at every stage. In their view, the final decision had been taken in accordance with the process required by law and by the Convention, as set out in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end ‑ of ‑ life situations”.", "( γ) National Union of Associations of Head Injury and Brain Damage Victims ’ Families ( UNAFTC )", "133. UNAFTC echoed the concerns of the families and establishments it represented, and argued that patients in a chronic vegetative or minimally conscious state were not in an end-of-life situation and were not being kept alive artificially, and that where a person ’ s condition was not life ‑ threatening, artificial feeding and hydration could not be deemed to constitute treatment that could be withdrawn. UNAFTC submitted that a patient ’ s wishes could not be established on the basis of spoken remarks reported by some of the family members, and when in doubt, life should take precedence. At all events, in the absence of advance directives and of a person of trust, no decision to withdraw treatment could be taken in the absence of consensus within the family.", "( δ) Amréso-Bethel", "134. The association Amréso ‑ Bethel, which runs a care unit for patients in a minimally conscious or chronic vegetative state, provided details of the care dispensed to its patients.", "( ε) Human Rights Clinic", "135. In view of the multitude of approaches across the world to end ‑ of ‑ life issues and the differences regarding the circumstances in which passive euthanasia was permitted, the Human Rights Clinic submitted that States should be allowed a margin of appreciation in striking a balance between patients ’ personal autonomy and the protection of their lives.", "( b) The Court ’ s assessment", "( i) General considerations", "( α ) Existing case-law", "136. The Court has never ruled on the question which is the subject of the present application, but it has examined a number of cases concerning related issues.", "137. In a first group of cases, the applicants or their relatives invoked the right to die, relying on various Articles of the Convention.", "In Sanles Sanles, cited above, the applicant asserted, on behalf of her brother-in-law, who was tetraplegic and wished to end his life with the assistance of third parties and who died before the application was lodged, the right to die with dignity, relying on Articles 2, 3, 5, 6, 8, 9 and 14 of the Convention. The Court rejected the application as being incompatible ratione personae with the provisions of the Convention.", "In Pretty, cited above, the applicant was in the terminal stages of an incurable neurodegenerative disease and complained, relying on Articles 2, 3, 8, 9 and 14 of the Convention, that her husband could not help her to commit suicide without facing prosecution by the United Kingdom authorities. The Court found no violation of the provisions in question.", "Haas and Koch, cited above, concerned assisted suicide, and the applicants relied on Article 8 of the Convention. In Haas, the applicant, who had been suffering for a long time from a serious bipolar affective disorder, wished to end his life and complained of being unable to obtain the lethal substance required for that purpose without a medical prescription; the Court held that there had been no violation of Article 8. In Koch, the applicant alleged that the refusal to allow his wife (who was paralysed and needed artificial ventilation) to acquire a lethal dose of medication so that she could take her own life had breached her right, and his, to respect for their private and family life. He also complained of the domestic courts ’ refusal to examine his complaints on the merits, and the Court found a violation of Article 8 on that point only.", "138. In a second group of cases, the applicants took issue with the administering or withdrawal of treatment.", "In Glass, cited above, the applicants complained that diamorphine had been administered to their sick child by hospital doctors without their consent, and of the “ do not resuscitate ” order entered in his medical notes. In its decision of 18 March 2003, cited above, the Court found that their complaint under Article 2 of the Convention was manifestly ill-founded; in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention.", "In Burke v. the United Kingdom ((dec.), no. 19807/06, 11 July 2006), the applicant suffered from an incurable degenerative brain condition and feared that the guidance applicable in the United Kingdom could lead in due course to the withdrawal of his artificial nutrition and hydration. The Court declared his application, lodged under Articles 2, 3 and 8 of the Convention, inadmissible as being manifestly ill-founded.", "Lastly, in its decision in Ada Rossi and Others, cited above, the Court declared incompatible ratione personae an application lodged by individuals and associations complaining, under Articles 2 and 3 of the Convention, of the potentially adverse effects for them of execution of a judgment of the Italian Court of Cassation authorising the discontinuation of the artificial nutrition and hydration of a young girl in a vegetative state. [1]", "139. The Court observes that, with the exception of the violations of Article 8 in Glass and Koch, cited above, it did not find a violation of the Convention in any of these cases. [2]", "( β ) The context", "140. Article 2 requires the State to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, cited above, § 36, and the decision in Powell, cited above); in the public-health sphere, these positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Glass, cited above; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130).", "141. The Court stresses that the issue before it in the present case is not that of euthanasia, but rather the withdrawal of life ‑ sustaining treatment (see paragraph 124 above).", "142. In Haas ( cited above, § 54), the Court reiterated that the Convention had to be read as a whole (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 83, ECHR 2009). In Haas (cited above, § 54) the Court considered that it was appropriate, in the context of examining a possible violation of Article 8, to refer to Article 2 of the Convention. The Court considers that the converse also applies : in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses. In Pretty ( cited above, § 67) the Court was not prepared to exclude that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention. In Haas ( cited above, § 51), it asserted that an individual ’ s right to decide in which way and at which time his or her life should end was one of the aspects of the right to respect for private life.", "The Court refers in particular to paragraphs 63 and 65 of the judgment in Pretty, where it stated as follows.", "“ ... In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person ’ s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life ...", "The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.”", "143. The Court will take these considerations into account in examining whether the State complied with its positive obligations flowing from Article 2. It further observes that, in addressing the question of the administering or withdrawal of medical treatment in Glass and Burke, cited above, it took into account the following factors :", "(a) the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2 ( see Glass, cited above);", "(b) whether account had been taken of the applicant ’ s previously expressed wishes and those of the persons close to him or her, as well as the opinions of other medical personnel ( see Burke, cited above);", "(c) the possibility to approach the courts in the event of doubts as to the best decision to take in the patient ’ s interests (ibid.).", "The Court will take these factors into consideration in examining the present case. It will also take account of the criteria laid down in the Council of Europe ’ s “ Guide on the decision ‑ making process regarding medical treatment in end-of-life situations ” (see paragraphs 60-68 above).", "( γ ) The margin of appreciation", "144. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15, and that it construes strictly the exceptions defined therein (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174-77, ECHR 2011 ). However, in the context of the State ’ s positive obligations, when addressing complex scientific, legal and ethical issues concerning in particular the beginning or the end of life, and in the absence of consensus among the member States, the Court has recognised that the latter have a certain margin of appreciation.", "First of all the Court observes that in Vo (which concerned the acquittal on a charge of unintentional homicide of the doctor responsible for the death of the applicant ’ s unborn child), in examining the point at which life begins from the standpoint of Article 2 of the Convention, it concluded that this matter came within the States ’ margin of appreciation in this sphere. It took into consideration the absence of a common approach among the Contracting States and of a European consensus on the scientific and legal definition of the beginning of life ( cited above, § 82).", "The Court reiterated this approach in, inter alia, Evans v. the United Kingdom ([GC], no. 6339/05, §§ 54-56, ECHR 2007 ‑ I, concerning the fact that domestic law permitted the applicant ’ s former partner to withdraw his consent to the storage and use of embryos created jointly by them) and in A, B and C v. Ireland ([GC], no. 25579/05, § 237, ECHR 2010, in which the applicants essentially complained under Article 8 of the Convention of the prohibition on abortion in Ireland for health and well ‑ being reasons).", "145. On the question of assisted suicide the Court noted, in the context of Article 8 of the Convention, that there was no consensus among the member States of the Council of Europe as to an individual ’ s right to decide in which way and at which time his or her life should end, and therefore concluded that the States ’ margin of appreciation in this area was “considerable” ( see Haas, cited above, § 55, and Koch, cited above, § 70).", "146. The Court also stated, in general terms, in Ciechońska v. Poland ( no. 19776/04, § 65, 14 June 2011), concerning the authorities ’ responsibility for the accidental death of the applicant ’ s husband, that the choice of means for ensuring the positive obligations under Article 2 was in principle a matter that fell within the State ’ s margin of appreciation.", "147. The Court notes that no consensus exists among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appear to allow it. While the detailed arrangements governing the withdrawal of treatment vary from one country to another, there is nevertheless consensus as to the paramount importance of the patient ’ s wishes in the decision-making process, however those wishes are expressed (see paragraphs 74 ‑ 7 5 above).", "148. Accordingly, the Court considers that in this sphere concerning the end of life, as in that concerning the beginning of life, States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial life ‑ sustaining treatment and the detailed arrangements governing such withdrawal, but also as regards the means of striking a balance between the protection of patients ’ right to life and the protection of their right to respect for their private life and their personal autonomy (see, mutatis mutandis, A, B and C v. Ireland, cited above, § 237). However, this margin of appreciation is not unlimited (ibid. , § 238) and the Court reserves the power to review whether or not the State has complied with its obligations under Article 2.", "( ii) Application to the present case", "149. The applicants alleged that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014. In their view, these shortcomings were the result of the national authorities ’ failure to fulfil their duty of protection under Article 2 of the Convention.", "( α ) The legislative framework", "150. The applicants complained of a lack of precision and clarity in the legislation, which, in their submission, was not applicable to the case of Vincent Lambert, who was neither sick nor at the end of his life. They further maintained that the legislation did not define with sufficient precision the concepts of unreasonable obstinacy and treatment that could be withdrawn.", "151. The Court has regard to the legislative framework established by the Public Health Code (hereinafter “the Code”) as amended by the Leonetti Act (see paragraphs 52 ‑ 54 above). It further reiterates that interpretation is inherent in the work of the judiciary ( see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 85, 20 October 2011). It observes that, prior to the rulings given in the present case, the French courts had never been called upon to interpret the provisions of the Leonetti Act, although it had been in force for nine years. In the present case the Conseil d ’ État had the task of clarifying the scope of application of the Act and defining the concepts of “treatment” and “unreasonable obstinacy” (see below).", "The scope of application of the Act", "152. In its ruling of 14 February 2014, the Conseil d ’ État determined the scope of application of the Act. It held that it was clear from the very wording of the applicable provisions, and from the parliamentary proceedings prior to enactment of the legislation, that the provisions in question were general in scope and were applicable to all users of the health system, whether or not the patient was in an end - of - life situation (see paragraph 33 above).", "153. The Court notes that in his observations to the Conseil d ’ État Mr Jean Leonetti, the rapporteur for the Act, stated in his capacity as amicus curiae that it was applicable to patients who had brain damage and thus suffered from a serious condition that was incurable in the advanced stages, but who were not necessarily “at the end of life”. For that reason the legislature, in the title of the Act, had referred to “patients ’ rights and end-of-life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ” (see, to similar effect, the observations of the National Medical Academy, paragraph 44 above).", "The concept of treatment", "154. The Conseil d ’ État, in its ruling of 14 February 2014, interpreted the concept of treatment that could be withdrawn or limited. It held, in the light of Articles L. 1110 ‑ 5 and 1111 ‑ 4 of the Code, cited above, and of the parliamentary proceedings, that the legislature had intended to include among such forms of treatment all acts seeking to maintain the patient ’ s vital functions artificially, and that artificial nutrition and hydration fell into that category of acts. The amicus curiae submissions to the Conseil d ’ État agreed on this point.", "155. The Court notes that the Council of Europe ’s “Guide on the decision ‑ making process regarding medical treatment in end ‑ of ‑ life situations” addresses these issues. The Guide specifies that treatment covers not only interventions whose aim is to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have a bearing only on the symptoms and not on the aetiology of the illness, or which are responses to an organ dysfunction. According to the Guide, artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes). The Guide observes that differences in approach exist between countries. Some regard artificial nutrition and hydration as a form of treatment that may be limited or withdrawn in the circumstances and in accordance with the guarantees provided for in domestic law. The considerations to be taken into account in this regard are the patient ’ s wishes and whether or not the treatment is appropriate in the situation in question. In other countries they are regarded as a form of care meeting the individual ’ s basic needs which cannot be withdrawn unless the patient, in the terminal phase of an end ‑ of ‑ life situation, has expressed a wish to that effect (see paragraph 61 above).", "The concept of unreasonable obstinacy", "156. Under the terms of Article L. 1110 ‑ 5 of the Code, treatment will amount to unreasonable obstinacy if it is futile or disproportionate or has “no other effect than to sustain life artificially” (see paragraph 53 above). It is this last criterion which was applied in the present case and which the applicants consider to be imprecise.", "157. In his observations to the Conseil d ’ État in an amicus curiae capacity, Mr Leonetti stated that this wording, which was stricter than the wording originally envisaged ( treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others” (see paragraph 44 above). In the same vein, the National Medical Council emphasised the importance of the notion of temporality, observing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent (ibid.)", "158. In its judgment of 24 June 2014, the Conseil d ’ État detailed the factors to be taken into account by the doctor in assessing whether the criteria for unreasonable obstinacy were met, while making clear that each situation had to be considered on its own merits. These were: the medical factors (which had to cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition, his or her degree of suffering and the clinical prognosis) and the non ‑ medical factors, namely the patient ’ s wishes, however expressed, to which the doctor had to “attach particular importance”, and the views of the person of trust, the family or those close to the patient.", "159. The Court notes that the Conseil d ’ État established two important safeguards in that judgment. Firstly, it stated that “the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy”. Secondly, it stressed that where a patient ’ s wishes were not known, they could not be assumed to consist in a refusal to be kept alive ( see paragraph 48 above ).", "160. On the basis of this analysis, the Court cannot subscribe to the applicants ’ arguments. It considers that the provisions of the Leonetti Act, as interpreted by the Conseil d ’ État, constitute a legal framework which is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decisions taken by doctors in situations such as that in the present case. The Court therefore concludes that the State put in place a regulatory framework apt to ensure the protection of patients ’ lives ( see paragraph 14 0 above ).", "( β ) The decision-making process", "161. The applicants complained of the decision-making process, which, in their view, should have been genuinely collective or at the very least have provided for mediation in the event of disagreement.", "162. The Court notes at the outset that neither Article 2 nor its case-law can be interpreted as imposing any requirements as to the procedure to be followed with a view to securing a possible agreement. It points out that in Burke, cited above, it found the procedure consisting in determining the patient ’ s wishes and consulting those close to him or her as well as other medical personnel to be compatible with Article 2 (see paragraph 143 above).", "163. The Court observes that, although the procedure under French law is described as “collective” and includes several consultation phases (with the care team, at least one other doctor, the person of trust, the family or those close to the patient), it is the doctor in charge of the patient alone who takes the decision. The patient ’ s wishes must be taken into account and the decision itself must be accompanied by reasons and is added to the patient ’ s medical file.", "164. In his observations as amicus curiae, Mr Jean Leonetti pointed out that the Act gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified.", "165. It is clear from the comparative-law materials available to the Court that in those countries which authorise the withdrawal of treatment, and where the patient has not drawn up any advance directives, there exists a great variety of arrangements governing the taking of the final decision to withdraw treatment. It may be taken by the doctor (this is the most common situation), jointly by the doctor and the family, by the family or legal representative, or by the courts ( see paragraph 75 above ).", "166. The Court observes that the collective procedure in the present case lasted from September 2013 to January 2014 and that, at every stage of its implementation, it exceeded the requirements laid down by law. Whereas the procedure provides for the consultation of one other doctor and, where appropriate, a second one, Dr Kariger consulted six doctors, one of whom was designated by the applicants. He convened a meeting of virtually the entire care team and held two meetings with the family which were attended by Vincent Lambert ’ s wife, his parents and his eight siblings. Following those meetings Vincent Lambert ’ s wife and six of his brothers and sisters argued in favour of withdrawing treatment, as did five of the six doctors consulted, while the applicants opposed such a move. The doctor also held discussions with François Lambert, Vincent Lambert ’ s nephew. His decision, which ran to thirteen pages (an abridged seven-page version of which was read out to the family) provided very detailed reasons. The Conseil d ’ État held in its judgment of 24 June 2014 that it was not tainted by any irregularity (see paragraph 50 above).", "167. The Conseil d ’ État found that the doctor had complied with the requirement to consult the family and that it had been lawful for him to take his decision in the absence of unanimity among the family members. The Court notes that French law as it currently stands provides for the family to be consulted (and not for it to participate in taking the decision), but does not make provision for mediation in the event of disagreement between family members. Likewise, it does not specify the order in which family members ’ views should be taken into account, unlike in some other countries.", "168. The Court notes the absence of consensus on this subject ( see paragraph 16 5 above ) and considers that the organisation of the decision ‑ making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the State ’ s margin of appreciation. It notes that the procedure in the present case was lengthy and meticulous, exceeding the requirements laid down by the law, and considers that, although the applicants disagree with the outcome, that procedure satisfied the requirements flowing from Article 2 of the Convention (see paragraph 143 above).", "( γ ) Judicial remedies", "169. Lastly, the Court will examine the remedies that were available to the applicants in the present case. It observes that the Conseil d ’ État, called upon for the first time to rule on an appeal against a decision to withdraw treatment under the Leonetti Act, provided some important clarifications in its rulings of 14 February and 24 June 2014 concerning the scope of the review carried out by the urgent-applications judge of the administrative court in cases such as the present one.", "170. The applicants had lodged an urgent application with the administrative court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code. This Article provides that the judge, “when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority”. When dealing with an application on this basis, the urgent ‑ applications judge of the administrative court normally rules alone and as a matter of urgency, and may order interim measures on the basis of a “plain and obvious” test ( manifest unlawfulness).", "171. The Court notes that, as defined by the Conseil d ’ État (see paragraph 32 above), the role of the urgent-applications judge entails the power not only to suspend implementation of the doctor ’ s decision but also to conduct a full review of its lawfulness (and not just apply the test of manifest unlawfulness), if necessary sitting as a member of a bench of judges and, if needs be, after ordering an expert medical report and seeking the opinions of persons acting in an amicus curiae capacity.", "172. The Conseil d ’ État also specified in its judgment of 24 June 2014 that the particular role of the judge in such cases meant that he or she had to examine – in addition to the arguments alleging that the decision in question was unlawful – any arguments to the effect that the legislative provisions that had been applied were incompatible with the Convention.", "173. The Court notes that the Conseil d ’ État examined the case sitting as a full court (the seventeen-member Judicial Assembly), which is highly unusual in injunction proceedings. In its ruling of 14 February 2014, it stated that the assessment carried out at Liège University Hospital dated from two and a half years previously, and considered it necessary to have the fullest information possible on Vincent Lambert ’ s state of health. It therefore ordered an expert medical report, which it entrusted to three recognised specialists in neuroscience. Furthermore, in view of the scale and difficulty of the issues raised by the case, it requested the National Medical Academy, the National Ethics Advisory Committee, the National Medical Council and Mr Jean Leonetti to submit general observations to it as amici curiae, in order to clarify in particular the concepts of unreasonable obstinacy and sustaining life artificially.", "174. The Court notes that the expert report was prepared in great depth. The experts examined Vincent Lambert on nine occasions, conducted a series of tests and familiarised themselves with the entire medical file and with all the items in the judicial file of relevance for their report. Between 24 March and 23 April 2014 they also met all the parties concerned (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital).", "175. In its judgment of 24 June 2014, the Conseil d ’ État began by examining the compatibility of the relevant provisions of the Public Health Code with Articles 2, 8, 6 and 7 of the Convention (see paragraph 47 above), before assessing the conformity of Dr Kariger ’ s decision with the provisions of the Code (see paragraphs 48 ‑ 50 above). Its review encompassed the lawfulness of the collective procedure and compliance with the substantive conditions laid down by law, which it considered – particularly in the light of the findings of the expert report – to have been satisfied. It noted in particular that it was clear from the experts ’ findings that Vincent Lambert ’ s clinical condition corresponded to a chronic vegetative state, that he had sustained serious and extensive injuries whose severity, coupled with the period of five and a half years that had passed since the accident, led to the conclusion that it was irreversible and that there was a “poor clinical prognosis”. In the view of the Conseil d ’ État, these findings confirmed those made by Dr Kariger.", "176. The Court further observes that the Conseil d ’ État, after stressing “the particular importance” which the doctor must attach to the patient ’ s wishes (see paragraph 48 above), sought to ascertain what Vincent Lambert ’ s wishes had been. As the latter had not drawn up any advance directives or designated a person of trust, the Conseil d ’ État took into consideration the testimony of his wife, Rachel Lambert. It noted that she and her husband, who were both nurses with experience of patients in resuscitation and those with multiple disabilities, had often discussed their professional experiences and that on several such occasions Vincent Lambert had voiced the wish not to be kept alive artificially in a highly dependent state (see paragraph 50 above). The Conseil d ’ État found that those remarks – the tenor of which was confirmed by one of Vincent Lambert ’ s brothers – had been reported by Rachel Lambert in precise detail and with the corresponding dates. It also took account of the fact that several of Vincent Lambert ’ s other siblings had stated that these remarks were in keeping with their brother ’ s personality, past experience and views, and noted that the applicants did not claim that he would have expressed remarks to the contrary. The Conseil d ’ État observed, lastly, that the consultation of the family, prescribed by law, had taken place (ibid.).", "177. The applicants submitted, relying on Article 8 of the Convention, that the Conseil d ’ État should not have taken into consideration Vincent Lambert ’ s spoken remarks, which they considered to be too general.", "178. The Court points out first of all that it is the patient who is the principal party in the decision-making process and whose consent must remain at its heart; this is true even where the patient is unable to express his or her wishes. The Council of Europe ’ s “Guide on the decision ‑ making process regarding medical treatment in end-of-life situations” recommends that the patient should be involved in the decision-making process by means of any previously expressed wishes, which may have been confided orally to a family member or close friend (see paragraph 63 above).", "179. The Court also observes that, according to the comparative ‑ law materials available to it, in the absence of advance directives or of a “living will”, a number of countries require that efforts be made to ascertain the patient ’ s presumed wishes, by a variety of means (statements of the legal representative or the family, other factors testifying to the patient ’ s personality and beliefs, and so forth ).", "180. Lastly, the Court points out that in its judgment in Pretty ( cited above, § 63), it recognised the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life. Accordingly, it takes the view that the Conseil d ’ État was entitled to consider that the testimony submitted to it was sufficiently precise to establish what Vincent Lambert ’ s wishes had been with regard to the withdrawal or continuation of his treatment.", "( δ ) Final considerations", "181. The Court is keenly aware of the importance of the issues raised by the present case, which concerns extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterates that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient ’ s wishes in accordance with national law. The Court ’ s role consisted in ascertaining whether the State had fulfilled its positive obligations under Article 2 of the Convention.", "On the basis of that approach, the Court has found both the legislative framework laid down by domestic law, as interpreted by the Conseil d ’ État, and the decision-making process, which was conducted in meticulous fashion in the present case, to be compatible with the requirements of Article 2. As to the judicial remedies that were available to the applicants, the Court has reached the conclusion that the present case was the subject of an in ‑ depth examination in the course of which all points of view could be expressed and all aspects were carefully considered, in the light of both a detailed expert medical report and general observations from the highest ‑ ranking medical and ethical bodies.", "Consequently, the Court concludes that the domestic authorities complied with their positive obligations flowing from Article 2 of the Convention, in view of the margin of appreciation left to them in the present case.", "(ε ) Conclusion", "182. It follows that there would be no violation of Article 2 of the Convention in the event of implementation of the Conseil d ’ État judgment of 24 June 2014.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "183. The applicants maintained that they were potentially victims of a violation of their right to respect for their family life with their son and brother, in breach of Article 8 of the Convention.", "184. The Court is of the view that this complaint is absorbed by those raised by the applicants under Article 2 of the Convention. In view of its finding concerning that Article (see paragraph 18 2 above), the Court considers that it is not necessary to rule separately on this complaint.", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "185. The applicants further complained that the doctor who took the decision of 11 January 2014 was not impartial, as he had previously taken the same decision, and that the expert medical report ordered by the Conseil d ’ État had not been fully adversarial.", "They relied on Article 6 § 1 of the Convention, the relevant parts of which provide :", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "186. Even assuming Article 6 § 1 to be applicable to the procedure resulting in the doctor ’ s decision of 11 January 2014, the Court considers that these complaints, to the extent that they have not been dealt with already under Article 2 of the Convention (see paragraphs 150 ‑ 1 81 above), are manifestly ill ‑ founded.", "187. It follows that this aspect of the application must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976.", "11. Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d ’ État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below).", "12. From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of Châlons ‑ en ‑ Champagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in Berck ‑ sur ‑ Mer, before being moved on 23 June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube.", "13. In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received eighty-seven speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair.", "A. First decision taken under the Law of 22 April 2005 on patients’ rights and end-of-life issues", "14. As Vincent Lambert ’ s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Law of 22 April 2005 on patients ’ rights and end-of-life issues ( the so-called “Leonetti Act” – see paragraph 5 4 below). Rachel Lambert, the patient ’ s wife, was involved in the procedure.", "15. The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient ’ s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013.", "B. Injunction of 11 May 2013", "16. On 9 May 2013 the applicants applied to the urgent-applications judge of the Châlons ‑ en ‑ Champagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom ( référé liberté ) ), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required.", "17. In an order dated 11 May 2013, the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert ’ s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes.", "18. The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required.", "C. Second decision taken under the Leonetti Act", "19. In September 2013 a fresh collective procedure was initiated. Dr Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert ’ s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended - care facility within a nursing home.", "20. Dr Kariger also convened two meetings with the family, on 27 September and 16 November 2013, which were attended by Vincent Lambert ’ s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of continuing it.", "21. On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment.", "22. On completion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 1 3 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a seven ‑ page summary of which was read out to the family, observed in particular that Vincent Lambert ’ s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient ’ s life by continuing his artificial nutrition and hydration amounted to unreasonable obstinacy.", "D. Administrative Court judgment of 16 January 2014", "23. On 13 January 2014 the applicants made a further urgent application to the Châlons ‑ en ‑ Champagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert ’ s nutrition and hydration, and an order for his immediate transfer to a specialised extended - care facility in Oberhausbergen run by the association Amréso ‑ Bethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent Lambert ’ s nephew, intervened in the proceedings as third parties.", "24. The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014, it suspended the implementation of Dr Kariger ’ s decision of 11 January 2014.", "25. The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provisions for individuals to object to potentially life-prolonging treatment, or for a doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, to withdraw that treatment, subject to supervision by the Medical Council, the hospital ’ s ethics committee, where applicable, and the administrative and criminal courts.", "26. The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Leonetti Act and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and which required recourse to invasive techniques to administer them – constituted a form of treatment.", "27. Observing that Dr Kariger ’ s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr Kariger had incorrectly assessed Vincent Lambert ’ s wishes.", "28. The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 1 3 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger ’ s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert ’ s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended-care facility in Oberhausbergen.", "E. Conseil d ’ État ruling of 14 February 2014", "29. In three applications lodged on 31 January 2014, Rachel Lambert, François Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d ’ État. The applicants lodged a cross-appeal, requesting Vincent Lambert ’ s immediate transfer to the specialised extended-care facility. The National Union of Associations of Head Injury and Brain Damage Victims ’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party.", "30. At the hearing on the urgent application held on 6 February 2014, the President of the Judicial Division of the Conseil d ’ État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly.", "31. The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d ’ État, the public rapporteur cited, inter alia, the remarks made by the Minister of Health to the members of the Senate examining the bill known as the “ Leonetti Bill ” :", "“While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.”", "32. The Conseil d ’ État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d ’ État defined in the following terms the role of the urgent ‑ applications judge called upon to rule on the basis of Article L. 521 ‑ 2 of the Administrative Courts Code.", "“Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L. 511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘ plain and obvious ’ test, the necessary measures to protect fundamental freedoms.", "However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient ’ s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgent ‑ applications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article R. 625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court ’ s decision. ”", "33. The Conseil d ’ État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 1110 ‑ 5, L. 1111 ‑ 4 and R. 4127 ‑ 37) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d ’ État stated as follows.", "“It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end - of - life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must in any event preserve the patient ’ s dignity and dispense palliative care.", "Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111 -4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Law of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient ’ s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.”", "34. The Conseil d ’ État went on to find that its task was to satisfy itself, having regard to all the circumstances of the case, that the statutory conditions governing any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert ’ s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient ’ s entire medical file – were to give their opinion on Vincent Lambert ’ s current condition and provide the Conseil d ’ État with all relevant information as to the prospect of any change.", "35. The Conseil d ’ État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows.", "“(i) To describe Mr. Lambert ’ s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital;", "(ii) To express an opinion as to whether the patient ’ s brain damage is irreversible and as to the clinical prognosis;", "(iii) To determine whether the patient is capable of communicating, by whatever means, with those around him;", "(iv) To assess whether there are any signs to suggest at the present time that Mr Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.”", "36. The Conseil d ’ État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr Jean Leonetti, the rapporteur for the Law of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state.", "37. Lastly, the Conseil d ’ État rejected the applicants ’ request for Vincent Lambert to be transferred to a specialised extended-care facility (see paragraph 29 above).", "F. Expert medical report and general observations", "1. Expert medical report", "38. The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 1 3 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014, they met all the parties ( the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert.", "39. On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d ’ État.", "( a) Vincent Lambert ’ s clinical condition and how it had changed", "40. The experts found that Vincent Lambert ’ s clinical condition corresponded to a vegetative state, with no signs indicating a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011.", "( b) Irreversible nature of the brain damage and clinical prognosis", "41. The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient ’ s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis.", "( c) Vincent Lambert ’ s capacity to communicate with those around him", "42. In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him.", "( d) Existence of signs suggesting that Vincent Lambert reacted to the care provided, and interpretation of those signs", "43. The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were non ‑ conscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment.", "2. General observations", "44. On 22 and 29 April and 5 May 2014 the Conseil d ’ État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Law of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee.", "The National Medical Council made clear in particular that, in using the expression “ no other effect than to sustain life artificially” in Article L. 1110 ‑ 5 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent.", "Mr Leonetti stressed that the Law of 22 April 2005 was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature had referred in its title to “patients ’ rights and end ‑ of ‑ life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “ no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Law of 22 April 2005 gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified.", "The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Leonetti Act was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state.", "The National Ethics Advisory Committee conducted an in ‑ depth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states, and addressed the ethical issues arising out of such situations. It recommended, in particular, a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation.", "G. Conseil d ’ État judgment of 24 June 2014", "45. A hearing took place on 20 June 2014 before the Conseil d ’ État. In his submissions the public rapporteur stressed, in particular, the following :", "“ ... [ T ]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient ’ s life, but is resolving to withdraw when there is nothing more to be done.”", "The Conseil d ’ État delivered its judgment on 24 June 2014. After granting leave to Marie ‑ Geneviève Lambert, Vincent Lambert ’ s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d ’ État examined in turn the applicants ’ arguments based on the Convention and on domestic law.", "46. On the first point the Conseil d ’ État reiterated that, where the urgent ‑ applications judge was called on to hear an application under Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on the ground of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above).", "47. In the case before it the Conseil d ’ État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention.", "“Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law.", "Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ..., or with those of Article 8 ... ”", "The Conseil d ’ État also rejected the applicants ’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it.", "48. Regarding the application of the relevant provisions of the Public Health Code, the Conseil d ’ État held as follows.", "“Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy.", "In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors – which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis – the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient ’ s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient ’ s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient ... ”", "49. The Conseil d ’ État went on to find that it was its task, in the light of all the circumstances of the case and the evidence produced in the course of the adversarial proceedings before it, in particular the expert medical report, to ascertain whether the decision taken by Dr Kariger on 11 January 2014 had complied with the statutory conditions imposed on any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy.", "50. In that connection the Conseil d ’ État ruled as follows.", "“Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11 January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert ’ s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient ’ s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert ’ s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11 January 2014 was not tainted by any irregularity.", "Secondly, the experts ’ findings indicate that ‘ Mr Lambert ’ s current clinical condition corresponds to a vegetative state ’, with ‘ swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem ’ and ‘ continued ability to breathe unaided ’. The results of the tests carried out from 7 to 11 April 2014 to assess the patient ’ s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert ’ s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘ a deterioration in the [patient ’ s] state of consciousness since that time ’.", "Furthermore, according to the findings set out in the experts ’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘ severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function ’ and ‘ major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness ’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible.", "Furthermore, the experts concluded that ‘ the lengthy period of progression, the patient ’ s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs ’ pointed to a ‘ poor clinical prognosis ’.", "Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘ conscious awareness of suffering ’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive.", "These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr Lambert ’ s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d ’ État subsequent to submission of the experts ’ report do nothing to invalidate the experts ’ conclusions. While it can be seen from the experts ’ report, as just indicated, that Mr Lambert ’ s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision.", "Thirdly, the provisions of the Public Health Code allow account to be taken of a patient ’ s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and her husband, both nurses, had often discussed their respective professional experiences in dealing with patients under resuscitation and those with multiple disabilities, and that Mr Lambert had on several such occasions clearly voiced the wish not to be kept alive artificially if he were to find himself in a highly dependent state. The tenor of those remarks, reported by Mrs Rachel Lambert in precise detail and with the corresponding dates, was confirmed by one of Mr Lambert ’ s brothers. While these remarks were not made in the presence of Mr Lambert ’ s parents, the latter did not claim that their son could not have made them or that he would have expressed wishes to the contrary, and several of Mr Lambert ’ s siblings stated that the remarks concerned were in keeping with their brother ’ s personality, past experience and personal opinions. Accordingly, in stating among the reasons for the decision at issue his certainty that Mr Lambert did not wish, before his accident, to live under such conditions, Dr Kariger cannot be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident.", "Fourthly, the doctor in charge of the patient is required, under the provisions of the Public Health Code, to obtain the views of the patient ’ s family before taking any decision to withdraw treatment. Dr Kariger complied with this requirement in consulting Mr Lambert ’ s wife, parents and siblings in the course of the two meetings referred to earlier. While Mr Lambert ’ s parents and some of his brothers and sisters opposed the discontinuing of treatment, Mr Lambert ’ s wife and his other siblings stated their support for the proposal to withdraw treatment. Dr Kariger took these different opinions into account. In the circumstances of the case, he concluded that the fact that the members of the family were not unanimous as to what decision should be taken did not constitute an impediment to his decision.", "It follows from all the above considerations that the various conditions imposed by the law before any decision can be taken by the doctor in charge of the patient to withdraw treatment which has no effect other than to sustain life artificially, and whose continuation would thus amount to unreasonable obstinacy, may be regarded, in the case of Mr Vincent Lambert and in the light of the adversarial proceedings before the Conseil d ’ État, as having been met. Accordingly, the decision taken by Dr Kariger on 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert cannot be held to be unlawful. ”", "51. Accordingly, the Conseil d ’ État set aside the Administrative Court ’ s judgment and dismissed the applicants ’ claims.", "II. In the cases contemplated in the fifth paragraph of Article L. 1111-4 and the first paragraph of Article L. 1111-13, the decision to limit or withdraw the treatment administered may not be taken unless a collective procedure has first been implemented. The doctor may set the collective procedure in motion on his or her own initiative. He or she shall be required to do so in the light of any advance directives given by the patient and submitted by one of the persons in possession of them mentioned in Article R. 1111-19, or at the request of the person of trust, the family or, failing this, another person close to the patient. The persons in possession of the patient ’ s advance directives, the person of trust, the family or, where appropriate, another person close to the patient shall be informed as soon as the decision has been taken to implement the collective procedure.", "The decision to limit or withdraw treatment shall be taken by the doctor in charge of the patient, after consultation with the care team where this exists, and on the basis of the reasoned opinion of at least one doctor acting as a consultant. There must be no hierarchical link between the doctor in charge of the patient and the consultant. The reasoned opinion of a second consultant shall be sought by these doctors if either of them considers it necessary.", "The decision to limit or withdraw treatment shall take into account any wishes previously expressed by the patient, in particular in the form of advance directives, if drawn up, the views of the person of trust the patient may have designated and those of the family or, failing this, of another person close to the patient. ...", "Reasons shall be given for any decision to limit or withdraw treatment. The opinions received, the nature and tenor of the consultations held within the care team and the reasons for the decision shall be recorded in the patient ’ s file. The person of trust, if one has been designated, the family or, failing this, another person close to the patient, shall be informed of the nature of and the reasons for the decision to limit or withdraw treatment.", "III. Where it has been decided to limit or withdraw treatment under Article L. 1110 ‑ 5 and Article L. 1111-4 or L. 1111-13, in the circumstances provided for in points I and II of the present Article, the doctor, even if the patient ’ s suffering cannot be assessed on account of his or her cerebral state, shall put in place the necessary treatment, in particular pain relief and sedation, to support the patient in accordance with the principles and conditions laid down in Article R. 4127-38. He or she shall also ensure that the persons close to the patient are informed of the situation and receive the support they require.”", "55. Article R. 4127-38 of the Code provides:", "“The doctor must support the dying person until the moment of death, ensure, through appropriate treatment and measures, the quality of life as it nears its end, preserve the patient ’ s dignity, and comfort those close to him or her.", "Doctors do not have the right to take life intentionally .”", "B. Private members ’ bill of 21 January 2015", "56. Two members of Parliament (Mr Leonetti and Mr Claeys) tabled a bill before the National Assembly on 21 January 2015 proposing in particular the following amendments to the Law of 22 April 2005:", "– section 2 of the bill specifies that artificial nutrition and hydration constitute a form of treatment;", "– advance directives are to be binding on the doctor and there will no longer be a time-limit on their validity (they are currently valid for three years), their drafting will be subject to a prescribed procedure and they will be more accessible. Where there are no advance directives, the role of the person of trust is spelled out ( the latter ’ s task is to express the patient ’ s wishes, and his or her testimony takes precedence over any other );", "– the bill expressly acknowledges that every individual has “the right to refuse or not to undergo any treatment” and that the doctor cannot insist on continuing with it (previous wording). Nevertheless, the doctor must continue to provide support to the patient, particularly in the form of palliative care;", "– the right not to suffer is recognised (the doctor must put in place all available pain relief and sedation to deal with suffering in the advanced or terminal stages, even if these may have the effect of shortening the time left to live);", "– the right of patients in the terminal stages to deep, continuous sedation until death is also recognised: the withdrawal of treatment (including artificial nutrition and hydration) must always be accompanied by sedation. Where the patient is incapable of expressing his or her wishes the bill provides – subject to account being taken of the patient ’ s wishes and in accordance with a collective procedure – that the doctor is required to discontinue or withhold treatment which “has no other effect than to sustain life artificially” (in the current wording, the doctor may discontinue such treatment). If these criteria are met, the patient has the right to deep, continuous sedation until death occurs.", "The bill was adopted on 17 March 2015 by the National Assembly and is currently being examined in the Senate.", "C. Administrative Courts Code", "57. Article L. 521 ‑ 2 of the Administrative Courts Code, concerning urgent applications for protection of a fundamental freedom, reads as follows:", "“Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has allegedly been breached in a serious and manifestly unlawful manner by a public - law entity or an organisation governed by private law responsible for managing a public service, in the exercise of their powers. The urgent ‑ applications judge shall rule within forty-eight hours.”", "58. Article R. 625 ‑ 3 of the same Code provides:", "“The bench examining the case may call on any person whose expertise or knowledge might usefully inform its determination of the case to submit general observations on the points in issue.", "The opinion shall be submitted in writing. It shall be communicated to the parties ... ”", "III. COUNCIL OF EUROPE MATERIALS", "A. The Oviedo Convention on Human Rights and Biomedicine", "59. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty ‑ nine of the Council of Europe member States. Its relevant provisions read as follows:", "Article 1 – Purpose and object", "“Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. ... ”", "Article 5 – General rule", "“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.", "The person concerned may freely withdraw consent at any time.”", "Article 6 – Protection of persons not able to consent", "“1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.", "...", "3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.", "The individual concerned shall as far as possible take part in the authorisation procedure.", "4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.", "5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.”", "Article 9 – Previously expressed wishes", "“The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.”", "B. The “ Guide on the decision-making process regarding medical treatment in end-of-life situations ”", "60. This Guide was drawn up by the Committee on Bioethics of the Council of Europe in the course of its work on patients ’ rights and with the intention of facilitating the implementation of the principles enshrined in the Oviedo Convention.", "Its aims are to propose reference points for the implementation of the decision-making process regarding medical treatment in end-of-life situations, to bring together both normative and ethical reference works and elements relating to good medical practice which may be useful to health-care professionals dealing with the implementation of the decision ‑ making process, and to contribute, through the clarification it provides, to the overall discussion on the subject.", "61. The Guide cites as the ethical and legal frames of reference for the decision-making process the principles of autonomy (free, informed and prior consent of the patient), beneficence and non-maleficence, and justice (equitable access to health care). It specifies that doctors must not dispense treatment which is needless or disproportionate in view of the risks and constraints it entails. They must provide patients with treatment that is proportionate and suited to their situation. They also have a duty to take care of their patients, ease their suffering and provide them with support.", "Treatment covers interventions which aim to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have no bearing on the aetiology of the illness but act on the symptoms, or which are responses to an organ dysfunction. Under the heading “Disputed issues”, the Guide states as follows.", "“ The question of limiting, withdrawing or withholding artificial hydration and nutrition", "Food and drink given to patients who are still able to eat and drink themselves are external contributions meeting physiological needs, which should always be satisfied. They are essential elements of care which should be provided unless the patient refuses them.", "Artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes).", "Artificial nutrition and hydration are regarded in a number of countries as forms of treatment, which may therefore be limited or withdrawn in the circumstances and in accordance with the guarantees stipulated for limitation or withdrawal of treatment (refusal of treatment expressed by the patient, refusal of unreasonable obstinacy or disproportionate treatment assessed by the care team and accepted in the framework of a collective procedure). The considerations to be taken into account in this regard are the wishes of the patient and the appropriate nature of the treatment in the situation in question.", "In other countries, however, it is considered that artificial nutrition and hydration do not constitute treatment which can be limited or withdrawn, but a form of care meeting the individual ’ s basic needs, which cannot be withdrawn unless the patient, in the terminal phase of an end-of-life situation, has expressed a wish to that effect.", "The question of the appropriate nature, in medical terms, of artificial nutrition and hydration in the terminal phase is itself a matter of debate. Some take the view that implementing or continuing artificial hydration and nutrition are necessary for the comfort of a patient in an end-of-life situation. For others, the benefit of artificial hydration and nutrition for the patient in the terminal phase, taking into account research in palliative care, is questionable.”", "62. The Guide concerns the decision-making process regarding medical treatment as it applies to end ‑ of ‑ life situations (including its implementation, modification, adaptation, limitation or withdrawal). It does not address the issues of euthanasia or assisted suicide, which some national legislations authorise.", "63. While other parties are involved in the decision-making process, the Guide stresses that the principal party is the patient himself or herself. When the patient cannot or can no longer take part in making decisions, they will be taken by a third party according to the procedures laid down in the relevant national legislation. However, the patient should nonetheless be involved in the decision-making process by means of any previously expressed wishes. The Guide lists the various forms these may take: the patient may have confided his or her intentions orally to a family member, a close friend or a person of trust designated as such; or they may be set down formally, in advance directives or a living will or as powers granted to another person, sometimes referred to as powers of future protection ( mandat de protection future ).", "64. Other persons involved in the decision-making process may include the patient ’ s legal representative or a person granted a power of attorney, family members and close friends, and the carers. The Guide stresses that doctors have a vital, not to say primary, role because of their ability to appraise the patient ’ s situation from a medical viewpoint. Where patients are not, or are no longer, able to express their wishes, doctors are the people who, in the context of the collective decision-making process, having involved all the health-care professionals concerned, will take the clinical decision guided by the best interests of the patient. To this end, they will have taken note of all the relevant elements (consultation of family members, close friends, the person of trust, and so on ) and taken into account any previously expressed wishes. In some systems the decision is taken by a third party, but in all cases doctors are the ones to ensure that the decision-making process is properly conducted.", "65. The Guide reiterates that the patient should always be at the centre of any decision-making process, which takes on a collective dimension when the patient is no longer willing or able to participate in it directly. The Guide identifies three main stages in the decision-making process: an individual stage (each party forms his or her arguments on the basis of the information gathered), a collective stage (the various parties take part in exchanges and discussions) and a concluding stage (when the actual decision is taken).", "66. The Guide points out that sometimes, where positions diverge significantly or the question is highly complex or specific, there may be a need to make provision to consult third parties either to contribute to the debate, to overcome a problem or to resolve a conflict. The consultation of a clinical ethics committee may, for example, be appropriate. At the end of the collective discussion, agreement must be reached. A conclusion must be drawn and validated collectively and then formalised in writing.", "67. If the decision is taken by the doctor, it should be taken on the basis of the conclusions of the collective discussion and be announced, as appropriate, to the patient, the person of trust and/or the entourage of the patient, the care team and the third parties concerned who have taken part in the process. The decision should also be formalised (in the form of a written summary of the reasons) and kept in an identified place.", "68. The Guide highlights the disputed nature of the use of deep sedation in the terminal phase, which may have the effect of shortening the time left to live. Lastly, it suggests an evaluation of the decision-making process after its application.", "C. Committee of Ministers Recommendation", "69. In Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity, the Committee of Ministers recommended to member States that they promote these practices, and defined a number of principles to assist member States in regulating them.", "D. Parliamentary Assembly materials", "70. In Recommendation 1418 (1999) on protection of the human rights and dignity of the terminally ill and the dying, the Parliamentary Assembly recommended to the Committee of Ministers that it encourage the member States to respect and protect the dignity of terminally ill or dying persons in all respects, including their right to self-determination, while taking the necessary measures:", "(i) to ensure that patients ’ advance directives or living wills refusing specific medical treatments are observed, where the patients are no longer able to express their wishes;", "(ii) to ensure that ‑ notwithstanding the physician ’ s ultimate therapeutic responsibility ‑ the wishes they have expressed with regard to particular forms of treatment are taken into account, provided this does not violate their human dignity.", "71. Parliamentary Assembly Resolution 1859 (2012) entitled “ Protecting human rights and dignity by taking into account previously expressed wishes of patients ” reiterates the principles of personal autonomy and consent enshrined in the Oviedo Convention (see paragraph 5 9 above), according to which no one can be compelled to undergo any medical treatment against his or her will. The Resolution lays down guidelines for national parliaments in relation to advance directives, living wills and continuing powers of attorney." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Public Health Code", "52. Under Article L. 1110 ‑ 1 of the Public Health Code (“the Code”), all available means must be used to secure to each individual the fundamental right to protection of health. Article L. 1110 ‑ 2 of the Code provides that the patient has the right to respect for his or her dignity, while Article L. 1110 ‑ 9 guarantees to everyone whose condition requires it the right to palliative care. This is defined in Article L. 1110 ‑ 10 as active and ongoing care intended to relieve pain, ease psychological suffering, preserve the patient ’ s dignity and support those close to him or her.", "53. The Law of 22 April 2005 on patients ’ rights and end ‑ of ‑ life issues, known as the “ Leonetti Act ” after its rapporteur, Mr Jean Leonetti (see paragraph 44 above), amended a number of Articles of the Code.", "The Act was passed following the work of a parliamentary commission chaired by Mr Leonetti and tasked with exploring the full range of end ‑ of ‑ life issues and considering possible legislative or regulatory amendments. In the course of its work the parliamentary commission heard evidence from a great many individuals. It submitted its report on 30 June 2004. The Act was passed unanimously by the National Assembly on 30 November 2004 and by the Senate on 12 April 2005.", "The Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it would demonstrate unreasonable obstinacy (in other words, if it would mean taking it to unreasonable lengths ( acharnement thérapeutique ) ).", "The relevant Articles of the Code, as amended by the Act, read as follows.", "Article L. 1110-5", "“Every individual, regard being had to his or her state of health and the urgency of the treatment required, shall be entitled to receive the most appropriate care and to be given the safest treatment known to medical science at the time to be effective. Preventive or exploratory acts or care must not, as far as medical science can guarantee, subject the patient to disproportionate risks in relation to the anticipated benefits.", "Such acts must not be continued with unreasonable obstinacy. Where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, they may be discontinued or withheld. In such cases, the doctor shall preserve the dignity of the dying patient and ensure his or her quality of life by dispensing the care referred to in Article L. 1110-10 ...", "Everyone shall be entitled to receive care intended to relieve pain. That pain must in all cases be prevented, assessed, taken into account and treated.", "Health - care professionals shall take all the measures available to them to allow each individual to live a life of dignity until his or her death ... ”", "Article L. 1111-4", "“Each individual shall, together with the health - care professional and in the light of the information provided and the recommendations made by the latter, take the decisions concerning his or her own health.", "The doctor must respect the individual ’ s wishes after informing him or her of the consequences of the choices made ...", "No medical act or treatment may be administered without the free and informed consent of the patient, which may be withdrawn at any time.", "Where the individual is unable to express his or her wishes, no intervention or examination may be carried out, except in cases of urgency or impossibility, without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted.", "Where the individual is unable to express his or her wishes, no decision to limit or withdraw treatment, where such a measure would endanger the patient ’ s life, may be taken without the collective procedure defined in the Code of Medical Ethics having been followed and without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted, and without any advance directives issued by the patient having been examined. The decision to limit or withdraw treatment, together with the reasons for it, shall be recorded in the patient ’ s file ... ”", "Article L. 1111-6", "“ All adults may designate a person of trust, who may be a relative, another person close to the adult, or his or her usual doctor, and who will be consulted in the event that the patient is unable to express his or her wishes and to receive the necessary information for that purpose. The designation shall be made in writing and may be revoked at any time. Should the patient so wish, the person of trust may provide support and attend medical consultations with the patient in order to assist him or her in making decisions.", "Whenever he or she is admitted to a health - care establishment, the patient shall be offered the possibility of designating a person of trust in the conditions laid down in the preceding paragraph. The designation shall be valid for the duration of the patient ’ s hospitalisation, unless he or she decides otherwise ... ”", "Article L. 1111-11", "“ All adults may draw up advance directives in case they should become unable to express their wishes. These shall indicate the wishes of the individual concerned as regards the conditions in which treatment may be limited or withdrawn in an end ‑ of ‑ life situation. They may be revoked at any time.", "Provided they were drawn up less than three years before the individual became unconscious, the doctor shall take them into account in any decision to carry out examinations, interventions or treatment in respect of the person concerned ... ”", "54. The collective procedure provided for in the fifth paragraph of Article L. 1111 ‑ 4 of the Code is described in detail in Article R. 4127 ‑ 37, which forms part of the Code of Medical Ethics and reads as follows:", "“I. The doctor shall at all times endeavour to alleviate suffering by the means most appropriate to the patient ’ s condition, and provide moral support. He or she shall refrain from any unreasonable obstinacy in carrying out examinations or treatment and may decide to withhold or discontinue treatment which appears futile or disproportionate or the only purpose or effect of which is to sustain life artificially.", "IV. COMPARATIVE LAW", "A. Legislation and practice in Council of Europe member States", "72. According to the information available to the Court concerning thirty-nine of the forty-seven Council of Europe member States, no consensus exists in practice in favour of authorising the withdrawal of treatment designed only to prolong life artificially. In the majority of countries, treatment may be withdrawn subject to certain conditions. In other countries the legislation prohibits withdrawal or is silent on the subject.", "73. In those countries which permit it, this possibility is provided for either in legislation or in non-binding instruments, most often in a code of medical ethics. In Italy, in the absence of a legal framework, the withdrawal of treatment has been recognised in the courts ’ case-law.", "74. Although the detailed arrangements for the withdrawal of treatment vary from one country to another, there is consensus as to the paramount importance of the patient ’ s wishes in the decision-making process. As the principle of consent to medical care is one of the aspects of the right to respect for private life, States have put in place different procedures to ensure that consent is expressed or to verify its existence.", "75. All the legislation allowing treatment to be withdrawn makes provision for patients to issue advance directives. In the absence of such directives, the decision lies with a third party, whether it be the doctor treating the patient, persons close to the patient or his or her legal representative, or even the courts. In all cases, the involvement of those close to the patient is possible, although the legislation does not choose between them in the event of disagreement. However, some countries operate a hierarchy among persons close to the patient and give priority to the spouse ’ s wishes.", "76. In addition to the requirement to seek the patient ’ s consent, the withdrawal of treatment is also subject to other conditions. Depending on the country, the patient must be dying or be suffering from a condition with serious and irreversible medical consequences, the treatment must no longer be in the patient ’ s best interests, it must be futile, or withdrawal must be preceded by an observation phase of sufficient duration and by a review of the patient ’ s condition.", "B. Observations of the Human Rights Clinic", "77. The Human Rights Clinic, third-party intervener ( see paragraph 8 above ), presented an overview of national legislation and practice concerning active and passive euthanasia and assisted suicide in Europe and America.", "78. The survey concludes that no consensus currently exists among the member States of the Council of Europe, or in the other countries surveyed, regarding the authorisation of assisted suicide or euthanasia.", "79. However, there is consensus on the need for passive euthanasia to be tightly regulated in those countries which permit it. In that connection each country lays down criteria in its legislation for determining the point at which euthanasia may be performed, in the light of the patient ’ s condition and in order to make sure that he or she has consented to the measure. Nevertheless, these criteria vary appreciably from one country to another.", "THE LAW", "I. STANDING TO ACT IN THE NAME AND ON BEHALF OF VINCENT LAMBERT", "80. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. In their view, depriving him of nutrition and hydration would constitute ill-treatment amounting to torture within the meaning of Article 3 of the Convention. They further argued that the lack of physiotherapy since October 2012 and the lack of therapy to restore the swallowing reflex amounted to inhuman and degrading treatment in breach of that provision. Lastly, they submitted that the withdrawal of nutrition and hydration would also infringe Vincent Lambert ’ s physical integrity, in breach of Article 8 of the Convention.", "81. Articles 2, 3 and 8 of the Convention read as follows.", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... ”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The applicants ’ standing to act in the name and on behalf of Vincent Lambert", "1. The parties ’ submissions", "(a) The Government", "82. The Government observed that the applicants had not stated that they wished to act on Vincent Lambert ’ s behalf, and considered the question whether they could apply to the Court on his behalf to be devoid of purpose.", "( b) The applicants", "83. The applicants submitted that any individual, irrespective of his or her disability, should be able to benefit from the guarantees afforded by the Convention, including where he or she had no representative. They stressed that their standing or interest in bringing proceedings had never been challenged before the domestic courts, as French law gave the family of a person whose treatment it was proposed to withdraw the right to express a view on the measure in question. This necessarily entailed standing to act in court proceedings not only on their own behalf but also on behalf of the patient.", "84. Citing the criteria established by the Court in Koch v. Germany (no. 497/09, §§ 43 et seq., 19 July 2012), the applicants submitted that those criteria were satisfied in the present case because the case concerned a matter of general interest and because of their close family ties and their personal interest in the proceedings. They stressed that they had applied to the domestic courts and then to the Court in order to assert Vincent Lambert ’ s fundamental rights under Articles 2 and 3 which he himself was unable to do and which his wife could not either since she had accepted the medical decision in issue.", "( c) The individual third-party interveners", "85. Rachel Lambert, Vincent Lambert ’ s wife, submitted that the applicants did not have standing to act on behalf of Vincent Lambert. She pointed out that the Court had been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to “respect for human rights” and the person concerned, as heir, had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant ’ s own rights. However, in Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000 ‑ XI), the Court had found that the rights asserted by the applicant under Articles 2, 3, 5 and 8 of the Convention belonged to the category of non ‑ transferable rights and had held that the applicant, who was the sister-in-law and legitimate heir of the deceased, could not claim to be the victim of a violation on her late brother ‑ in ‑ law ’ s behalf.", "86. On the issue of representation, she observed that it was essential for representatives to demonstrate that they had received specific and explicit instructions from the alleged victim. This was not the case of the applicants, who had received no specific and explicit instructions from Vincent Lambert, whereas the examination of the case by the Conseil d ’ État had highlighted the fact that she herself had been taken into her husband ’ s confidence and informed of his wishes, as corroborated by statements produced before the domestic courts.", "87. François Lambert and Marie ‑ Geneviève Lambert, Vincent Lambert ’ s nephew and half ‑ sister, submitted that the applicants lacked standing to act on his behalf. Firstly, the violations of Articles 2, 3 and 8 of the Convention alleged by the applicants concerned non ‑ transferable rights to which they could not lay claim on their own behalf; secondly, the applicants were not the legal representatives of Vincent Lambert, who was an adult born in 1976; and, thirdly, their application contravened Vincent Lambert ’ s freedom of conscience and his own right to life and infringed his privacy. François Lambert and Marie ‑ Geneviève Lambert observed that, although the Court had, by way of an exception, accepted that parents might act on behalf and in the place of a victim in arguing a breach of Article 3 of the Convention, this was only in the case of the victim ’ s disappearance or death and in certain specific circumstances. Those conditions were not met in the present case, making the application inadmissible. They argued that the Court had had occasion to reaffirm this inadmissibility in end-of-life cases similar to the present one (they referred to Sanles Sanles, cited above, and Ada Rossi and Others v. Italy (dec.), nos. 55185/08, 55483/08, 55516/08, 55519/08, 56010/08, 56278/08 and 58424/08, 16 December 2008).", "88. Lastly, they argued that the applicants could not in fact “legitimately” challenge the Conseil d ’ État ’ s judgment, since the position they defended was directly opposed to Vincent Lambert ’ s beliefs. The doctors and the judges had taken account of the latter ’ s wishes, which he had confided to his wife – with whom he had had a very close relationship – in full knowledge of the facts, in view of his professional experience as a nurse.", "2. The Court ’ s assessment", "( a) Recapitulation of the principles", "89. In the recent cases of Nencheva and Others v. Bulgaria ( no. 48609/06, 18 June 2013) and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ( [GC], no. 47848/08, ECHR 2014), the Court reiterated the following principles.", "In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. According to the Court ’ s established case - law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act ( see Nencheva and Others, cited above, § 88). The individual concerned must be able to show that he or she was “directly affected” by the measure complained of ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96, with further references ).", "90. An exception is made to this principle where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State. In such cases the Court has recognised the standing of the victim ’ s next-of-kin to submit an application ( see Nencheva and Others, cited above, § 89, and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 98-99, with further references ).", "91. Where the application is not lodged by the victims themselves, Rule 45 § 3 of the Rules of Court requires a written authority to act, duly signed, to be produced. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; Nencheva and Others, cited above, § 83; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 102). However, the Convention institutions have held that special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities. Applications lodged by individuals on behalf of the victim or victims, even though no valid form of authority was presented, have thus been declared admissible ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 103).", "92. Particular consideration has been shown with regard to the victims ’ vulnerability on account of their age, sex or disability, which rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connections between the person lodging the application and the victim (ibid .).", "93. For instance, in S.P., D.P. and A.T. v. the United Kingdom (no. 23715/94, Commission decision of 20 May 1996, unreported ), which concerned, inter alia, Article 8 of the Convention, the Commission declared admissible an application lodged by a solicitor on behalf of children whom he had represented in the domestic proceedings, in which he had been instructed by the guardian ad litem, after noting in particular that their mother had displayed no interest, that the local authorities had been criticised in the application and that there was no conflict of interests between the solicitor and the children.", "In İlhan v. Turkey ([GC], no. 22277/93, §§ 54-55, ECHR 2000 ‑ VII), where the direct victim, Abdüllatif İlhan, had suffered severe injuries as a result of ill-treatment at the hands of the security forces, the Court held that his brother could be regarded as having validly introduced the application, based on Articles 2 and 3 of the Convention, since it was clear from the facts that Abdüllatif İlhan had consented to the proceedings, there was no conflict of interests between himself and his brother, who had been closely concerned with the incident, and he was in a particularly vulnerable position because of his injuries.", "In Y.F. v. Turkey ( no. 24209/94, § 31, ECHR 2003 ‑ IX), in which a husband alleged under Article 8 of the Convention that his wife had been forced to undergo a gynaecological examination following her detention in police custody, the Court found that it was open to the applicant, as a close relative of the victim, to make a complaint concerning allegations by her of violations of the Convention, in particular having regard to her vulnerable position in the special circumstances of the case.", "94. Still in the context of Article 8 of the Convention, the Court has also accepted on several occasions that parents who did not have parental rights could apply to it on behalf of their minor children (see, in particular, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138 ‑ 39, ECHR 2000 ‑ VIII; Šneersone and Kampanella v. Italy, no. 14737/09, § 61, 12 July 2011; Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 146-47, 27 September 2011; A.K. and L. v. Croatia, no. 37956/11, §§ 48-50, 8 January 2013; and Raw and Others v. France, no. 10131/11, §§ 51-52, 7 March 2013). The key criterion for the Court in these cases was the risk that some of the children ’ s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights.", "95. Lastly, the Court recently adopted a similar approach in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, concerning a young man of Roma origin, seriously disabled and HIV positive, who died in hospital before the application was lodged and had no known next-of-kin and no State-appointed representative. In view of the exceptional circumstances of the case and the seriousness of the allegations, the Court recognised that the Centre for Legal Resources had standing to represent Valentin Câmpeanu. The Court emphasised that to find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level ( ibid., § 112).", "( b) Application to the present case", "96. The applicants alleged on Vincent Lambert ’ s behalf a violation of Articles 2, 3 and 8 of the Convention ( see paragraph 80 above ).", "97. The Court considers at the outset that the case-law concerning applications lodged on behalf of deceased persons is not applicable in the present case, since Vincent Lambert is not dead but is in a state described by the expert medical report as vegetative (see paragraph 40 above). The Court must therefore ascertain whether the circumstances before it are of the kind in which it has previously held that an application could be lodged in the name and on behalf of a vulnerable person without him or her having issued either a valid authority to act or instructions to the person purporting to act for him or her ( see paragraphs 93-95 above ).", "98. It notes that none of the cases in which it has accepted, by way of an exception, that an individual may act on behalf of another is comparable to the present case. The case in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, is to be distinguished from the present case in so far as the direct victim was dead and had no one to represent him. In the present case, while the direct victim is unable to express his wishes, several members of his close family wish to express themselves on his behalf, while defending diametrically opposed points of view. The applicants mainly rely on the right to life protected by Article 2, the “sanctity” of which was stressed by the Court in Pretty v. the United Kingdom (no. 2346/02, § 65, ECHR 2002 ‑ III), whereas the individual third ‑ party interveners (Rachel Lambert, François Lambert and Marie ‑ Geneviève Lambert) rely on the right to respect for private life and in particular the right of each individual, encompassed in the notion of personal autonomy ( ibid., § 61), to decide in which way and at which time his or her life should end (ibid. , § 67; see also Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011, and Koch, cited above, § 52).", "99. The applicants propose that the Court should apply the criteria set forth in Koch (cited above, § 44), which, in their submission, they satisfy on account of their close family ties, the fact that they have a sufficient personal or legal interest in the outcome of the proceedings and the fact that they have previously expressed an interest in the case.", "100. However, the Court observes that in Koch, cited above, the applicant argued that his wife ’ s suffering and the circumstances of her death had affected him to the extent of constituting a violation of his own rights under Article 8 of the Convention (§ 43). Thus, it was on that point that the Court was required to rule, and it was against that background that it considered that account should also be taken of the criteria developed in its case-law allowing a relative or heir to bring an action before it on the deceased person ’ s behalf (§ 44).", "101. In the Court ’ s view, these criteria are not applicable in the present case since Vincent Lambert is not dead and the applicants are seeking to raise complaints on his behalf.", "102. A review of the cases in which the Convention institutions have accepted that a third party may, in exceptional circumstances, act in the name and on behalf of a vulnerable person (see paragraphs 93-95 above ) reveals the following two main criteria: the risk that the direct victim will be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant.", "103. Applying these criteria to the present case, the Court does not discern any risk, firstly, that Vincent Lambert will be deprived of effective protection of his rights since, in accordance with its consistent case-law ( see paragraphs 90 above and 115 below ), it is open to the applicants, as Vincent Lambert ’ s close relatives, to rely before the Court, on their own behalf, on the right to life protected by Article 2.", "104. As regards the second criterion, the Court must next ascertain whether there is a convergence of interests between the applicants and Vincent Lambert. In that connection it notes that one of the key aspects of the domestic proceedings consisted precisely in determining Vincent Lambert ’ s wishes, given that Dr Kariger ’ s decision of 11 January 2014 was based on the certainty that Vincent Lambert “ had not wished, before his accident, to live under such conditions” (see paragraph 22 above). In its judgment of 24 June 2014, the Conseil d ’ État found, in the light of the testimony of Vincent Lambert ’ s wife and one of his brothers and the statements of several of his other siblings, that in basing his decision on that ground, Dr Kariger “[could not] be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident” (see paragraph 50 above). Accordingly, the Court does not consider it established that there is a convergence of interests between the applicants ’ assertions and what Vincent Lambert would have wished.", "105. The Court concludes that the applicants do not have standing to raise the complaints under Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert.", "106. It follows that these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 ( a) and must be rejected pursuant to Article 35 § 4.", "B. Rachel Lambert ’ s standing to act in the name and on behalf of Vincent Lambert", "1. The parties ’ submissions", "107. In a letter from her lawyer dated 9 July 2014, Rachel Lambert requested leave to represent her husband Vincent Lambert as a third-party intervener in the procedure. In support of her request she furnished a judgment of the Châlons ‑ en ‑ Champagne guardianship judge, dated 17 December 2008, giving her authority to represent her husband in matters arising out of their matrimonial regime, as well as two statements from a sister and half-brother of Vincent Lambert. According to those statements, Vincent Lambert would not have wished a decision in his case to be taken by his parents, from whom he was morally and physically estranged, but rather by his wife, who was his person of trust. She also produced a statement by her stepmother, who said that she had accompanied Rachel Lambert in July 2012 to a consultation with a professor of medicine at Liège University Hospital which was also attended by the first two applicants. During the consultation she and Rachel Lambert had stated Vincent Lambert ’ s wish not to live in an incapacitated state if such a situation should arise, and the second applicant had reportedly said that, if the question of euthanasia should arise, she would leave the decision to Rachel Lambert. In her observations, Rachel Lambert submitted that, since she was informed of her husband ’ s wishes, as corroborated by the statements she had produced, she alone had legal standing to act on behalf of Vincent Lambert and to represent him.", "108. The Government did not make any submissions on this point.", "109. The applicants submitted that the ruling of the guardianship judge produced by Rachel Lambert did not give her general authority to represent her husband, but merely authority to represent him in property-related matters. She could not therefore claim to be the only person to represent her husband before the Court. The applicants further maintained that the statements she had produced had no legal value; they also disputed the content of the statement by Rachel Lambert ’ s stepmother. They noted that Vincent Lambert had not designated a person of trust, and concluded that, as French law currently stood and in the absence of a full or partial guardianship order, Vincent Lambert was not represented by anyone in proceedings concerning him personally.", "2. The Court ’ s assessment", "110. The Court notes that no provision of the Convention permits a third-party intervener to represent another person before the Court. Furthermore, according to Rule 44 § 3 (a) of the Rules of Court, a third ‑ party intervener is any person concerned “ who is not the applicant”.", "111. Accordingly, the Court cannot but refuse Rachel Lambert ’ s request.", "C. Conclusion", "112. The Court has found that the applicants lacked standing to allege a violation of Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert (see paragraphs 105 ‑ 06 above), and has also rejected Rachel Lambert ’ s request to represent her husband as a third-party intervener (see paragraphs 110 ‑ 11 above).", "Nevertheless, the Court emphasises that, notwithstanding the findings it has just made regarding admissibility, it will examine below all the substantive issues arising in the present case under Article 2 of the Convention, given that they were raised by the applicants on their own behalf.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "113. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. They maintained that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014.", "114. The Government contested that argument.", "A. Admissibility", "115. The Court reiterates its case-law to the effect that the next-of-kin of a person whose death allegedly engages the responsibility of the State may claim to be victims of a violation of Article 2 of the Convention (see paragraph 90 above). Although Vincent Lambert is still alive, there is no doubt that if artificial nutrition and hydration were withdrawn, his death would occur within a short time. Accordingly, even if the violation is a potential or future one (see Tauira and 18 Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports 83 ‑ B, p. 112, at p. 131), the Court considers that the applicants, in their capacity as Vincent Lambert ’ s close relatives, may rely on Article 2.", "116. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground. The complaint must therefore be declared admissible.", "B. Merits", "1. The applicable rule", "117. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe ( see McCann and Others v. the United Kingdom, 27 September 1995, §§ 1 4 6 ‑ 4 7, Series A no. 324), enjoins the State not only to refrain from the “intentional” taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations) (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III).", "118. The Court will address these two aspects in turn and will begin by examining whether the present case involves the State ’ s negative obligations under Article 2.", "119. While the applicants acknowledged that the withdrawal of nutrition and hydration might be legitimate in cases of unreasonable obstinacy, and accepted that a legitimate distinction existed between, on the one hand, euthanasia and assisted suicide and, on the other hand, “ therapeutic abstention”, consisting in withdrawing or withholding treatment that had become unreasonable, they nevertheless argued repeatedly in their observations that, since these criteria were not met in their view, the present case concerned the intentional taking of life; they referred in this regard to the notion of “euthanasia”.", "120. The Government stressed that the aim of the medical decision was not to put an end to life, but to discontinue a form of treatment which had been refused by the patient or – where the patient was unable to express his or her wishes – which constituted, in the doctor ’ s view based on medical and non-medical factors, unreasonable obstinacy. They quoted the public rapporteur before the Conseil d ’ État, who in his submissions of 20 June 2014 had noted that, in discontinuing treatment, a doctor was not taking the patient ’ s life but was resolving to withdraw when there was nothing more to be done (see paragraph 45 above).", "121. The Court observes that the Leonetti Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it demonstrates unreasonable obstinacy. In its observations to the Conseil d ’ État, the National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. That prohibition is laid down in Article R. 4127-38 of the Public Health Code, which states that doctors may not take life intentionally (see paragraph 55 above).", "122. At the hearing of 14 February 2014 before the Conseil d ’ État, the public rapporteur cited the remarks made by the Minister of Health to the members of the Senate examining the Leonetti Bill:", "“While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.”", "123. In the case of Glass v. the United Kingdom ((dec.), no. 61827/00, 18 March 2003), the applicants complained under Article 2 of the Convention that a potentially lethal dose of diamorphine had been administered to their son, without their consent, by doctors in the hospital where he was being treated. The Court noted that the doctors had not deliberately sought to kill the child or to hasten his death, and examined the parents ’ complaints from the standpoint of the authorities ’ positive obligations (see also Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V).", "124. The Court notes that both the applicants and the Government make a distinction between the intentional taking of life and “therapeutic abstention” (see paragraphs 119-20 above), and stresses the importance of that distinction. In the context of the French legislation, which prohibits the intentional taking of life and permits life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances, the Court considers that the present case does not involve the State ’ s negative obligations under Article 2, and will examine the applicants ’ complaints solely from the standpoint of the State ’ s positive obligations.", "2. Whether the State complied with its positive obligations", "( a) The submissions of the parties and the third-party interveners", "( i) The applicants", "125. The applicants submitted first of all that the Leonetti Act was not applicable to Vincent Lambert, who, in their view, was neither sick nor at the end of life, but was severely disabled. They complained of the “confusion” arising from the Act on the following points: the notion of unreasonable obstinacy (and in particular the criterion concerning treatment having “ no other effect than to sustain life artificially”, which they considered to be extremely imprecise), and the classification of artificial nutrition and hydration as treatment rather than care. In their submission, Vincent Lambert ’ s enteral feeding was not a form of treatment that could be withdrawn, and the notion of unreasonable obstinacy did not apply to his medical situation.", "126. They argued that the process leading to the doctor ’ s decision of 11 January 2014 was incompatible with the State ’ s obligations flowing from Article 2 of the Convention. In their view, the procedure was not truly collective as it involved seeking opinions on a purely consultative basis, with the doctor alone taking the decision. They maintained that alternative systems were possible which would allow other doctors or the members of the family, in the absence of a person of trust, to participate in the decision ‑ making process. Lastly, they argued that the legislation should take into account the possibility of disagreement between family members and make provision at the very least for mediation.", "( ii) The Government", "127. The Government submitted that the Leonetti Act struck a balance between the right to respect for life and patients ’ right to consent to or refuse treatment. The definition of unreasonable obstinacy was based on the ethical principles of beneficence and non ‑ maleficence reiterated in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end-of-life situations”. In accordance with those principles, health-care professionals had an obligation to deliver only appropriate treatment and had to be guided solely by the benefit to the patient, which was to be assessed in overall terms. In that regard both medical and non ‑ medical factors, and in particular the patient ’ s wishes, were to be taken into account. They pointed out that when the bill had been debated in Parliament, an amendment seeking to exclude artificial nutrition and hydration from the scope of treatment had been rejected. They stressed that treatment also encompassed methods and interventions responding to a functional deficiency in the patient and involving the use of intrusive medical techniques.", "128. The Government emphasised that the French legislation provided for a number of procedural safeguards: consideration of the patient ’ s wishes and of the views of the person of trust, the family or those close to the patient and implementation of a collective procedure in which the family and those close to the patient were involved. Lastly, the doctor ’ s decision was subject to review by a judge.", "( iii) The third-party interveners", "( α ) Rachel Lambert", "129. Rachel Lambert submitted that the Leonetti Act subjected the doctor ’ s decision to numerous safeguards and balanced each individual ’ s right to receive the most suitable care with the right not to undergo treatment in circumstances amounting to unreasonable obstinacy. She stressed that the legislature had not sought to limit the recognition of patients ’ previously expressed wishes to cases in which they had designated a person of trust or drawn up advance directives; where this was not the case, the views of the family were sought in order, first and foremost, to establish what the patient would have wanted.", "130. Referring to the collective procedure implemented in the present case, she pointed out that Dr Kariger had consulted six doctors (three of them from outside the hospital), had convened a meeting with virtually all the care staff and all the doctors and had held two meetings with the family. His decision had been reasoned at length and bore witness to the professionalism of his approach.", "( β ) François Lambert and Marie-Geneviève Lambert", "131. François Lambert and Marie-Geneviève Lambert submitted that the doctor ’ s decision had been taken in accordance with the Leonetti Act, referred to above, the provisions of which they recapitulated. They stressed that the data emerging from the expert medical report ordered by the Conseil d ’ État were fully consistent with the notion of treatment serving solely to sustain life artificially, observing that it was Vincent Lambert ’ s inability to eat and drink by himself, without medical assistance in the form of enteral nutrition and hydration, that would cause his death.", "132. They submitted that the decision ‑ making process in the present case had been particularly lengthy, meticulous and respectful of the rights of all concerned, of the medical and paramedical opinions sought and of the views of the family members who had been invited to participate (especially the applicants, who had been assisted by a doctor of their choosing throughout the process) and who had been kept fully informed at every stage. In their view, the final decision had been taken in accordance with the process required by law and by the Convention, as set out in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end ‑ of ‑ life situations”.", "( γ) National Union of Associations of Head Injury and Brain Damage Victims ’ Families ( UNAFTC )", "133. UNAFTC echoed the concerns of the families and establishments it represented, and argued that patients in a chronic vegetative or minimally conscious state were not in an end-of-life situation and were not being kept alive artificially, and that where a person ’ s condition was not life ‑ threatening, artificial feeding and hydration could not be deemed to constitute treatment that could be withdrawn. UNAFTC submitted that a patient ’ s wishes could not be established on the basis of spoken remarks reported by some of the family members, and when in doubt, life should take precedence. At all events, in the absence of advance directives and of a person of trust, no decision to withdraw treatment could be taken in the absence of consensus within the family.", "( δ) Amréso-Bethel", "134. The association Amréso ‑ Bethel, which runs a care unit for patients in a minimally conscious or chronic vegetative state, provided details of the care dispensed to its patients.", "( ε) Human Rights Clinic", "135. In view of the multitude of approaches across the world to end ‑ of ‑ life issues and the differences regarding the circumstances in which passive euthanasia was permitted, the Human Rights Clinic submitted that States should be allowed a margin of appreciation in striking a balance between patients ’ personal autonomy and the protection of their lives.", "( b) The Court ’ s assessment", "( i) General considerations", "( α ) Existing case-law", "136. The Court has never ruled on the question which is the subject of the present application, but it has examined a number of cases concerning related issues.", "137. In a first group of cases, the applicants or their relatives invoked the right to die, relying on various Articles of the Convention.", "In Sanles Sanles, cited above, the applicant asserted, on behalf of her brother-in-law, who was tetraplegic and wished to end his life with the assistance of third parties and who died before the application was lodged, the right to die with dignity, relying on Articles 2, 3, 5, 6, 8, 9 and 14 of the Convention. The Court rejected the application as being incompatible ratione personae with the provisions of the Convention.", "In Pretty, cited above, the applicant was in the terminal stages of an incurable neurodegenerative disease and complained, relying on Articles 2, 3, 8, 9 and 14 of the Convention, that her husband could not help her to commit suicide without facing prosecution by the United Kingdom authorities. The Court found no violation of the provisions in question.", "Haas and Koch, cited above, concerned assisted suicide, and the applicants relied on Article 8 of the Convention. In Haas, the applicant, who had been suffering for a long time from a serious bipolar affective disorder, wished to end his life and complained of being unable to obtain the lethal substance required for that purpose without a medical prescription; the Court held that there had been no violation of Article 8. In Koch, the applicant alleged that the refusal to allow his wife (who was paralysed and needed artificial ventilation) to acquire a lethal dose of medication so that she could take her own life had breached her right, and his, to respect for their private and family life. He also complained of the domestic courts ’ refusal to examine his complaints on the merits, and the Court found a violation of Article 8 on that point only.", "138. In a second group of cases, the applicants took issue with the administering or withdrawal of treatment.", "In Glass, cited above, the applicants complained that diamorphine had been administered to their sick child by hospital doctors without their consent, and of the “ do not resuscitate ” order entered in his medical notes. In its decision of 18 March 2003, cited above, the Court found that their complaint under Article 2 of the Convention was manifestly ill-founded; in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention.", "In Burke v. the United Kingdom ((dec.), no. 19807/06, 11 July 2006), the applicant suffered from an incurable degenerative brain condition and feared that the guidance applicable in the United Kingdom could lead in due course to the withdrawal of his artificial nutrition and hydration. The Court declared his application, lodged under Articles 2, 3 and 8 of the Convention, inadmissible as being manifestly ill-founded.", "Lastly, in its decision in Ada Rossi and Others, cited above, the Court declared incompatible ratione personae an application lodged by individuals and associations complaining, under Articles 2 and 3 of the Convention, of the potentially adverse effects for them of execution of a judgment of the Italian Court of Cassation authorising the discontinuation of the artificial nutrition and hydration of a young girl in a vegetative state. [1]", "139. The Court observes that, with the exception of the violations of Article 8 in Glass and Koch, cited above, it did not find a violation of the Convention in any of these cases. [2]", "( β ) The context", "140. Article 2 requires the State to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, cited above, § 36, and the decision in Powell, cited above); in the public-health sphere, these positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Glass, cited above; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130).", "141. The Court stresses that the issue before it in the present case is not that of euthanasia, but rather the withdrawal of life ‑ sustaining treatment (see paragraph 124 above).", "142. In Haas ( cited above, § 54), the Court reiterated that the Convention had to be read as a whole (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 83, ECHR 2009). In Haas (cited above, § 54) the Court considered that it was appropriate, in the context of examining a possible violation of Article 8, to refer to Article 2 of the Convention. The Court considers that the converse also applies : in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses. In Pretty ( cited above, § 67) the Court was not prepared to exclude that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention. In Haas ( cited above, § 51), it asserted that an individual ’ s right to decide in which way and at which time his or her life should end was one of the aspects of the right to respect for private life.", "The Court refers in particular to paragraphs 63 and 65 of the judgment in Pretty, where it stated as follows.", "“ ... In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person ’ s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life ...", "The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.”", "143. The Court will take these considerations into account in examining whether the State complied with its positive obligations flowing from Article 2. It further observes that, in addressing the question of the administering or withdrawal of medical treatment in Glass and Burke, cited above, it took into account the following factors :", "(a) the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2 ( see Glass, cited above);", "(b) whether account had been taken of the applicant ’ s previously expressed wishes and those of the persons close to him or her, as well as the opinions of other medical personnel ( see Burke, cited above);", "(c) the possibility to approach the courts in the event of doubts as to the best decision to take in the patient ’ s interests (ibid.).", "The Court will take these factors into consideration in examining the present case. It will also take account of the criteria laid down in the Council of Europe ’ s “ Guide on the decision ‑ making process regarding medical treatment in end-of-life situations ” (see paragraphs 60-68 above).", "( γ ) The margin of appreciation", "144. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15, and that it construes strictly the exceptions defined therein (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174-77, ECHR 2011 ). However, in the context of the State ’ s positive obligations, when addressing complex scientific, legal and ethical issues concerning in particular the beginning or the end of life, and in the absence of consensus among the member States, the Court has recognised that the latter have a certain margin of appreciation.", "First of all the Court observes that in Vo (which concerned the acquittal on a charge of unintentional homicide of the doctor responsible for the death of the applicant ’ s unborn child), in examining the point at which life begins from the standpoint of Article 2 of the Convention, it concluded that this matter came within the States ’ margin of appreciation in this sphere. It took into consideration the absence of a common approach among the Contracting States and of a European consensus on the scientific and legal definition of the beginning of life ( cited above, § 82).", "The Court reiterated this approach in, inter alia, Evans v. the United Kingdom ([GC], no. 6339/05, §§ 54-56, ECHR 2007 ‑ I, concerning the fact that domestic law permitted the applicant ’ s former partner to withdraw his consent to the storage and use of embryos created jointly by them) and in A, B and C v. Ireland ([GC], no. 25579/05, § 237, ECHR 2010, in which the applicants essentially complained under Article 8 of the Convention of the prohibition on abortion in Ireland for health and well ‑ being reasons).", "145. On the question of assisted suicide the Court noted, in the context of Article 8 of the Convention, that there was no consensus among the member States of the Council of Europe as to an individual ’ s right to decide in which way and at which time his or her life should end, and therefore concluded that the States ’ margin of appreciation in this area was “considerable” ( see Haas, cited above, § 55, and Koch, cited above, § 70).", "146. The Court also stated, in general terms, in Ciechońska v. Poland ( no. 19776/04, § 65, 14 June 2011), concerning the authorities ’ responsibility for the accidental death of the applicant ’ s husband, that the choice of means for ensuring the positive obligations under Article 2 was in principle a matter that fell within the State ’ s margin of appreciation.", "147. The Court notes that no consensus exists among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appear to allow it. While the detailed arrangements governing the withdrawal of treatment vary from one country to another, there is nevertheless consensus as to the paramount importance of the patient ’ s wishes in the decision-making process, however those wishes are expressed (see paragraphs 74 ‑ 7 5 above).", "148. Accordingly, the Court considers that in this sphere concerning the end of life, as in that concerning the beginning of life, States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial life ‑ sustaining treatment and the detailed arrangements governing such withdrawal, but also as regards the means of striking a balance between the protection of patients ’ right to life and the protection of their right to respect for their private life and their personal autonomy (see, mutatis mutandis, A, B and C v. Ireland, cited above, § 237). However, this margin of appreciation is not unlimited (ibid. , § 238) and the Court reserves the power to review whether or not the State has complied with its obligations under Article 2.", "( ii) Application to the present case", "149. The applicants alleged that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014. In their view, these shortcomings were the result of the national authorities ’ failure to fulfil their duty of protection under Article 2 of the Convention.", "( α ) The legislative framework", "150. The applicants complained of a lack of precision and clarity in the legislation, which, in their submission, was not applicable to the case of Vincent Lambert, who was neither sick nor at the end of his life. They further maintained that the legislation did not define with sufficient precision the concepts of unreasonable obstinacy and treatment that could be withdrawn.", "151. The Court has regard to the legislative framework established by the Public Health Code (hereinafter “the Code”) as amended by the Leonetti Act (see paragraphs 52 ‑ 54 above). It further reiterates that interpretation is inherent in the work of the judiciary ( see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 85, 20 October 2011). It observes that, prior to the rulings given in the present case, the French courts had never been called upon to interpret the provisions of the Leonetti Act, although it had been in force for nine years. In the present case the Conseil d ’ État had the task of clarifying the scope of application of the Act and defining the concepts of “treatment” and “unreasonable obstinacy” (see below).", "The scope of application of the Act", "152. In its ruling of 14 February 2014, the Conseil d ’ État determined the scope of application of the Act. It held that it was clear from the very wording of the applicable provisions, and from the parliamentary proceedings prior to enactment of the legislation, that the provisions in question were general in scope and were applicable to all users of the health system, whether or not the patient was in an end - of - life situation (see paragraph 33 above).", "153. The Court notes that in his observations to the Conseil d ’ État Mr Jean Leonetti, the rapporteur for the Act, stated in his capacity as amicus curiae that it was applicable to patients who had brain damage and thus suffered from a serious condition that was incurable in the advanced stages, but who were not necessarily “at the end of life”. For that reason the legislature, in the title of the Act, had referred to “patients ’ rights and end-of-life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ” (see, to similar effect, the observations of the National Medical Academy, paragraph 44 above).", "The concept of treatment", "154. The Conseil d ’ État, in its ruling of 14 February 2014, interpreted the concept of treatment that could be withdrawn or limited. It held, in the light of Articles L. 1110 ‑ 5 and 1111 ‑ 4 of the Code, cited above, and of the parliamentary proceedings, that the legislature had intended to include among such forms of treatment all acts seeking to maintain the patient ’ s vital functions artificially, and that artificial nutrition and hydration fell into that category of acts. The amicus curiae submissions to the Conseil d ’ État agreed on this point.", "155. The Court notes that the Council of Europe ’s “Guide on the decision ‑ making process regarding medical treatment in end ‑ of ‑ life situations” addresses these issues. The Guide specifies that treatment covers not only interventions whose aim is to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have a bearing only on the symptoms and not on the aetiology of the illness, or which are responses to an organ dysfunction. According to the Guide, artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes). The Guide observes that differences in approach exist between countries. Some regard artificial nutrition and hydration as a form of treatment that may be limited or withdrawn in the circumstances and in accordance with the guarantees provided for in domestic law. The considerations to be taken into account in this regard are the patient ’ s wishes and whether or not the treatment is appropriate in the situation in question. In other countries they are regarded as a form of care meeting the individual ’ s basic needs which cannot be withdrawn unless the patient, in the terminal phase of an end ‑ of ‑ life situation, has expressed a wish to that effect (see paragraph 61 above).", "The concept of unreasonable obstinacy", "156. Under the terms of Article L. 1110 ‑ 5 of the Code, treatment will amount to unreasonable obstinacy if it is futile or disproportionate or has “no other effect than to sustain life artificially” (see paragraph 53 above). It is this last criterion which was applied in the present case and which the applicants consider to be imprecise.", "157. In his observations to the Conseil d ’ État in an amicus curiae capacity, Mr Leonetti stated that this wording, which was stricter than the wording originally envisaged ( treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others” (see paragraph 44 above). In the same vein, the National Medical Council emphasised the importance of the notion of temporality, observing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent (ibid.)", "158. In its judgment of 24 June 2014, the Conseil d ’ État detailed the factors to be taken into account by the doctor in assessing whether the criteria for unreasonable obstinacy were met, while making clear that each situation had to be considered on its own merits. These were: the medical factors (which had to cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition, his or her degree of suffering and the clinical prognosis) and the non ‑ medical factors, namely the patient ’ s wishes, however expressed, to which the doctor had to “attach particular importance”, and the views of the person of trust, the family or those close to the patient.", "159. The Court notes that the Conseil d ’ État established two important safeguards in that judgment. Firstly, it stated that “the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy”. Secondly, it stressed that where a patient ’ s wishes were not known, they could not be assumed to consist in a refusal to be kept alive ( see paragraph 48 above ).", "160. On the basis of this analysis, the Court cannot subscribe to the applicants ’ arguments. It considers that the provisions of the Leonetti Act, as interpreted by the Conseil d ’ État, constitute a legal framework which is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decisions taken by doctors in situations such as that in the present case. The Court therefore concludes that the State put in place a regulatory framework apt to ensure the protection of patients ’ lives ( see paragraph 14 0 above ).", "( β ) The decision-making process", "161. The applicants complained of the decision-making process, which, in their view, should have been genuinely collective or at the very least have provided for mediation in the event of disagreement.", "162. The Court notes at the outset that neither Article 2 nor its case-law can be interpreted as imposing any requirements as to the procedure to be followed with a view to securing a possible agreement. It points out that in Burke, cited above, it found the procedure consisting in determining the patient ’ s wishes and consulting those close to him or her as well as other medical personnel to be compatible with Article 2 (see paragraph 143 above).", "163. The Court observes that, although the procedure under French law is described as “collective” and includes several consultation phases (with the care team, at least one other doctor, the person of trust, the family or those close to the patient), it is the doctor in charge of the patient alone who takes the decision. The patient ’ s wishes must be taken into account and the decision itself must be accompanied by reasons and is added to the patient ’ s medical file.", "164. In his observations as amicus curiae, Mr Jean Leonetti pointed out that the Act gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified.", "165. It is clear from the comparative-law materials available to the Court that in those countries which authorise the withdrawal of treatment, and where the patient has not drawn up any advance directives, there exists a great variety of arrangements governing the taking of the final decision to withdraw treatment. It may be taken by the doctor (this is the most common situation), jointly by the doctor and the family, by the family or legal representative, or by the courts ( see paragraph 75 above ).", "166. The Court observes that the collective procedure in the present case lasted from September 2013 to January 2014 and that, at every stage of its implementation, it exceeded the requirements laid down by law. Whereas the procedure provides for the consultation of one other doctor and, where appropriate, a second one, Dr Kariger consulted six doctors, one of whom was designated by the applicants. He convened a meeting of virtually the entire care team and held two meetings with the family which were attended by Vincent Lambert ’ s wife, his parents and his eight siblings. Following those meetings Vincent Lambert ’ s wife and six of his brothers and sisters argued in favour of withdrawing treatment, as did five of the six doctors consulted, while the applicants opposed such a move. The doctor also held discussions with François Lambert, Vincent Lambert ’ s nephew. His decision, which ran to thirteen pages (an abridged seven-page version of which was read out to the family) provided very detailed reasons. The Conseil d ’ État held in its judgment of 24 June 2014 that it was not tainted by any irregularity (see paragraph 50 above).", "167. The Conseil d ’ État found that the doctor had complied with the requirement to consult the family and that it had been lawful for him to take his decision in the absence of unanimity among the family members. The Court notes that French law as it currently stands provides for the family to be consulted (and not for it to participate in taking the decision), but does not make provision for mediation in the event of disagreement between family members. Likewise, it does not specify the order in which family members ’ views should be taken into account, unlike in some other countries.", "168. The Court notes the absence of consensus on this subject ( see paragraph 16 5 above ) and considers that the organisation of the decision ‑ making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the State ’ s margin of appreciation. It notes that the procedure in the present case was lengthy and meticulous, exceeding the requirements laid down by the law, and considers that, although the applicants disagree with the outcome, that procedure satisfied the requirements flowing from Article 2 of the Convention (see paragraph 143 above).", "( γ ) Judicial remedies", "169. Lastly, the Court will examine the remedies that were available to the applicants in the present case. It observes that the Conseil d ’ État, called upon for the first time to rule on an appeal against a decision to withdraw treatment under the Leonetti Act, provided some important clarifications in its rulings of 14 February and 24 June 2014 concerning the scope of the review carried out by the urgent-applications judge of the administrative court in cases such as the present one.", "170. The applicants had lodged an urgent application with the administrative court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code. This Article provides that the judge, “when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority”. When dealing with an application on this basis, the urgent ‑ applications judge of the administrative court normally rules alone and as a matter of urgency, and may order interim measures on the basis of a “plain and obvious” test ( manifest unlawfulness).", "171. The Court notes that, as defined by the Conseil d ’ État (see paragraph 32 above), the role of the urgent-applications judge entails the power not only to suspend implementation of the doctor ’ s decision but also to conduct a full review of its lawfulness (and not just apply the test of manifest unlawfulness), if necessary sitting as a member of a bench of judges and, if needs be, after ordering an expert medical report and seeking the opinions of persons acting in an amicus curiae capacity.", "172. The Conseil d ’ État also specified in its judgment of 24 June 2014 that the particular role of the judge in such cases meant that he or she had to examine – in addition to the arguments alleging that the decision in question was unlawful – any arguments to the effect that the legislative provisions that had been applied were incompatible with the Convention.", "173. The Court notes that the Conseil d ’ État examined the case sitting as a full court (the seventeen-member Judicial Assembly), which is highly unusual in injunction proceedings. In its ruling of 14 February 2014, it stated that the assessment carried out at Liège University Hospital dated from two and a half years previously, and considered it necessary to have the fullest information possible on Vincent Lambert ’ s state of health. It therefore ordered an expert medical report, which it entrusted to three recognised specialists in neuroscience. Furthermore, in view of the scale and difficulty of the issues raised by the case, it requested the National Medical Academy, the National Ethics Advisory Committee, the National Medical Council and Mr Jean Leonetti to submit general observations to it as amici curiae, in order to clarify in particular the concepts of unreasonable obstinacy and sustaining life artificially.", "174. The Court notes that the expert report was prepared in great depth. The experts examined Vincent Lambert on nine occasions, conducted a series of tests and familiarised themselves with the entire medical file and with all the items in the judicial file of relevance for their report. Between 24 March and 23 April 2014 they also met all the parties concerned (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital).", "175. In its judgment of 24 June 2014, the Conseil d ’ État began by examining the compatibility of the relevant provisions of the Public Health Code with Articles 2, 8, 6 and 7 of the Convention (see paragraph 47 above), before assessing the conformity of Dr Kariger ’ s decision with the provisions of the Code (see paragraphs 48 ‑ 50 above). Its review encompassed the lawfulness of the collective procedure and compliance with the substantive conditions laid down by law, which it considered – particularly in the light of the findings of the expert report – to have been satisfied. It noted in particular that it was clear from the experts ’ findings that Vincent Lambert ’ s clinical condition corresponded to a chronic vegetative state, that he had sustained serious and extensive injuries whose severity, coupled with the period of five and a half years that had passed since the accident, led to the conclusion that it was irreversible and that there was a “poor clinical prognosis”. In the view of the Conseil d ’ État, these findings confirmed those made by Dr Kariger.", "176. The Court further observes that the Conseil d ’ État, after stressing “the particular importance” which the doctor must attach to the patient ’ s wishes (see paragraph 48 above), sought to ascertain what Vincent Lambert ’ s wishes had been. As the latter had not drawn up any advance directives or designated a person of trust, the Conseil d ’ État took into consideration the testimony of his wife, Rachel Lambert. It noted that she and her husband, who were both nurses with experience of patients in resuscitation and those with multiple disabilities, had often discussed their professional experiences and that on several such occasions Vincent Lambert had voiced the wish not to be kept alive artificially in a highly dependent state (see paragraph 50 above). The Conseil d ’ État found that those remarks – the tenor of which was confirmed by one of Vincent Lambert ’ s brothers – had been reported by Rachel Lambert in precise detail and with the corresponding dates. It also took account of the fact that several of Vincent Lambert ’ s other siblings had stated that these remarks were in keeping with their brother ’ s personality, past experience and views, and noted that the applicants did not claim that he would have expressed remarks to the contrary. The Conseil d ’ État observed, lastly, that the consultation of the family, prescribed by law, had taken place (ibid.).", "177. The applicants submitted, relying on Article 8 of the Convention, that the Conseil d ’ État should not have taken into consideration Vincent Lambert ’ s spoken remarks, which they considered to be too general.", "178. The Court points out first of all that it is the patient who is the principal party in the decision-making process and whose consent must remain at its heart; this is true even where the patient is unable to express his or her wishes. The Council of Europe ’ s “Guide on the decision ‑ making process regarding medical treatment in end-of-life situations” recommends that the patient should be involved in the decision-making process by means of any previously expressed wishes, which may have been confided orally to a family member or close friend (see paragraph 63 above).", "179. The Court also observes that, according to the comparative ‑ law materials available to it, in the absence of advance directives or of a “living will”, a number of countries require that efforts be made to ascertain the patient ’ s presumed wishes, by a variety of means (statements of the legal representative or the family, other factors testifying to the patient ’ s personality and beliefs, and so forth ).", "180. Lastly, the Court points out that in its judgment in Pretty ( cited above, § 63), it recognised the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life. Accordingly, it takes the view that the Conseil d ’ État was entitled to consider that the testimony submitted to it was sufficiently precise to establish what Vincent Lambert ’ s wishes had been with regard to the withdrawal or continuation of his treatment.", "( δ ) Final considerations", "181. The Court is keenly aware of the importance of the issues raised by the present case, which concerns extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterates that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient ’ s wishes in accordance with national law. The Court ’ s role consisted in ascertaining whether the State had fulfilled its positive obligations under Article 2 of the Convention.", "On the basis of that approach, the Court has found both the legislative framework laid down by domestic law, as interpreted by the Conseil d ’ État, and the decision-making process, which was conducted in meticulous fashion in the present case, to be compatible with the requirements of Article 2. As to the judicial remedies that were available to the applicants, the Court has reached the conclusion that the present case was the subject of an in ‑ depth examination in the course of which all points of view could be expressed and all aspects were carefully considered, in the light of both a detailed expert medical report and general observations from the highest ‑ ranking medical and ethical bodies.", "Consequently, the Court concludes that the domestic authorities complied with their positive obligations flowing from Article 2 of the Convention, in view of the margin of appreciation left to them in the present case.", "(ε ) Conclusion", "182. It follows that there would be no violation of Article 2 of the Convention in the event of implementation of the Conseil d ’ État judgment of 24 June 2014.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "183. The applicants maintained that they were potentially victims of a violation of their right to respect for their family life with their son and brother, in breach of Article 8 of the Convention.", "184. The Court is of the view that this complaint is absorbed by those raised by the applicants under Article 2 of the Convention. In view of its finding concerning that Article (see paragraph 18 2 above), the Court considers that it is not necessary to rule separately on this complaint.", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "185. The applicants further complained that the doctor who took the decision of 11 January 2014 was not impartial, as he had previously taken the same decision, and that the expert medical report ordered by the Conseil d ’ État had not been fully adversarial.", "They relied on Article 6 § 1 of the Convention, the relevant parts of which provide :", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "186. Even assuming Article 6 § 1 to be applicable to the procedure resulting in the doctor ’ s decision of 11 January 2014, the Court considers that these complaints, to the extent that they have not been dealt with already under Article 2 of the Convention (see paragraphs 150 ‑ 1 81 above), are manifestly ill ‑ founded.", "187. It follows that this aspect of the application must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born in October 1971 and lives in Wiltshire.", "12. The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties ’ oral evidence (see paragraph 20 below), are as follows.", "A. The IVF treatment", "13. On 12 July 2000 the applicant and her partner, J. (born in November 1976), commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been referred for treatment at the clinic five years earlier, when she was married, but had not pursued it because of the breakdown of her marriage.", "14. On 10 October 2001 the applicant and J. were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly.", "15. The consultation of 10 October 2001 lasted approximately an hour in total. A nurse explained that the applicant and J. would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant ’ s uterus (see paragraph 37 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J. reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child.", "16. Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 37 below).", "Immediately beneath the title to the form appeared the following words:", "“NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.”", "J. ticked the boxes which recorded his consent to use his sperm to fertilise the applicant ’ s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed “Storage”, opting for the storage of embryos developed in vitro from his sperm for the maximum period of ten years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J. , she ticked the boxes providing for the treatment of herself and for the treatment “of myself with a named partner.”", "17. On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus.", "B. The High Court proceedings", "18. In May 2002 the relationship broke down. The future of the embryos was discussed between the parties. On 4 July 2002 J. wrote to the clinic to notify it of the separation and to state that the embryos should be destroyed.", "19. The clinic notified the applicant of J. ’ s withdrawal of consent to further use of the embryos and informed her that it was now under a legal obligation to destroy them, pursuant to paragraph 8(2) of Schedule 3 to the 1990 Act (see paragraph 37 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J. to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14 of the Convention. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings.", "20. The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65- page judgment ( Evans v. Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam)), he dismissed the applicant ’ s claims.", "21. He concluded that under the terms of the 1990 Act, and as a matter of public policy, it had not been open to J. to give an unequivocal consent to the use of the embryos irrespective of any change of circumstance, and that, as a matter of fact, J. had only ever consented to his treatment “together” with the applicant, and not to her continuing treatment on her own in the event that their relationship ended. Wall J thus rejected the applicant ’ s submission that J. was estopped from withdrawing his consent, finding that both the applicant and J. had embarked on the treatment on the basis that their relationship would continue. On 10 October 2001 J. had been doing his best to reassure the applicant that he loved her and wanted to be the father of her children; giving a truthful expression of his feelings at that moment, but not committing himself for all time. Wall J observed that in the field of personal relationships, endearments and reassurances of this kind were commonplace, but they did not – and could not – have any permanent, legal effect. In undergoing IVF with J. , the applicant had taken the only realistic course of action open to her. Wall J continued:", "“However, even if I am wrong about that, and even if an estoppel is capable of existing in the face of the Act, I do not, for the reasons I have given, think it would be unconscionable to allow [J. ] to withdraw his consent. It is a right which the Statute gives him within the clear scheme operated by Parliament. It was the basis upon which he gave his consent on 10 October 2001. It is perfectly reasonable for him, in the changed circumstances which appertain, not to want to father a child by Ms Evans.”", "22. As to the applicant ’ s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant ’ s right to respect for family life was not engaged. He accepted that the relevant provisions of the 1990 Act interfered with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child. He considered it entirely appropriate that the Act required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman.", "23. Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 37 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man.", "“If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.”", "C. The Court of Appeal ’ s judgment", "24. The applicant ’ s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 ( Evans v. Amicus Healthcare Ltd [2004] EWCA Civ 727).", "The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. Like Wall J, the Court of Appeal found that J. had only ever consented to undergoing “treatment together” with the applicant, and had never consented to the applicant using the jointly created embryos alone. Once the relationship had broken down, and J. had indicated that he did not wish the embryos to be preserved or used by the applicant, they were no longer being treated “together”. The court rejected the applicant ’ s argument that J. had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J. , and the other witnesses (see paragraph 20 above). The Court of Appeal was also informed by J. ’ s counsel that J. ’ s clear position in withdrawing his consent was one of fundamental rather than purely financial objection.", "25. While there was an interference with the private lives of the parties, Lords Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons.", "“The less drastic means contended for here is a rule of law making the withdrawal of [J. ’ s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J. ’ s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the [ Human Fertilisation and Embryology Authority ] or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ...", "... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant ’ s] otherwise intractable biological handicap, by making the withdrawal of the man ’ s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.”", "26. Lady Justice Arden stated, by way of introduction:", "“The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.”", "She continued :", "“Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... Parliament has taken the view that no one should have the power to override the need for a genetic parent ’ s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J. ’ s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J. ]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J. ’ s] right is justified on the ground that interference is necessary to protect [the applicant ’ s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified.", "... The interference with [the applicant ’ s] private life is also justified under Article 8 § 2 because, if [the applicant ’ s] argument succeeded, it would amount to interference with the genetic father ’ s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J. ], especially as in the present case it will probably involve financial responsibility in law for the child as well.”", "27. On the issue of discrimination, Lords Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J ’ s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests.", "28. On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal ’ s judgment." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Domestic law: the 1990 Act", "1. The Warnock Report", "29. The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of the philosopher Dame Mary Warnock DBE to “consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations ”.", "30. The Committee reported in July 1984 (Cmnd 9314). At that time, the technique of freezing human embryos for future use was in its infancy, but the Committee noted that it had already occurred and had resulted in one live birth, and recommended that clinical use of frozen embryos should continue to be developed under review by the licensing body (see paragraph 10.3 of the report). It went on, however, to recognise the potential problems arising from the possibility of prolonged storage of human embryos, and recommended that a couple should be permitted to store embryos for their own future use for a maximum of ten years, after which time the right of use or disposal should pass to the storage authority (paragraph 10.10). It further recommended that where, as a result, for example, of marital breakdown, a couple failed to agree how the shared embryo should be used, the right to determine the use or disposal of the embryo should pass to the storage authority ( paragraph 10.13). Consistent with its view that there should be no right of ownership in a human embryo ( paragraph 10.11), the Committee did not consider that one party to the disagreement should be able to require use of the embryo against the wishes of the other.", "2. Consultation and the adoption of legislation", "31. The Warnock Committee ’ s recommendations, so far as they related to IVF treatment, were set out in a Green (consultation) Paper issued for public consultation. It was noted in the Green Paper (at paragraph 35) that few comments had been received about the Committee ’ s recommendation that the storage authority should assume the rights of use or disposal of an embryo where there was no agreement between the couple, and stressed that although this situation was unlikely to arise very often it was important that there should be a “clear basis” for its resolution.", "32. After receipt of representations from interested parties, the proposals on IVF were included in a White Paper (report), Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper recorded the Warnock Committee ’ s recommendation that the right of use or disposal of a frozen embryo should pass to the storage authority in the event of disagreement between the couple concerned ( paragraphs 50-51), but continued:", "“Broadly, those who believe storage should be permitted were content with the Warnock recommendations. There were some, however, who considered that the ‘ storage authority ’ should not have the right of use or disposal unless specifically granted this by the donors. The Government shares this latter view and has concluded that the law should be based on the clear principle that the donor ’ s wishes are paramount during the period in which embryos or gametes may be stored; and that after the expiry of this period, they may only be used by the licence holder for other purposes if the donor ’ s consent has been given to this. ”", "The White Paper indicated the Government ’ s decision that the maximum storage period for embryos should be five years ( paragraph 54). Then, in a section entitled “Donor ’ s Consent”, it set out the policy that a donor should have the right to vary or withdraw consent to the transfer of an embryo to a woman at any time before the embryo was used:", "“55. The complexities connected with storage underline the importance of ensuring that, when couples embark on IVF treatment, or when gametes are being donated, the individuals involved have given their consent to the uses to which their gametes or embryos will be put.", "56. The Bill will provide that gametes or embryos may only be stored with the signed consent of the donors; and may be used only by the licence holder responsible for storage for the purposes specified in that consent (e.g. for therapeutic treatment, [or for research]). Those giving consent should be provided with information about the techniques for which their gametes/embryos might be used and about the legal implications of their decision. As a matter of good practice, counselling should also be available to them.", "57. Donors would have the right to vary or withdraw their consent before the gametes/embryos were used, but the onus would be on them to notify any change to the licence holder. A licence holder receiving notice of such a change will have a duty to inform any other licence holder to whom he has supplied the donor ’ s gametes. (This situation might arise, for example, if a sperm bank supplied sperm to one or more treatment centres.) In the absence of any notification to the contrary, or notification of death, the licence holder must assume that the original consent still holds, and must act accordingly during the storage period. When this ends, he may only use or dispose of the embryos or gametes in accordance with the specified wishes of the donors. If these are not clear, the embryo or gametes should be removed from storage and left to perish.", "58. As far as embryos are concerned, these may not be implanted into another woman, nor used for research, nor destroyed (prior to the expiry of the storage time limit) in the absence of the consent of both donors. If there is disagreement between the donors the licence holder will need to keep the embryo in storage until the end of the storage period, after which time, if there is still no agreement, the embryo should be left to perish.”", "33. Following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990. The Bill substantially reflected the terms of the White Paper. The provisions dealing with consent did not prove controversial during its passage through Parliament.", "3. The 1990 Act", "34. In R. v. Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance ) [2003] UKHL 13, Lord Bingham described the background to and general approach of the 1990 Act as follows.", "“ ... There is no doubting the sensitivity of the issues. There were those who considered the creation of embryos, and thus of life, in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether. There were others who considered that these new techniques, by offering means of enabling the infertile to have children and increasing knowledge of congenital disease, had the potential to improve the human condition, and this view also did not lack religious and moral arguments to support it. Nor can one doubt the difficulty of legislating against a background of fast-moving medical and scientific development. It is not often that Parliament has to frame legislation apt to apply to developments at the advanced cutting edge of science.", "... The solution recommended and embodied in the 1990 Act was not to ban all creation and subsequent use of live human embryos produced in vitro but instead, and subject to certain express prohibitions of which some have been noted above, to permit such creation and use subject to specified conditions, restrictions and time limits and subject to the regimes of control ... It is ... plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal), it otherwise opted for a strict regime of control. No activity within this field was left unregulated. There was to be no free for all. ”", "35. By section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3(1) is an offence (created by section 41(2)(a) of the Act ).", "36. By section 14(4) of the Act, “the statutory storage period in respect of embryos is such period not exceeding five years as the licence may specify”. This provision was amended by the Human Fertilisation and Embryology (Statutory Storage Period for Embryos) Regulations 1996, which came into force on 1 May 1996, and which provide, inter alia, that where, in the opinion of two medical practitioners, the woman in whom the embryo may be placed, or, where she is not one of the persons whose gametes are used to create the embryo, one of those persons, is or is likely to become completely infertile prematurely, the storage period is extended until that woman is 55. Where, in the opinion of a single medical practitioner, the woman in whom the embryo may be placed, or one of the gamete providers, has or is likely to have significantly impaired fertility or has a significant genetic defect, the storage period is extended to ten years, or until that woman is 55, whichever period is the shorter.", "Both of the persons whose gametes are used to create the embryos are required to confirm in writing that they do not object to extended storage for the purposes of future treatment. The woman in whom any such embryo may be placed must be under 50 when storage commences.", "37. By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with “ consents to use of gametes or embryos”, shall be complied with. The High Court and Court of Appeal held, in the proceedings brought by the applicant (see paragraphs 20 -2 7 above) that, as a matter of the construction of Schedule 3, “the embryo is only used once transferred to the woman”.", "Schedule 3 provides as follows :", "“ Consents to use of gametes or embryos", "Consent", "1. A consent under this Schedule must be given in writing and, in this Schedule, ‘ effective consent ’ means a consent under this Schedule which has not been withdrawn.", "2. (1) A consent to the use of any embryo must specify one or more of the following purposes–", "(a) use in providing treatment services to the person giving consent, or that person and another specified person together,", "(b) use in providing treatment services to persons not including the person giving consent, or", "(c) use for the purposes of any project of research,", "and may specify conditions subject to which the embryo may be so used.", "(2) A consent to the storage of any gametes or any embryo must –", "(a) specify the maximum period of storage (if less than the statutory storage period), and", "(b) state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it,", "and may specify conditions subject to which the gametes or embryo may remain in storage.", "(3) A consent under this Schedule must provide for such other matters as the Authority may specify in directions.", "(4) A consent under this Schedule may apply –", "(a) to the use or storage of a particular embryo, or", "(b) in the case of a person providing gametes, to the use or storage of any embryo whose creation may be brought about using those gametes,", "and in the paragraph (b) case the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos.", "Procedure for giving consent", "3. (1) Before a person gives consent under this Schedule –", "(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and", "(b) he must be provided with such relevant information as is proper.", "(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below.", "Variation and withdrawal of consent", "4. (1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant.", "(2) The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used –", "(a) in providing treatment services, or", "(b) for the purposes of any project of research.", "Use of gametes for treatment of others", "5. (1) A person ’ s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent.", "(2) A person ’ s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used.", "(3) This paragraph does not apply to the use of a person ’ s gametes for the purpose of that person, or that person and another together, receiving treatment services.", "In vitro fertilisation and subsequent use of embryo", "6. (1) A person ’ s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above.", "(2) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for one or more of the purposes mentioned in paragraph 2(1) above of the embryo.", "(3) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents.", "(4) Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above.", "...", "Storage of gametes and embryos", "8. (1) A person ’ s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent.", "(2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents.", "(3) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent.”", "38. The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley (see paragraph 2 5 above) as follows.", "“(i) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) They must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) Consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) An embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) An embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) Consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) Consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.”", "B. The position within the Council of Europe and in certain other countries", "1. The member States of the Council of Europe", "39. On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Comparative Study on the Solution in 39 States” (Council of Europe, 1998) and the replies by the member States of the Council of Europe to the Steering Committee on Bioethics “Questionnaire on Access to Medically Assisted Procreation ” (Council of Europe, 2005), it would appear that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; while in Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.", "40. The storage of embryos, for varying lengths of time, appears to be permitted in all the above States where IVF is regulated by primary or secondary legislation, except Germany and Switzerland, where in one cycle of treatment no more than three embryos may be created which are, in principle, to be implanted together immediately, and Italy, where the law permits the freezing of embryos only on exceptional, unforeseen medical grounds.", "41. In Denmark, France, Greece, the Netherlands and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in primary legislation. It appears that, as a matter of law or practice, in Belgium, Finland and Iceland there is a similar freedom for either gamete provider to withdraw consent before implantation.", "42. A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in the absence of a specific contrary agreement by the couple, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria and Estonia the man ’ s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man ’ s right to revoke his consent is recognised only where he is married to and living with the woman. In Germany and Italy, neither party can normally withdraw consent after the eggs have been fertilised. In Iceland, the embryos must be destroyed if the gamete providers separate or divorce before the expiry of the maximum storage period.", "43. In addition, the parties referred the Court to case-law from the United States and Israel. The field of medically assisted reproduction is not regulated at federal level in the United States and few States have introduced laws concerning the subsequent withdrawal of consent by one party. It has, therefore, been left to the courts to determine how the conflict between the parties should be resolved and there are a number of judgments by State Supreme Courts regarding the disposal of embryos created through IVF.", "44. In Davis v. Davis (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992:", "“ ... disputes involving the disposition of pre - embryos produced by in vitro fertilisation should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre - embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre - embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre - embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre - embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.", "But the rule does not contemplate the creation of an automatic veto ... ”", "45. In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured.", "46. In A.Z. v. B.Z. ( 2000 431 Mass. 150, 725 N.E. 2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “ freedom of personal choice in matters of marriage and family life” should prevail.", "47. This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them either to be donated to another couple or preserved for use by him with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, having taken into account the fact that the father was not infertile, the court subscribed to the view taken in the A. Z. case regarding public policy and ordered that the wife ’ s wishes be observed.", "48. Finally, in Litowitz v. Litowitz (48 P. 3d 261, 271) the woman, who had had children before undergoing a hysterectomy, wished to use embryos created with her ex-husband ’ s sperm and donor eggs for implantation in a surrogate mother. The ex-husband, however, wished the embryos to be donated to another couple. At first instance and on appeal the husband ’ s view prevailed, but in 2002 the Supreme Court of Washington decided by a majority to adopt a contractual analysis and to honour the couple ’ s agreement with the clinic not to store the embryos for more than five years.", "3. Israel", "49. In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)), a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband ’ s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos.", "The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife ’ s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man ’ s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman ’ s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband ’ s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man ’ s consent was required before the obligation of parenthood could be imposed on him.", "C. Relevant international texts", "50. The general rule stated in Article 5 of the Council of Europe Convention on Human Rights and Biomedicine states as follows:", "“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.", "The person concerned may freely withdraw consent at any time.”", "51. Principle 4 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI, 1989), stated:", "“1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements.", "... ”", "52. Finally, Article 6 of the Universal Declaration on Bioethics and Human Rights provides:", "“Article 6 – Consent", "1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "53. In her original application and in her observations before the Chamber, the applicant complained that the provisions of English law requiring the embryos to be destroyed once J. withdrew his consent to their continued storage violated the embryos ’ right to life, contrary to Article 2 of the Convention, which reads as follows:", "“1. Everyone ’ s right to life shall be protected by law. ... ”", "54. In its judgment of 7 March 2006, the Chamber observed that in Vo v. France [GC], no. 53924/00, § 82, ECHR 2004- VIII, the Grand Chamber had held that, in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere. Under English law, as was made clear by the domestic courts in the present applicant ’ s case, an embryo does not have independent rights or interests and cannot claim – or have claimed on its behalf – a right to life under Article 2. There had not, accordingly, been a violation of that provision.", "55. The Grand Chamber notes that the applicant has not pursued her complaint under Article 2 in her written or oral submissions to it. However, since cases referred to the Grand Chamber embrace all aspects of the application previously examined by the Chamber ( see K. and T. v. Finland [GC], no. 25702/94, § 140, ECHR 2001-VII), it is necessary to consider the issue under Article 2.", "56. The Grand Chamber, for the reasons given by the Chamber, finds that the embryos created by the applicant and J. do not have a right to life within the meaning of Article 2 of the Convention, and that there has not, therefore, been a violation of that provision.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "57. The applicant contended that the provisions of Schedule 3 to the 1990 Act, which permitted J. to withdraw his consent after the fertilisation of her eggs with his sperm, violated her right to respect for her private and family life under Article 8 of the Convention, which states:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "58. In its judgment of 7 March 2006 the Chamber held, in summary, that Article 8 was applicable, since the notion of “private life” incorporated the right to respect for both the decisions to become and not to become a parent. The question which arose under Article 8 was “whether there exists a positive obligation on the State to ensure that a woman who has embarked on treatment for the specific purpose of giving birth to a genetically related child should be permitted to proceed to implantation of the embryo notwithstanding the withdrawal of consent by her former partner, the male gamete provider”.", "59. Given that there was no international or European consensus with regard to the regulation of IVF treatment, the use of embryos created by such treatment, or the point at which consent to the use of genetic material provided as part of IVF treatment might be withdrawn, and since the use of IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, the margin of appreciation to be afforded to the respondent State must be a wide one.", "60. The 1990 Act was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology. Its policy was to ensure continuing consent from the commencement of treatment to the point of implantation in the woman. While the pressing nature of the applicant ’ s medical condition had required that she and J. reach a decision about the fertilisation of her eggs without as much time for reflection and advice as might ordinarily be desired, it was undisputed that it was explained to them both that either was free to withdraw consent at any time before the resulting embryo was implanted in the applicant ’ s uterus. As in Pretty v. the United Kingdom ( no. 2346/02, ECHR 2002-III ) and Odièvre v. France ( [GC], no. 42326/98, ECHR 2003-III ), strong policy considerations underlay the decision of the legislature to favour a clear or “bright line” rule which would serve both to produce legal certainty and to maintain public confidence in the law in a sensitive field. Like the national courts, the Chamber did not find, therefore, that the absence of a power to override a genetic parent ’ s withdrawal of consent, even in the exceptional circumstances of the applicant ’ s case, was such as to upset the fair balance required by Article 8 or to exceed the wide margin of appreciation afforded to the State.", "B. The parties ’ submissions", "1. The applicant", "61. The applicant accepted that there should be a regulatory scheme determining the use of reproductive medicine, but submitted that it was neither necessary nor proportionate to permit of no exceptions in the provision of a veto on the use of embryos to either gamete provider.", "62. The female ’ s role in IVF treatment was much more extensive and emotionally involving than that of the male, who donated his sperm and had no further active physical part to play in the process. The female gamete provider, by contrast, donated eggs, from a finite limited number available to her, after a series of sometimes painful medical interventions designed to maximise the potential for harvesting eggs. In the case of a woman with the applicant ’ s medical history, she would never again have the opportunity to attempt to create a child using her gametes. Her emotional and physical investment in the process far surpassed that of the man and justified the promotion of her Article 8 rights. Instead, the 1990 Act operated so that the applicant ’ s rights and freedoms in respect of creating a baby were dependent on J. ’ s whim. He was able to embark on the project of creating embryos with the applicant, offering such assurances as were necessary to convince her to proceed, and then abandon the project when he pleased, taking no responsibility for his original decision to become involved, and under no obligation even to provide an explanation for his behaviour.", "63. The impact of the consent rules in the 1990 Act was such that there would be no way for a woman in the applicant ’ s position to secure her future prospects of bearing a child, since both a known and an anonymous sperm donor could, on a whim, withdraw consent to her use of embryos created with his sperm. Part of the purpose of reproductive medicine was to provide a possible solution for those who would otherwise be infertile. That purpose was frustrated if there was no scope for exceptions in special circumstances.", "64. Whether the role of the State was analysed in terms of a positive obligation to take reasonable and appropriate measures to secure the individual ’ s Article 8 rights, or as an interference requiring justification, it was clear from the case-law that a fair balance had to be struck between the competing interests. There was no necessity for legislation which failed to recognise that exceptional situations, requiring different treatment, might arise. This was a conflict primarily between the respective rights of two private individuals, rather than between the State and an individual, and the proper way to determine a conflict between individuals was by recourse to a court for judicial assessment of the respective positions. In the present case, the clinic was ready and willing to treat the applicant, and should be permitted to do so. The Chamber had overstated the obligation for which the applicant contended: she did not go so far as to claim a duty on the part of the State to ensure that she be permitted to proceed.", "65. A fair appraisal of the Nachmani case (see paragraph 49 above) and the case-law from the United States of America (paragraphs 43-48 above) provided support for her argument. Nachmani was the closest case on its facts to her own, but the applicant ’ s case was stronger, since she wished to have the embryos implanted in her own uterus, not that of a surrogate. All the decisions from the United States appeared either to apply, or at least to recognise, a test whereby there was a balance of rights and/or interests in the embryos. Moreover, only one of these cases was decided on the basis of a conflict between public policy and private rights, and the case-law therefore supported the applicant ’ s contention that there was no public interest at stake. As for the position within the Council of Europe, the applicant pointed out that the Chamber appeared to have relied on material which was not available to the parties, although she accepted that there was no consensus in Europe as to whether, in the general run of cases, the man ’ s consent could be revoked either at any time before implantation, or only up to the point of fertilisation. However, the applicant invited the Court to consider what evidence there was as to how any Council of Europe State would determine a case with the same facts as the present dispute. Just how “bright line” were the rules even within the four States recorded in the Chamber judgment as permitting withdrawal of consent at any time up to implantation?", "66. While the applicant accepted that, since the statutory maximum storage period had expired by the time of the hearing before the Grand Chamber, she was no longer the victim of J. ’ s direction to the clinic to remove the embryos from storage, she submitted that it was neither necessary nor proportionate to give such a power to a single gamete provider. Human embryos were special: this was the underlying philosophy of the 1990 Act. Yet the Act permitted only one of the couple on a whim to destroy the embryos created by both; even a family pet enjoyed greater protection under the law.", "2. The Government", "67. The Government argued that the Chamber had been incorrect in referring to J. having withdrawn the consent he had given to the use of his gametes or to the applicant having sought to hold him to that consent. In fact, J. had never consented to the treatment which the applicant wished to receive, and his consent had always been limited to treatment of the applicant together with him; in practical terms, the consent was predicated on their relationship continuing. When the relationship broke down and the applicant wished to continue with the treatment by herself, the consent which J. had given did not extend to the new situation.", "68. The Government contended that the 1990 Act served to promote a number of inter-related policies and interests : the woman ’ s right to self-determination in respect of pregnancy once the embryo was implanted; the primacy of freely given and informed consent to medical intervention; the interests of any child who might be born as a result of IVF treatment; the equality of treatment between the parties; the promotion of the efficacy and use of IVF and related techniques; and clarity and certainty in relations between partners.", "69. States were entitled to a broad margin of appreciation in this field, given the complexity of the moral and ethical issues to which IVF treatment gave rise, on which opinions within a democratic society might reasonably differ widely. There was no international or European consensus as to the point at which a sperm donor should be allowed effectively to withdraw his consent and prevent the use of his genetic material. Moreover, a wide margin should be applied since the national authorities were required to strike a balance between the competing Convention interests of two individuals, each of whom was entitled to respect for their private life.", "70. The fact that the law allowing either party to withdraw his or her consent up until the point of implantation of the embryo did not permit of exception ( a “ bright line ” rule), did not in itself render it disproportionate. If exceptions were permitted, the principle which Parliament legitimately sought to achieve, of ensuring bilateral consent to implantation, would not be achieved. Complexity and arbitrariness would result, and the domestic authorities would be required to balance individuals ’ irreconcilable interests, as in the present case.", "C. The Court ’ s assessment", "1. The nature of the rights at issue under Article 8", "71. It is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant ’ s right to respect for her private life. The Grand Chamber agrees with the Chamber that “private life”, which is a broad term encompassing, inter alia, aspects of an individual ’ s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world ( see Pretty, cited above, § 61), incorporates the right to respect for both the decisions to become and not to become a parent.", "72. It must be noted, however, that the applicant does not complain that she is in any way prevented from becoming a mother in a social, legal, or even physical sense, since there is no rule of domestic law or practice to stop her from adopting a child or even giving birth to a child originally created in vitro from donated gametes. The applicant ’ s complaint is, more precisely, that the consent provisions of the 1990 Act prevent her from using the embryos she and J. created together, and thus, given her particular circumstances, from ever having a child to whom she is genetically related. The Grand Chamber considers that this more limited issue, concerning the right to respect for the decision to become a parent in the genetic sense, also falls within the scope of Article 8.", "73. The dilemma central to the present case is that it involves a conflict between the Article 8 rights of two private individuals: the applicant and J. Moreover, each person ’ s interest is entirely irreconcilable with the other ’ s, since if the applicant is permitted to use the embryos J. will be forced to become a father, whereas if J. ’ s refusal or withdrawal of consent is upheld the applicant will be denied the opportunity of becoming a genetic parent. In the difficult circumstances of this case, whatever solution the national authorities might adopt would result in the interests of one or the other parties to the IVF treatment being wholly frustrated (see Odièvre, cited above, § 44).", "74. In addition, the Grand Chamber, like the Chamber, accepts the Government ’ s submission (see paragraph 6 8 above) that the case does not involve simply a conflict between individuals; the legislation in question also served a number of wider, public interests, in upholding the principle of the primacy of consent and promoting legal clarity and certainty, for example (compare, again, Odièvre, § 45). The extent to which it was permissible under Article 8 for the State to give weight to these considerations is examined below.", "2. Whether the case involves a positive obligation or an interference", "75. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation ( see Odièvre, cited above, § 40 ).", "76. In the domestic proceedings, the parties and the judges treated the issue as one involving an interference by the State with the applicant ’ s right to respect for her private life, because the relevant provisions of the 1990 Act prevented the clinic from treating her once J. had informed it that he did not consent. The Grand Chamber, however, like the Chamber, considers that it is more appropriate to analyse the case as one concerning positive obligations, the principal issue, as in Odièvre, cited above, being whether the legislative provisions as applied in the present case struck a fair balance between the competing public and private interests involved. In this regard, the Grand Chamber accepts the findings of the domestic courts that J. had never consented to the applicant using the jointly created embryos alone – his consent being limited to undergoing “treatment together” with the applicant (see paragraph 24 above). The Court does not find it of importance to the determination of the Convention issue whether in these circumstances J. is to be regarded as having “refused” rather than “withdrawn” his consent to the implantation of the embryos, as the Government argue (paragraph 67 above).", "3. The margin of appreciation", "77. A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will be restricted (see, for example, X and Y v. the Netherlands, 26 March 1985, §§ 24 and 27, Series A no. 91; Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; see also Pretty, cited above, § 71 ). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider ( see X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports of Judgments and Decisions 1997-II; Fretté v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin, cited above, § 85; see also, mutatis mutandis, Vo, cited above, § 82 ). There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights (see Odièvre, §§ 44-49, and Fretté, § 42 ).", "78. The issues raised by the present case are undoubtedly of a morally and ethically delicate nature, and in this connection the Court recalls the words of Lord Bingham in Quintavalle (see paragraph 3 4 above).", "79. In addition, while the Court is mindful of the applicant ’ s submission to treat the comparative law data with caution, it is at least clear, and the applicant does not contend otherwise, that there is no uniform European approach in this field. Certain States have enacted primary or secondary legislation to control the use of IVF treatment, whereas in others this is a matter left to medical practice and guidelines. While the United Kingdom is not alone in permitting storage of embryos and in providing both gamete providers with the power freely and effectively to withdraw consent up until the moment of implantation, different rules and practices are applied elsewhere in Europe. It cannot be said that there is any consensus as to the stage in IVF treatment when the gamete providers ’ consent becomes irrevocable (see paragraphs 39 -4 2 above).", "80. While the applicant contends that her greater physical and emotional expenditure during the IVF process, and her subsequent infertility, entail that her Article 8 rights should take precedence over J. ’ s, it does not appear to the Court that there is any clear consensus on this point either. The Court of Appeal commented on the difficulty of comparing the effect on J. of being forced to become the father of the applicant ’ s child and that on the applicant of being denied the chance to have genetically related offspring (see paragraphs 2 5 -2 6 above), and this difficulty is also reflected in the range of views expressed by the two panels of the Israeli Supreme Court in Nachmani and in the United States case-law (see paragraphs 4 3-49 above).", "81. In conclusion, therefore, since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one (see X, Y and Z v. the United Kingdom, cited above, § 44).", "82. The Grand Chamber, like the Chamber, considers that the above margin must in principle extend both to the State ’ s decision whether or not to enact legislation governing the use of IVF treatment and, having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests.", "4. Compliance with Article 8", "83. It remains for the Court to determine whether, in the special circumstances of the case, the application of a law which permitted J. effectively to withdraw or withhold his consent to the implantation in the applicant ’ s uterus of the embryos created jointly by them struck a fair balance between the competing interests.", "84. The fact that it is now technically possible to keep human embryos in frozen storage gives rise to an essential difference between IVF and fertilisation through sexual intercourse, namely the possibility of allowing a lapse of time, which may be substantial, to intervene between creation of the embryo and its implantation in the uterus. The Court considers that it is legitimate – and indeed desirable – for a State to set up a legal scheme which takes this possibility of delay into account. In the United Kingdom, the solution adopted in the 1990 Act was to permit storage of embryos for a maximum of five years. In 1996 this period was extended by secondary legislation to ten or more years where one of the gamete providers or the prospective mother is, or is likely to become, prematurely infertile, although storage can never continue after the woman being treated reaches the age of 55 (see paragraph 36 above).", "85. These provisions are complemented by a requirement on the clinic providing the treatment to obtain a prior written consent from each gamete provider, specifying, inter alia, the type of treatment for which the embryo is to be used (Schedule 3, paragraph 2(1) to the 1990 Act), the maximum period of storage, and what is to be done with it in the event of the gamete provider ’ s death or incapacity (Schedule 3, paragraph 2(2)). Moreover, paragraph 4 of Schedule 3 provides that “[t] he terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo ... ” up until the point that the embryo has been “used” (that is, implanted in the uterus; see paragraph 3 7 above). Other States, with different religious, social and political cultures, have adopted different solutions to the technical possibility of delay between fertilisation and implantation (see paragraphs 3 9 -4 2 above). For the reasons set out above (paragraphs 7 7 -8 2 ), the decision as to the principles and policies to be applied in this sensitive field must primarily be for each State to determine.", "86. In this connection the Grand Chamber agrees with the Chamber that it is relevant that the 1990 Act was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology, and the fruit of much reflection, consultation and debate ( see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 128, ECHR 2003-VIII).", "87. The potential problems arising from scientific progress in storing human embryos were addressed as early as the Warnock Committee ’ s Report of 1984, which recommended that a couple should be permitted to store embryos for their own future use for a maximum of ten years, after which time the right of use or disposal should pass to the storage authority. In the event that a couple failed to agree how the shared embryo should be used, the right to determine the use or disposal of the embryo should pass to the “ storage authority ”. The subsequent Green Paper specifically asked interested members of the public what should happen where there was no agreement between a couple as to the use or disposal of an embryo, and the 1987 White Paper noted that those respondents who agreed that storage should be permitted were broadly in favour of the Committee ’ s recommendations, but that some rejected the idea that the “storage authority” should be empowered to decide the embryo ’ s fate in the event of conflict between the donors. The government therefore proposed “ that the law should be based on the clear principle that the donor ’ s wishes are paramount during the period in which embryos or gametes may be stored; and that after the expiry of this period, they may only be used by the licence holder for other purposes if the donor ’ s consent has been given to this”. The White Paper also set out the detail of the proposals on consent in a form which, after further consultation, was adopted by the legislature in Schedule 3 to the 1990 Act (see paragraphs 2 9 -3 3 above).", "88. That Schedule places a legal obligation on any clinic carrying out IVF treatment to explain the consent provisions to a person embarking on such treatment and to obtain his or her consent in writing (see paragraph 3 7 above). It is undisputed that this occurred in the present case, and that the applicant and J. both signed the consent forms required by law. While the pressing nature of the applicant ’ s medical condition required her to make a decision quickly and under extreme stress, she knew, when consenting to have all her eggs fertilised with J. ’ s sperm, that these would be the last eggs available to her, that it would be some time before her cancer treatment was completed and any embryos could be implanted, and that, as a matter of law, J. would be free to withdraw consent to implantation at any time.", "89. While the applicant criticised the national rules on consent for the fact that they could not be disapplied in any circumstances, the Court does not find that the absolute nature of the Act is, in itself, necessarily inconsistent with Article 8 (see also Pretty and Odièvre, both cited above). Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties to IVF treatment, underlay the legislature ’ s decision to enact provisions permitting of no exception to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent. In addition to the principle at stake, the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case - by- case basis, what the Court of Appeal described as “entirely incommensurable ” interests (see paragraphs 2 5 -2 6 above). In the Court ’ s view, these general interests pursued by the legislation are legitimate and consistent with Article 8.", "90. As regards the balance struck between the conflicting Article 8 rights of the parties to the IVF treatment, the Grand Chamber, in common with every other court which has examined this case, has great sympathy for the applicant, who clearly desires a genetically related child above all else. However, given the above considerations, including the lack of any European consensus on this point (see paragraph 79 above), it does not consider that the applicant ’ s right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than J. ’ s right to respect for his decision not to have a genetically related child with her.", "91. The Court accepts that it would have been possible for Parliament to regulate the situation differently. However, as the Chamber observed, the central question under Article 8 is not whether different rules might have been adopted by the legislature, but whether, in striking the balance at the point at which it did, Parliament exceeded the margin of appreciation afforded to it under that Article.", "92. The Grand Chamber considers that, given the lack of European consensus on this point, the fact that the domestic rules were clear and brought to the attention of the applicant and that they struck a fair balance between the competing interests, there has been no violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "93. In her application and in the proceedings before the Chamber, the applicant complained of discrimination contrary to Article 14 of the Convention taken in conjunction with Article 8, reasoning that a woman who was able to conceive without assistance was subject to no control or influence over how the embryos developed from the moment of fertilisation, whereas a woman such as herself who could conceive only with IVF was, under the 1990 Act, subject to the will of the sperm donor.", "94. In her observations to the Grand Chamber, however, the applicant submitted that her complaints under Articles 8 and 14 were inextricably linked, and that if the Court found that the impugned provision of domestic law was proportionate under Article 8, it should also find the scheme reasonably and objectively justified under Article 14.", "95. The Grand Chamber agrees with the Chamber and the parties that it is not required to decide in the present case whether the applicant could properly complain of a difference of treatment as compared to another woman in an analogous position, because the reasons given for finding that there was no violation of Article 8 also afford a reasonable and objective justification under Article 14 (see, mutatis mutandis, Pretty, cited above, § 89).", "96. Consequently, there has been no violation of Article 14 of the Convention." ]

[ "I. the circumstances of the case", "A. The applicant's conviction for insubordination", "7. On 9 December 1983 the Athens Permanent Army Tribunal ( Diarkes Stratodikio ), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day.", "B. The refusal to appoint the applicant to a chartered accountant's post", "8. In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime ( kakuryima ).", "C. The proceedings before the Supreme Administrative Court", "9. On 8 May 1989 the applicant seised the Supreme Administrative Court ( Simvulio Epikratias ) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence.", "10. On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed.", "11. On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues.", "12. The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed.", "13. On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence." ]

[ "II. relevant domestic law", "A. Appointment to a chartered accountant's post", "14. Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece.", "15. Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant.", "16. According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service.", "17. On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd.", "B. The criminal offence of insubordination", "18. Article 70 of the Military Criminal Code in force until 1995 provided:", "“A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished –", "(a) if the act is committed in front of the enemy or armed insurgents, with death;", "(b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and", "(c) in all other circumstances, with imprisonment between six months and two years.”", "19. By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force.", "20. Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life.", "21. Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes ( kakuryimata ). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours ( plimmelimata ).", "22. Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour.", "C. The right to conscientious objection to military service", "23. Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years.", "24. Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record.", "25. Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides:", "“Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...”", "THE LAW", "I. SCOPE OF THE CASE", "26. In his original application to the Commission the applicant had complained under Articles 9 and 14 of the Convention about the failure of the authorities to appoint him to a post of chartered accountant and under Article 6 § 1 about the proceedings he had instituted in this connection. Only in his observations in reply to the Government's observations on the admissibility and merits of the application did the applicant also complain of a violation of Article 1 of Protocol No. 1. The Commission declared the latter complaint inadmissible on the ground that it had not been submitted within the six-month time-limit provided by the Convention.", "27. In his memorial before the Court the applicant contended that the Court was competent to examine his complaint under Article 1 of Protocol No. 1. Although this complaint had not been expressly raised in the application form, the facts underlying it had been set out therein. The Convention organs were free to give them the proper legal qualification.", "28. The Court recalls that the scope of its jurisdiction is determined by the Commission's decision declaring the originating application admissible (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 40, ECHR 1999-IV). Moreover, it considers, as the Commission did, that the complaint under Article 1 of Protocol No. 1 was separate from the complaints declared admissible. It follows that the Court has no jurisdiction to entertain this complaint.", "II. The Government's Preliminary OBJeCtion", "29. The Government argued that the applicant, by using the procedure provided by section 23(1) and (4) of Law no. 2510/1997, could have avoided the consequences of his conviction. They also submitted that he could have applied for a pardon under Article 47 § 1 of the Constitution. However, the Government accepted that, even if the applicant had been recognised as a conscientious objector under Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered as a result of his conviction.", "30. The applicant claimed that he had not been aware of the three-month time-limit in section 23(1) and (4) of Law no. 2510/1997 and had missed the deadline. In any event, the above provisions were “obscure” and only few conscientious objectors had succeeded in having their past convictions expunged from their criminal records.", "31. The Court notes that, even if the applicant had not missed the deadline in section 23(1) and (4) of Law no. 2510/1997, his claim that he could not serve in the armed forces because of his religious beliefs would have been examined by a commission, which would have advised the Minister of National Defence on whether or not he should be recognised as a conscientious objector. This commission and the Minister would not have been obliged to grant the applicant's claim since they, at least to a certain degree, retained discretionary powers (see paragraphs 24 and 25 above). Moreover, it was accepted by the parties that, even if the applicant had obtained the removal of his conviction from his criminal record pursuant to section 23(1) and (4) of Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered until then as a result of his conviction. For the same reason the applicant could not have been certain that his request for a pardon would have been granted and, even if it had, the applicant could not have obtained reparation.", "32. In any event, the Court notes that, in so far as the Government can be deemed to raise a preliminary objection concerning the applicant's status as a victim within the meaning of Article 34 of the Convention, this objection had not been put forward when the admissibility of the application was being considered by the Commission. There was nothing preventing the Government from raising it at that stage of the proceedings, since Law no. 2510/1997 had been enacted prior to the Commission's admissibility decision. The Court therefore holds that the Government is estopped from raising this preliminary objection and dismisses it (see Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II).", "III. ALLEGED VIOLATION oF ARTICLE 14 of the convention taken IN CONJUNCTION WITH ARTICLE 9", "33. The Court notes that the applicant did not complain about his initial conviction for insubordination. The applicant complained that the law excluding persons convicted of a serious crime from appointment to a chartered accountant's post did not distinguish between persons convicted as a result of their religious beliefs and persons convicted on other grounds. The applicant invoked Article 14 of the Convention taken in conjunction with Article 9, which provide:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 9", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments before the Court", "34. The applicant submitted that his non-appointment to a post of chartered accountant was directly linked to the manifestation of his religious beliefs and fell within the ambit of Article 9 of the Convention. He pointed out in this connection that he had not been appointed because he had refused to serve in the armed forces; by refusing to do so, he had manifested his religious beliefs as a Jehovah's Witness. The applicant further argued that it could not serve any useful purpose to exclude someone from the profession of chartered accountants for having refused to serve in the armed forces on religious grounds. In the applicant's view, the law should not have excluded every person convicted of a serious crime. The legitimacy of the exclusion depended on the nature of the post and of the offence, including the motives of the offender, the time elapsed since the offence and the offender's conduct during that time. Seen in this light, the authorities' failure to appoint the applicant was not necessary. The class of persons to which the applicant belonged, namely male Jehovah's Witnesses whose religion involved compelling reasons for refusing to serve in the armed forces, was different from the class of most other criminal offenders. The Government's failure to take account of this difference amounted to discrimination not tolerated by Article 14 of the Convention taken in conjunction with Article 9.", "35. The Government argued that Article 14 of the Convention did not apply because the facts of the case did not fall within the ambit of Article 9. The authorities that refused to appoint the applicant a chartered accountant had no option but to apply a rule that excluded all persons convicted of a serious crime from such a post. The authorities could not inquire into the reasons that had led to a person's conviction. Because of its generality, the law in question was neutral. Moreover, it served the public interest. A person convicted of a serious offence could not be appointed to the civil service and, by extension, to a post of chartered accountant. This prohibition had to be absolute and no distinction could be made on a case-by-case basis. States had a wide margin of appreciation in the characterisation of criminal offences as serious crimes or otherwise. The applicant had committed a serious offence by refusing to perform unarmed military service at a time of general mobilisation because he had tried to avoid a very important obligation towards society and the State, linked with the defence, safety and independence of the country. As a result, the sanction was not disproportionate.", "36. The Government also stressed that the Court had no competence to examine the applicant's initial conviction. In any event, this had nothing to do with his religious beliefs. The obligation to do military service applied to all Greek males without any exceptions on grounds of religion or conscience. Moreover, the applicant had been convicted of insubordination. Discipline in the army could not be made to depend on whether a soldier agreed with the orders given to him.", "37. In the light of all the above, the Government argued that, even if Article 14 applied, there would exist an objective and reasonable justification for the failure to distinguish between the applicant and other persons convicted of a serious crime. There was no need to point out that Greek Orthodox or Catholic Christians would also be excluded from the profession of chartered accountants if they had committed a serious crime.", "38. The Commission considered that Article 14 applied because it was sufficient that the facts of the case fell within the ambit of Article 9, and, in its opinion, there had been an interference with the rights protected by that Article in the present case. The Commission further considered that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention was violated not only when States treated differently persons in analogous situations without providing an objective and reasonable justification, but also when States, without an objective and reasonable justification, failed to treat differently persons whose situations were different. In the circumstances of the case, there was no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other serious crimes.", "B. The Court's assessment", "39. The Court considers that the applicant's complaint falls to be examined under Article 14 of the Convention taken in conjunction with Article 9 for the following reasons.", "40. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).", "41. The Court notes that the applicant was not appointed a chartered accountant as a result of his past conviction for insubordination consisting in his refusal to wear the military uniform. He was thus treated differently from the other persons who had applied for that post on the ground of his status as a convicted person. The Court considers that such difference of treatment does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, the right to freedom of profession not being guaranteed by the Convention.", "42. However, the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. In this context the Court notes that the applicant is a member of the Jehovah's Witnesses, a religious group committed to pacifism, and that there is nothing in the file to disprove the applicant's claim that he refused to wear the military uniform only because he considered that his religion prevented him from doing so. In essence, the applicant's argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9 of the Convention, in that he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a serious crime for the purposes of an appointment to a chartered accountant's post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9.", "43. In order to reach this conclusion, the Court, as opposed to the Commission, does not find it necessary to examine whether the applicant's initial conviction and the authorities' subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court does not have to address, in the present case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service may in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1.", "44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.", "45. It follows that Article 14 of the Convention is of relevance to the applicant's complaint and applies in the circumstances of this case in conjunction with Article 9 thereof.", "46. The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.).", "47. The Court considers that, as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender's ability to exercise this profession. Excluding the applicant on the ground that he was an unfit person was not, therefore, justified. The Court takes note of the Government's argument that persons who refuse to serve their country must be appropriately punished. However, it also notes that the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds that there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a serious crime.", "48. It is true that the authorities had no option under the law but to refuse to appoint the applicant a chartered accountant. However, contrary to what the Government's representative appeared to argue at the hearing, this cannot absolve the respondent State from responsibility under the Convention. The Court has never excluded that legislation may be found to be in direct breach of the Convention (see, inter alia, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III). In the present case the Court considers that it was the State having enacted the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9 of the Convention. That State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a serious crime from the profession of chartered accountants.", "49. The Court concludes, therefore, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9.", "IV. ALLEGED VIOLATION oF ARTICLE 9 OF THE CONVENTION", "50. The applicant argued that both his initial conviction for insubordination and the authorities' resultant refusal to appoint him as a chartered accountant constituted interference with his right to manifest his religious beliefs under Article 9 of the Convention. The Commission's case ‑ law to the effect that the Convention did not guarantee the right to conscientious objection to military service had to be reviewed in the light of present-day conditions. Virtually all Contracting States now recognised the right to alternative civilian service. Although the Court was admittedly not competent to examine the interference arising out of the applicant's initial conviction, the applicant submitted that the interference arising out of his non-appointment could not be deemed necessary in a democratic society.", "51. The Government argued that the authorities' refusal to appoint the applicant did not constitute an interference with his right under Article 9 of the Convention. In any event, it was necessary in a democratic society. At the time when the applicant refused to serve in the armed forces, Greek law only recognised the possibility of unarmed military service because it was considered that giving everybody the right to alternative civilian service could give rise to abuses. As a result, the sanction imposed on him was not disproportionate and the rule excluding persons convicted of a serious crime from certain positions had to be applied without any distinctions.", "52. The Commission did not consider it necessary to address the issue.", "53. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 9 and for the reasons set out in paragraph 43 above, it is not necessary also to consider whether there has been a violation of Article 9 taken on its own.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "54. The applicant also complained that the length of the proceedings he instituted before the Supreme Administrative Court to challenge his non ‑ appointment gave rise to a violation of Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "55. The applicant submitted that Article 6 § 1 of the Convention applied to the Supreme Administrative Court proceedings under examination because they did not concern access to the civil service but to a liberal, albeit tightly regulated, profession. Moreover, he argued that the proceedings were not concluded within a reasonable time. The case did not involve complex legal issues. The issues that were referred to the plenary of the Supreme Administrative Court were not raised by the applicant but by the Supreme Administrative Court 's Chamber itself. In any event, they could not justify a delay of more than seven years.", "56. The Government submitted that Article 6 § 1 was not applicable because the refusal to appoint the applicant was an administrative act falling within the sphere of public law. In any event, the case raised serious constitutional issues. Moreover, lawyers were on strike during many months in 1991, 1992, 1993 and 1994. In the light of all the above and the Supreme Administrative Court 's case-load, seven years was a reasonable period.", "57. The Commission considered that Article 6 applied because, although chartered accountants were appointed by administrative decision, their occupation was an independent profession. It also considered that complex legal issues were involved. However, the applicant was not responsible for any of the delays. Moreover, there were two periods of inactivity of a total duration of almost three years for which the Government did not offer any explanation apart from the Supreme Administrative Court 's case-load. In the view of the Commission, the proceedings were not reasonable in length.", "58. The Court recalls that, although regulated by administrative law, the profession of chartered accountants was one of the liberal professions in Greece. As a result, the proceedings instituted by the applicant to challenge the authorities' failure to appoint him to a post of chartered accountant involved a determination of his civil rights within the meaning of Article 6 § 1 of the Convention (see, among others, the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 32, § 94).", "59. The Court notes that the proceedings before the Supreme Administrative Court began on 8 May 1989, when the applicant lodged his application for judicial review, and ended on 28 June 1996, when the Third Chamber of the court rejected it. They lasted, therefore, seven years, one month and twenty days.", "60. The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I). Employment disputes, to which disputes concerning access to a liberal profession can be compared, call generally for expeditious decision (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206 ‑ C, pp. 32-33, § 17).", "61. The Court notes that the case involved legal issues of some complexity. However, the applicant did not cause any delays. And there were two periods of inactivity of a total duration of almost three years. The first such period started on 8 May 1989, when the applicant instituted the proceedings, and ended on 18 April 1991, when the Third Chamber first heard the case. The second started on 11 November 1994, when the plenary court referred the case back to the Third Chamber, and ended on 26 October 1995, when the Third Chamber issued the final decision. The only explanation offered by the Government for these periods of inactivity is the Supreme Administrative Court 's case-load.", "62. The Court cannot accept this explanation. According to its case-law, it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see the Vocaturo judgment cited above, ibid.). In the light of all the above and given that the proceedings concerned the applicant's professional future, the Court considers that the length of the proceedings failed to meet the “reasonable time” requirement.", "63. The Court concludes, therefore, that there has been a violation of Article 6 § 1 of the Convention.", "vi. APPLICATION OF aRTICLE 41 OF THE CONVENTION", "64. Under Article 41 of the Convention,", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "65. The applicant claimed 84,140,000 drachmas (GRD) for pecuniary damage, including approximately GRD 17,000,000 in respect of salaries lost between the authorities' refusal to appoint him and the abolition of the monopoly of the Institute of Chartered Accountants. In support of his claim, the applicant invoked “a survey conducted by the Institute of Chartered Accountants and a private chartered accountants' firm”.", "66. The Government submitted that freedom of religion had nothing to do with the above damage. In any event, they pointed out that during the entire period under examination the applicant worked in the private sector and that his claims were not supported by any official documents.", "67. The Court notes that, the Government's general remarks about the link between freedom of religion and pecuniary damages notwithstanding, it was not disputed that, if the authorities had not refused to appoint the applicant to a chartered accountant's post, he would have received an income related to this professional activity at least until the abolition of the monopoly of the Institute of Chartered Accountants. However, the Court also notes that the applicant was not unemployed during that period of time. Moreover, the applicant has not shown that the income he would have earned as a chartered accountant would have exceeded the income he had actually earned in private practice during the relevant period of time. The Court, therefore, does not award the applicant any compensation for pecuniary damage.", "B. Non-pecuniary damage", "68. The applicant claimed GRD 15,000,000 for non-pecuniary damage.", "69. The Government argued that no causal link was established between the violation of the Convention and the above sum. In any event, the claim was excessive.", "70. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of the violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time and of his right under Article 14 taken in conjunction with Article 9 to be free from discrimination in the exercise of his freedom of religion. The duration of the proceedings must have caused the applicant prolonged insecurity and anxiety about his eligibility to a professional activity to which he aspired. Moreover, the violation of Article 14 of the Convention taken in conjunction with Article 9 occurred in the making of decisions concerning the applicant's access to a profession, which is a central element for the shaping of one's life plans. Making its assessment on an equitable basis, the Court awards the applicant GRD 6,000,000 for non-pecuniary damage.", "C. Costs and expenses", "71. The applicant claimed GRD 6,250,000 in respect of costs and expenses incurred in the domestic and Convention proceedings. This amount included GRD 250,000 in lawyers' fees for the applicant's representation before the administrative authorities, GRD 1,700,000 in lawyers' fees for the proceedings before the Supreme Administrative Court, GRD 500,000 in lawyers' fees for the proceedings before the Commission, GRD 2,000,000 in lawyers' fees for the proceedings before the Court, GRD 1,300,000 for travel and subsistence expenses in connection with the appearance of the applicant and his lawyer at the hearing before the Court and GRD 500,000 for miscellaneous expenses.", "72. The Government argued that the claim should be awarded only to the extent that the costs and expenses were actually and necessarily incurred and were reasonable as to quantum.", "73. The Court agrees with the Government as to the test to be applied in order for costs and expenses to be included in an award under Article 41 of the Convention (see, among other authorities, Nikolova cited above, § 79). Moreover, it considers that the applicant's claim is excessive. The Court therefore awards the applicant GRD 3,000,000 under this head.", "D. Default interest", "74. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum." ]

[ "I. the circumstances of the case", "A. The applicant's conviction for insubordination", "7. On 9 December 1983 the Athens Permanent Army Tribunal ( Diarkes Stratodikio ), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day.", "B. The refusal to appoint the applicant to a chartered accountant's post", "8. In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime ( kakuryima ).", "C. The proceedings before the Supreme Administrative Court", "9. On 8 May 1989 the applicant seised the Supreme Administrative Court ( Simvulio Epikratias ) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence.", "10. On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed.", "11. On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues.", "12. The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed.", "13. On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence." ]

[ "II. relevant domestic law", "A. Appointment to a chartered accountant's post", "14. Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece.", "15. Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant.", "16. According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service.", "17. On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd.", "B. The criminal offence of insubordination", "18. Article 70 of the Military Criminal Code in force until 1995 provided:", "“A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished –", "(a) if the act is committed in front of the enemy or armed insurgents, with death;", "(b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and", "(c) in all other circumstances, with imprisonment between six months and two years.”", "19. By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force.", "20. Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life.", "21. Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes ( kakuryimata ). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours ( plimmelimata ).", "22. Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour.", "C. The right to conscientious objection to military service", "23. Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years.", "24. Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record.", "25. Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides:", "“Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...”", "THE LAW", "I. SCOPE OF THE CASE", "26. In his original application to the Commission the applicant had complained under Articles 9 and 14 of the Convention about the failure of the authorities to appoint him to a post of chartered accountant and under Article 6 § 1 about the proceedings he had instituted in this connection. Only in his observations in reply to the Government's observations on the admissibility and merits of the application did the applicant also complain of a violation of Article 1 of Protocol No. 1. The Commission declared the latter complaint inadmissible on the ground that it had not been submitted within the six-month time-limit provided by the Convention.", "27. In his memorial before the Court the applicant contended that the Court was competent to examine his complaint under Article 1 of Protocol No. 1. Although this complaint had not been expressly raised in the application form, the facts underlying it had been set out therein. The Convention organs were free to give them the proper legal qualification.", "28. The Court recalls that the scope of its jurisdiction is determined by the Commission's decision declaring the originating application admissible (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 40, ECHR 1999-IV). Moreover, it considers, as the Commission did, that the complaint under Article 1 of Protocol No. 1 was separate from the complaints declared admissible. It follows that the Court has no jurisdiction to entertain this complaint.", "II. The Government's Preliminary OBJeCtion", "29. The Government argued that the applicant, by using the procedure provided by section 23(1) and (4) of Law no. 2510/1997, could have avoided the consequences of his conviction. They also submitted that he could have applied for a pardon under Article 47 § 1 of the Constitution. However, the Government accepted that, even if the applicant had been recognised as a conscientious objector under Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered as a result of his conviction.", "30. The applicant claimed that he had not been aware of the three-month time-limit in section 23(1) and (4) of Law no. 2510/1997 and had missed the deadline. In any event, the above provisions were “obscure” and only few conscientious objectors had succeeded in having their past convictions expunged from their criminal records.", "31. The Court notes that, even if the applicant had not missed the deadline in section 23(1) and (4) of Law no. 2510/1997, his claim that he could not serve in the armed forces because of his religious beliefs would have been examined by a commission, which would have advised the Minister of National Defence on whether or not he should be recognised as a conscientious objector. This commission and the Minister would not have been obliged to grant the applicant's claim since they, at least to a certain degree, retained discretionary powers (see paragraphs 24 and 25 above). Moreover, it was accepted by the parties that, even if the applicant had obtained the removal of his conviction from his criminal record pursuant to section 23(1) and (4) of Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered until then as a result of his conviction. For the same reason the applicant could not have been certain that his request for a pardon would have been granted and, even if it had, the applicant could not have obtained reparation.", "32. In any event, the Court notes that, in so far as the Government can be deemed to raise a preliminary objection concerning the applicant's status as a victim within the meaning of Article 34 of the Convention, this objection had not been put forward when the admissibility of the application was being considered by the Commission. There was nothing preventing the Government from raising it at that stage of the proceedings, since Law no. 2510/1997 had been enacted prior to the Commission's admissibility decision. The Court therefore holds that the Government is estopped from raising this preliminary objection and dismisses it (see Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II).", "III. ALLEGED VIOLATION oF ARTICLE 14 of the convention taken IN CONJUNCTION WITH ARTICLE 9", "33. The Court notes that the applicant did not complain about his initial conviction for insubordination. The applicant complained that the law excluding persons convicted of a serious crime from appointment to a chartered accountant's post did not distinguish between persons convicted as a result of their religious beliefs and persons convicted on other grounds. The applicant invoked Article 14 of the Convention taken in conjunction with Article 9, which provide:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 9", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments before the Court", "34. The applicant submitted that his non-appointment to a post of chartered accountant was directly linked to the manifestation of his religious beliefs and fell within the ambit of Article 9 of the Convention. He pointed out in this connection that he had not been appointed because he had refused to serve in the armed forces; by refusing to do so, he had manifested his religious beliefs as a Jehovah's Witness. The applicant further argued that it could not serve any useful purpose to exclude someone from the profession of chartered accountants for having refused to serve in the armed forces on religious grounds. In the applicant's view, the law should not have excluded every person convicted of a serious crime. The legitimacy of the exclusion depended on the nature of the post and of the offence, including the motives of the offender, the time elapsed since the offence and the offender's conduct during that time. Seen in this light, the authorities' failure to appoint the applicant was not necessary. The class of persons to which the applicant belonged, namely male Jehovah's Witnesses whose religion involved compelling reasons for refusing to serve in the armed forces, was different from the class of most other criminal offenders. The Government's failure to take account of this difference amounted to discrimination not tolerated by Article 14 of the Convention taken in conjunction with Article 9.", "35. The Government argued that Article 14 of the Convention did not apply because the facts of the case did not fall within the ambit of Article 9. The authorities that refused to appoint the applicant a chartered accountant had no option but to apply a rule that excluded all persons convicted of a serious crime from such a post. The authorities could not inquire into the reasons that had led to a person's conviction. Because of its generality, the law in question was neutral. Moreover, it served the public interest. A person convicted of a serious offence could not be appointed to the civil service and, by extension, to a post of chartered accountant. This prohibition had to be absolute and no distinction could be made on a case-by-case basis. States had a wide margin of appreciation in the characterisation of criminal offences as serious crimes or otherwise. The applicant had committed a serious offence by refusing to perform unarmed military service at a time of general mobilisation because he had tried to avoid a very important obligation towards society and the State, linked with the defence, safety and independence of the country. As a result, the sanction was not disproportionate.", "36. The Government also stressed that the Court had no competence to examine the applicant's initial conviction. In any event, this had nothing to do with his religious beliefs. The obligation to do military service applied to all Greek males without any exceptions on grounds of religion or conscience. Moreover, the applicant had been convicted of insubordination. Discipline in the army could not be made to depend on whether a soldier agreed with the orders given to him.", "37. In the light of all the above, the Government argued that, even if Article 14 applied, there would exist an objective and reasonable justification for the failure to distinguish between the applicant and other persons convicted of a serious crime. There was no need to point out that Greek Orthodox or Catholic Christians would also be excluded from the profession of chartered accountants if they had committed a serious crime.", "38. The Commission considered that Article 14 applied because it was sufficient that the facts of the case fell within the ambit of Article 9, and, in its opinion, there had been an interference with the rights protected by that Article in the present case. The Commission further considered that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention was violated not only when States treated differently persons in analogous situations without providing an objective and reasonable justification, but also when States, without an objective and reasonable justification, failed to treat differently persons whose situations were different. In the circumstances of the case, there was no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other serious crimes.", "B. The Court's assessment", "39. The Court considers that the applicant's complaint falls to be examined under Article 14 of the Convention taken in conjunction with Article 9 for the following reasons.", "40. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).", "41. The Court notes that the applicant was not appointed a chartered accountant as a result of his past conviction for insubordination consisting in his refusal to wear the military uniform. He was thus treated differently from the other persons who had applied for that post on the ground of his status as a convicted person. The Court considers that such difference of treatment does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, the right to freedom of profession not being guaranteed by the Convention.", "42. However, the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. In this context the Court notes that the applicant is a member of the Jehovah's Witnesses, a religious group committed to pacifism, and that there is nothing in the file to disprove the applicant's claim that he refused to wear the military uniform only because he considered that his religion prevented him from doing so. In essence, the applicant's argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9 of the Convention, in that he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a serious crime for the purposes of an appointment to a chartered accountant's post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9.", "43. In order to reach this conclusion, the Court, as opposed to the Commission, does not find it necessary to examine whether the applicant's initial conviction and the authorities' subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court does not have to address, in the present case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service may in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1.", "44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.", "45. It follows that Article 14 of the Convention is of relevance to the applicant's complaint and applies in the circumstances of this case in conjunction with Article 9 thereof.", "46. The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.).", "47. The Court considers that, as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender's ability to exercise this profession. Excluding the applicant on the ground that he was an unfit person was not, therefore, justified. The Court takes note of the Government's argument that persons who refuse to serve their country must be appropriately punished. However, it also notes that the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds that there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a serious crime.", "48. It is true that the authorities had no option under the law but to refuse to appoint the applicant a chartered accountant. However, contrary to what the Government's representative appeared to argue at the hearing, this cannot absolve the respondent State from responsibility under the Convention. The Court has never excluded that legislation may be found to be in direct breach of the Convention (see, inter alia, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III). In the present case the Court considers that it was the State having enacted the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9 of the Convention. That State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a serious crime from the profession of chartered accountants.", "49. The Court concludes, therefore, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9.", "IV. ALLEGED VIOLATION oF ARTICLE 9 OF THE CONVENTION", "50. The applicant argued that both his initial conviction for insubordination and the authorities' resultant refusal to appoint him as a chartered accountant constituted interference with his right to manifest his religious beliefs under Article 9 of the Convention. The Commission's case ‑ law to the effect that the Convention did not guarantee the right to conscientious objection to military service had to be reviewed in the light of present-day conditions. Virtually all Contracting States now recognised the right to alternative civilian service. Although the Court was admittedly not competent to examine the interference arising out of the applicant's initial conviction, the applicant submitted that the interference arising out of his non-appointment could not be deemed necessary in a democratic society.", "51. The Government argued that the authorities' refusal to appoint the applicant did not constitute an interference with his right under Article 9 of the Convention. In any event, it was necessary in a democratic society. At the time when the applicant refused to serve in the armed forces, Greek law only recognised the possibility of unarmed military service because it was considered that giving everybody the right to alternative civilian service could give rise to abuses. As a result, the sanction imposed on him was not disproportionate and the rule excluding persons convicted of a serious crime from certain positions had to be applied without any distinctions.", "52. The Commission did not consider it necessary to address the issue.", "53. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 9 and for the reasons set out in paragraph 43 above, it is not necessary also to consider whether there has been a violation of Article 9 taken on its own.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "54. The applicant also complained that the length of the proceedings he instituted before the Supreme Administrative Court to challenge his non ‑ appointment gave rise to a violation of Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "55. The applicant submitted that Article 6 § 1 of the Convention applied to the Supreme Administrative Court proceedings under examination because they did not concern access to the civil service but to a liberal, albeit tightly regulated, profession. Moreover, he argued that the proceedings were not concluded within a reasonable time. The case did not involve complex legal issues. The issues that were referred to the plenary of the Supreme Administrative Court were not raised by the applicant but by the Supreme Administrative Court 's Chamber itself. In any event, they could not justify a delay of more than seven years.", "56. The Government submitted that Article 6 § 1 was not applicable because the refusal to appoint the applicant was an administrative act falling within the sphere of public law. In any event, the case raised serious constitutional issues. Moreover, lawyers were on strike during many months in 1991, 1992, 1993 and 1994. In the light of all the above and the Supreme Administrative Court 's case-load, seven years was a reasonable period.", "57. The Commission considered that Article 6 applied because, although chartered accountants were appointed by administrative decision, their occupation was an independent profession. It also considered that complex legal issues were involved. However, the applicant was not responsible for any of the delays. Moreover, there were two periods of inactivity of a total duration of almost three years for which the Government did not offer any explanation apart from the Supreme Administrative Court 's case-load. In the view of the Commission, the proceedings were not reasonable in length.", "58. The Court recalls that, although regulated by administrative law, the profession of chartered accountants was one of the liberal professions in Greece. As a result, the proceedings instituted by the applicant to challenge the authorities' failure to appoint him to a post of chartered accountant involved a determination of his civil rights within the meaning of Article 6 § 1 of the Convention (see, among others, the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 32, § 94).", "59. The Court notes that the proceedings before the Supreme Administrative Court began on 8 May 1989, when the applicant lodged his application for judicial review, and ended on 28 June 1996, when the Third Chamber of the court rejected it. They lasted, therefore, seven years, one month and twenty days.", "60. The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I). Employment disputes, to which disputes concerning access to a liberal profession can be compared, call generally for expeditious decision (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206 ‑ C, pp. 32-33, § 17).", "61. The Court notes that the case involved legal issues of some complexity. However, the applicant did not cause any delays. And there were two periods of inactivity of a total duration of almost three years. The first such period started on 8 May 1989, when the applicant instituted the proceedings, and ended on 18 April 1991, when the Third Chamber first heard the case. The second started on 11 November 1994, when the plenary court referred the case back to the Third Chamber, and ended on 26 October 1995, when the Third Chamber issued the final decision. The only explanation offered by the Government for these periods of inactivity is the Supreme Administrative Court 's case-load.", "62. The Court cannot accept this explanation. According to its case-law, it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see the Vocaturo judgment cited above, ibid.). In the light of all the above and given that the proceedings concerned the applicant's professional future, the Court considers that the length of the proceedings failed to meet the “reasonable time” requirement.", "63. The Court concludes, therefore, that there has been a violation of Article 6 § 1 of the Convention.", "vi. APPLICATION OF aRTICLE 41 OF THE CONVENTION", "64. Under Article 41 of the Convention,", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "65. The applicant claimed 84,140,000 drachmas (GRD) for pecuniary damage, including approximately GRD 17,000,000 in respect of salaries lost between the authorities' refusal to appoint him and the abolition of the monopoly of the Institute of Chartered Accountants. In support of his claim, the applicant invoked “a survey conducted by the Institute of Chartered Accountants and a private chartered accountants' firm”.", "66. The Government submitted that freedom of religion had nothing to do with the above damage. In any event, they pointed out that during the entire period under examination the applicant worked in the private sector and that his claims were not supported by any official documents.", "67. The Court notes that, the Government's general remarks about the link between freedom of religion and pecuniary damages notwithstanding, it was not disputed that, if the authorities had not refused to appoint the applicant to a chartered accountant's post, he would have received an income related to this professional activity at least until the abolition of the monopoly of the Institute of Chartered Accountants. However, the Court also notes that the applicant was not unemployed during that period of time. Moreover, the applicant has not shown that the income he would have earned as a chartered accountant would have exceeded the income he had actually earned in private practice during the relevant period of time. The Court, therefore, does not award the applicant any compensation for pecuniary damage.", "B. Non-pecuniary damage", "68. The applicant claimed GRD 15,000,000 for non-pecuniary damage.", "69. The Government argued that no causal link was established between the violation of the Convention and the above sum. In any event, the claim was excessive.", "70. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of the violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time and of his right under Article 14 taken in conjunction with Article 9 to be free from discrimination in the exercise of his freedom of religion. The duration of the proceedings must have caused the applicant prolonged insecurity and anxiety about his eligibility to a professional activity to which he aspired. Moreover, the violation of Article 14 of the Convention taken in conjunction with Article 9 occurred in the making of decisions concerning the applicant's access to a profession, which is a central element for the shaping of one's life plans. Making its assessment on an equitable basis, the Court awards the applicant GRD 6,000,000 for non-pecuniary damage.", "C. Costs and expenses", "71. The applicant claimed GRD 6,250,000 in respect of costs and expenses incurred in the domestic and Convention proceedings. This amount included GRD 250,000 in lawyers' fees for the applicant's representation before the administrative authorities, GRD 1,700,000 in lawyers' fees for the proceedings before the Supreme Administrative Court, GRD 500,000 in lawyers' fees for the proceedings before the Commission, GRD 2,000,000 in lawyers' fees for the proceedings before the Court, GRD 1,300,000 for travel and subsistence expenses in connection with the appearance of the applicant and his lawyer at the hearing before the Court and GRD 500,000 for miscellaneous expenses.", "72. The Government argued that the claim should be awarded only to the extent that the costs and expenses were actually and necessarily incurred and were reasonable as to quantum.", "73. The Court agrees with the Government as to the test to be applied in order for costs and expenses to be included in an award under Article 41 of the Convention (see, among other authorities, Nikolova cited above, § 79). Moreover, it considers that the applicant's claim is excessive. The Court therefore awards the applicant GRD 3,000,000 under this head.", "D. Default interest", "74. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1970 and lives in İzmir.", "10. Until 1985 he lived in Germany, where he completed part of his schooling. He subsequently moved to Turkey, where he continued his education, eventually going on to university.", "11. In 1993 he became an active member of the Association of Opponents of War ( Savaş Karşıtları Derneği – “the SKD”), founded in 1992. Until late 1993 he represented the SKD at various international conferences in different countries. After the SKD was dissolved in November 1993 the İzmir Association of Opponents of War ( İzmir Savaş Karşıtları Derneği – “the ISKD”) was founded and the applicant served as its chairman from 1994 to 1998.", "12. In August 1995 the applicant was called up. Invoking his pacifist convictions, he refused to perform military service and publicly burned his call-up papers at a press conference in İzmir on 1 September 1995.", "13. On 8 October 1996 he was arrested. On 18 October 1996 he was indicted by the military prosecutor attached to the Ankara Military Court of the General Staff (“the General Staff Court ”), under Article 155 of the Criminal Code and Article 58 of the Military Penal Code, on a charge of inciting conscripts to evade military service.", "14. In a judgment of 28 January 1997 the Ankara General Staff Court sentenced the applicant, on the basis of the indictment of 18 October 1996, to six months ’ imprisonment and to a fine. The court also found that the applicant was a deserter and made an order requesting the military prosecutor attached to that court to enlist him.", "15. On 3 March 1997 the applicant lodged an appeal on points of law. In his grounds of appeal he relied on, among other provisions, Articles 9 and 10 of the Convention, claiming that he was a conscientious objector.", "16. In a judgment of 3 July 1997 the Military Court of Cassation upheld the first-instance judgment.", "17. In the meantime, on 22 November 1996, the applicant was transferred to the 9th Regiment, attached to the Bilecik gendarmerie command. He refused to wear military uniform or carry out the orders of the regiment ’ s commanding officer. He was detained in the regimental prison, where he refused to wear prison uniform.", "18. On 26 November 1996 the military prosecutor at the Court of the Eskişehir Tactical Air Forces Command (“the Command Court ”) indicted the applicant on a charge of “persistent disobedience” and sought his conviction under Article 87 of the Military Penal Code.", "19. Ruling on the applicant ’ s refusal to wear prison uniform, the Command Court, in a judgment of 2 December 1996 after urgent proceedings, restricted his right to receive visitors for fifteen days, as a disciplinary measure.", "20. Ultimately, in a judgment of 6 March 1997, the Command Court sentenced him to five months ’ imprisonment for persistent disobedience.", "21. On 4 July 1997 the Military Court of Cassation upheld the judgment of 6 March 1997.", "22. In the meantime, the applicant had failed to rejoin his regiment after being released on 27 December 199 6. He was arrested and remanded in custody.", "23. He was indicted on 7 March 1997 by the military prosecutor at the Command Court, on charges of desertion and “persistent disobedience”.", "24. In a judgment of 23 October 1997 the Command Court sentenced the applicant to ten months ’ imprisonment and to a fine.", "25. In the meantime, on 29 May 1997, he had been released on the condition that he rejoined his regiment on 31 May to perform his military service. As he failed to do so he was arrested on 9 October 1997 and transferred to Eskişehir prison to serve the sentence imposed by the Command Court on 6 March 1997.", "26. In an indictment of 16 October 1997 the military prosecutor at the Command Court called for the applicant ’ s conviction for desertion between 31 May 1997 and 9 October 1997.", "27. In a judgment of 22 January 1998 the Command Court sentenced the applicant to ten months ’ imprisonment on the basis of the charges in the bill of indictment.", "28. In a judgment of 30 September 1998 the Military Court of Cassation upheld the judgment of 22 January 1998.", "29. On 26 January 1998 the applicant was escorted to his regiment at Bilecik. He was arrested for refusing to wear military uniform.", "30. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment on account of incidents that had occurred on 28 January 1998.", "31. On 7 October 1998 the Military Court of Cassation upheld the judgment of 11 June 1998.", "32. After being escorted back to his regiment on 20 March 1998, the applicant was arrested on 21 March 1998 for refusing to wear his military uniform.", "33. In a judgment of 4 May 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment for “persistent disobedience” on 20 and 21 March 1998.", "34. In a judgment of 7 October 1998 the Military Court of Cassation upheld the judgment of 4 May 1998.", "35. In the meantime, on 4 May 1998, the applicant was sent back to his regiment, where he refused to wear military uniform.", "36. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment on account of the incidents of 4 May 1998.", "37. In a judgment of 7 October 1998 the Military Court of Cassation upheld the first-instance judgment of 11 June 1998.", "38. The applicant was released on 24 November 1998 and transferred to his regiment, but once again refused to wear military uniform.", "39. He was prosecuted and arrested on account of the incidents of 24 November 1998, and on 26 November 1998 the Command Court sentenced him to seven months and fifteen days ’ imprisonment.", "40. In a judgment of 22 September 1999 the military Court of Cassation upheld the judgment of 26 November 1998.", "41. The applicant served a total of 701 days in prison as a result of the above sentences, with the exception of the prison sentence imposed after his last conviction. He is wanted by the security forces for the execution of his sentence and is currently in hiding. He is no longer active in the association or in any other political activity. He has no official address and has broken off all contact with the authorities. He has been accommodated by his fiancée ’ s family. He has been unable to marry her legally or to recognise the son born to them." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "42. Article 72 of the Constitution provides:", "“Patriotic service is a right and a duty for every Turkish citizen. The conditions in which that service shall be performed or deemed to have been performed in the armed forces or civil service shall be laid down by law.”", "43. The legal provisions currently in force govern only the performance of national service in the armed forces. No alternative civil service is provided for by law.", "44. Section 1 of the Military Service Act (Law no. 1111 of 17 July 1927 ) reads:", "“ ... every man of Turkish nationality shall be obliged to perform military service.”", "45. Under section 10(2) of the Military Service Act, when the number of conscripts exceeds the requirements of the armed forces, they may be allowed, after carrying out basic military training, to perform military service for a shorter period in return for the payment of a tax, or to finish their service in the public sector.", "46. The Military Penal Code stipulates that once they have been placed on the muster rolls for military service, conscripts are required to report to the designated military unit, failing which they will be regarded as unlawfully absent and liable to a criminal penalty under Article 63 of the Military Penal Code. Any additional act of disobedience is regarded as “persistent disobedience” and falls under Article 87/1 of the Military Penal Code.", "47. The relevant passage from Article 155 of the Criminal Code reads as follows:", "“ ... Incitement to evade military service.", "It shall be an offence punishable by imprisonment of two months to two years and a fine ... – except in the cases provided for in the preceding Articles – to incite ... conscripts to evade military service ...”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "48. The applicant complained that he had been prosecuted and convicted on account of his beliefs as a pacifist and conscientious objector. In this connection he relied on Articles 3, 5, 8 and 9 of the Convention.", "A. The parties ’ submissions", "49. The applicant observed that every time he had refused to wear military uniform he had been convicted and imprisoned. After each release he had been escorted back to his regiment and then once again convicted and imprisoned for refusing to wear uniform. He submitted that the series of proceedings and convictions that he had had to face as a result of his beliefs amounted to a continuous situation. For the applicant, that interminable series of prosecutions and convictions constituted interference contrary to Article 9 and was not proportionate to the aims pursued by the national authorities.", "The applicant further argued that recent developments in Europe showed that the right to refuse to perform military service and to opt for conscientious objection had now become an established right. The new member States of the Council of Europe had, in principle, all recognised such a right. The European Union ’ s Charter of Fundamental Rights had also recognised the right to conscientious objection. He alleged that Turkey was the only country, among the twenty-six States in the Council of Europe which had enacted a special law on military service, not to have recognised that right.", "50. The Government submitted that Article 9 was not applicable in the present case. They argued that, according to the settled case-law of the Convention organs, the Convention did not afford a right to conscientious objection per se.", "51. As to the merits, the Government pointed out that in domestic law, the obligation to perform military service applied to all men of Turkish nationality and did not permit any exception on grounds of conscience. They noted that the applicant had been found guilty of military insubordination for having breached the rules on military discipline. For the Government, the offence with which the applicant had been charged was likely to cause conscripts some disquiet, or even disruption, and could legitimately justify a criminal penalty. The Government, referring to the cases of Heudens v. Belgium (no. 24630/94, Commission decision of 22 May 1995) and Autio v. Finland (no. 17086/90, Commission decision of 6 December 1991), further argued that Article 9 of the Convention should be interpreted in the light of Article 4 and that the right of conscientious objection was not recognised as such by the Convention.", "B. The Court ’ s assessment", "52. In its decision on the admissibility of the application, the Court decided to deal with the applicability of Article 9 at the same time as the merits. However, it considers that the present case should be examined under Article 3 of the Convention, for the following reasons.", "53. The Court points out that, in its Thlimmenos v. Greece judgment ([GC], no. 34369/97, § 43, ECHR 2000 ‑ IV), it did not find it necessary to examine whether the applicant ’ s initial conviction and the authorities ’ subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court acknowledged that it did not have to address, in that case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service might in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1.", "54. The same applies in the present case. As the case raises serious questions under Article 3 of the Convention, the Court does not find it necessary to pursue its examination of the applicability of Article 9.", "55. Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "56. This provision enshrines one of the most fundamental values of democratic society (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 88) and makes no provision for exceptions. No derogation from it is permissible, even under Article 15 of the Convention in time of war or other national emergency (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V, p. 1855, § 79).", "57. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Moreover, in assessing the evidence before it to decide whether or not there has been treatment in breach of Article 3, the Court adopts the standard of proof “ beyond reasonable doubt ”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (ibid., p. 65, § 161).", "58. Treatment will be considered to be “inhuman” within the meaning of Article 3 because, inter alia, it was premeditated, was applied over a long period of time and caused intense physical or mental suffering (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI). Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person in question and whether, as far as the consequences are concerned, it has adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, § 22). In order for an arrest or detention in connection with court proceedings to be degrading within the meaning of Article 3, the humiliation or debasement to which it gives rise must be of a special level and in any event different from the usual degree of humiliation inherent in every arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821 ‑ 22, § 55). When assessing the effects of the conditions of detention on the applicant, account also has to be taken of the cumulative effects of those conditions (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II).", "59. In the light of the above, the Court considers that, in the present case, the applicant ’ s successive convictions, and the continuing liability to prosecution that he faces for refusing to wear uniform on account of his philosophical beliefs, have certainly placed him in a situation of humiliation or debasement. The Court has to address the question whether that situation is different from the usual degree of humiliation inherent in criminal conviction or detention.", "60. The Court notes in the present case that, despite the large number of times the applicant has been prosecuted and convicted, the punishment has not exempted him from the obligation to perform his military service. He has already been sentenced eight times to terms of imprisonment for refusing to wear uniform. Upon each release from prison after serving his sentence, he has been escorted back to his regiment, where, upon his refusal to perform military service or put on uniform, he has once again been convicted and transferred to prison. Moreover, he has to live the rest of his life with the risk of repeatedly being sent to prison if he persists in refusing to perform compulsory military service.", "61. The Court notes in that connection that there is no specific provision in Turkish law governing penalties for those who refuse to wear uniform on grounds of conscience or religion. It seems that the relevant applicable rules are provisions of the Military Penal Code which classify as an offence any refusal to obey the orders of a superior officer. That legal framework is evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one ’ s beliefs. Because of the unsuitable nature of the general legislation applied to his situation the applicant ran, and still runs, the risk of an interminable series of prosecutions and criminal convictions.", "62. The Court points out that, in the Thlimmenos case, after noting that the applicant had already served a prison sentence for his refusal to wear uniform, it found that his exclusion from the profession of chartered accountant, as a second sanction, was disproportionate ( see Thlimmenos, cited above, § 47). In the present case, the numerous criminal proceedings brought against the applicant, the cumulative effects of the ensuing criminal convictions and the constant alternation between prosecution and imprisonment, together with the possibility that he would face prosecution for the rest of his life, are disproportionate to the aim of ensuring that he performs his military service. They are aimed more at repressing the applicant ’ s intellectual personality, inspiring in him feelings of fear, anguish and vulnerability capable of humiliating and debasing him and breaking his resistance and will. The clandestine life, amounting almost to “civil death”, which the applicant has been compelled to adopt is incompatible with the punishment regime of a democratic society.", "63. Under these circumstances, the Court considers that, taken as a whole and regard being had to its gravity and repetitive nature, the treatment inflicted on the applicant has caused him severe pain and suffering which goes beyond the normal element of humiliation inherent in any criminal sentence or detention. In the aggregate, the acts concerned constitute degrading treatment within the meaning of Article 3 of the Convention.", "64. In the light of the above, the Court holds that there has been a violation of Article 3 of the Convention.", "II. OTHER COMPLAINTS", "65. On the basis of the same facts, the applicant further alleged that there had been a violation of Articles 5, 8 and 9 of the Convention.", "66. Reiterating the arguments that they had submitted in connection with the complaints set out above, the Government considered that these complaints too should be dismissed.", "67. The applicant maintained these complaints.", "68. After examining the complaints, the Court notes that the facts which the applicant complained of are practically the same as those which underlay the complaints it examined in the previous parts of the judgment.", "It accordingly takes the view that it is not necessary to give a separate ruling on the complaints under Articles 5, 8 and 9 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "70. The applicant submitted that, if the Court found that there had been a violation of Article 9, the Government should be requested to enact legislation governing conscientious objection, in accordance with Recommendation no. R (87) 8 of the Committee of Ministers and Recommendation no. 1518 (2001) of the Parliamentary Assembly, to set aside his convictions and to discontinue proceedings against him.", "71. The applicant claimed the sum of 20,000 euros (EUR) for the non ‑ pecuniary damage that he claimed to have sustained on account of the anguish caused by the nine criminal prosecutions that had all resulted in convictions, together with his 701 days of imprisonment and the risk of being arrested at any time as a deserter.", "72. The Government considered that the amount claimed by the applicant was excessive and that the finding of a violation, if that were the Court ’ s decision, would be sufficient to make good the damage.", "73. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV ).", "74. Moreover, having regard to all the circumstances of the case, the Court acknowledges that the applicant has sustained non-pecuniary damage that the finding of a violation would not be sufficient to make good. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of that damage.", "B. Costs and expenses", "75. The applicant claimed 5,250 pounds sterling (GBP), equivalent to EUR 7,525.37, explaining that that sum was broken down into GBP 4,000 for his lawyers ’ fees, GBP 750 for research costs and GBP 500 for sundry expenses.", "76. The Government submitted that those claims were manifestly excessive. They pointed out that no documents had been submitted to justify the amounts charged by the applicant ’ s lawyers.", "77. The Court firstly observes that the applicant has not submitted full details of the number of hours ’ work completed by his lawyer or any bill of costs or fees. In accordance with Rule 60 § 2 of the Rules of Court, it cannot therefore allow the claim in full. It is nevertheless true that the applicant must have incurred some costs in respect of the work completed by his lawyers for purposes of his representation in this case, which is a somewhat complex one.", "Accordingly, the Court considers it reasonable to award the applicant the sum of EUR 1,000.", "C. Default interest", "78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1983 and lives in Yerevan.", "A. Background to the case", "10. The applicant is a Jehovah’s Witness. From 1997 he attended various Jehovah’s Witnesses religious services and he was baptised on 18 September 1999 at the age of 16.", "11. On 16 January 2000 the applicant was registered as a person liable for military service with the Erebuni District Military Commissariat ( Էրեբունի համայնքի զինվորական կոմիսարիատ ).", "12. On 16 January 2001 the applicant, at the age of 17, was called to undergo a medical examination, following which he was declared fit for military service. The applicant became eligible for military service during the 2001 spring draft (April-June).", "13. On 1 April 2001, at the outset of the draft, the applicant sent identical letters to the General Prosecutor of Armenia ( ՀՀ գլխավոր դատախազ ), the Military Commissioner of Armenia ( ՀՀ պաշտպանության նախարարության հանրապետական զինկոմիսար ) and the Human Rights Commission of the National Assembly ( ՀՀ ազգային ժողովին առընթեր մարդու իրավունքների հանձնաժողով ), with the following statement:", "“I, Vahan Bayatyan, born in 1983, inform you that I have studied the Bible since 1996 and have trained my conscience by the Bible in harmony with the words of Isaiah 2:4, and I consciously refuse to perform military service. At the same time I inform you that I am ready to perform alternative civilian service in place of military service.”", "14. In early May a summons to appear for military service on 15 May 2001 was delivered to the applicant’s home. On 14 May 2001 an official of the Erebuni District Military Commissariat telephoned the applicant’s home and asked his mother whether the applicant was aware that he had been called to appear at the Commissariat to commence military service the following day. That same evening, the applicant temporarily moved away from his home for fear of being forcibly taken into the military.", "15. On 15 and 16 May 2001 officials from the Commissariat telephoned the applicant’s mother, demanding to know his whereabouts. They threatened to take him into the military by force if he did not come voluntarily. On 17 May 2001, early in the morning, the officials came to the applicant’s home. His parents were asleep and did not open the door. On the same date, the applicant’s mother went to the Commissariat, where she stated that the applicant had left home and she did not know when he would come back. According to the applicant, the Commissariat made no further efforts to contact his family.", "16. On 29 May 2001 the Commission for State and Legal Affairs of the National Assembly ( ՀՀ ազգային ժողովի պետական-իրավական հարցերի հանձնաժողով ) sent a reply to the applicant’s letter of 1 April 2001, stating:", "“In connection with your declaration, ... we inform you that in accordance with the legislation of the Republic of Armenia every citizen ... is obliged to serve in the Armenian army. Since no law has yet been adopted in Armenia on alternative service, you must submit to the current law and serve in the Armenian army.”", "17. In early to mid-June 2001 the applicant returned home, where he lived until his arrest in September 2002.", "18. On 12 June 2001 the National Assembly declared a general amnesty which applied only to those who had committed crimes before 11 June 2001 and was to remain in force until 13 September 2001.", "B. The criminal proceedings against the applicant", "19. On 26 June 2001 the Erebuni Military Commissar ( Էրեբունի համայնքի զինկոմիսար ) gave notice to the Erebuni District Prosecutor ( Էրեբունի համայնքի դատախազ ) that the applicant had failed to report for military service on 15 May 2001 and was intentionally avoiding service in the army.", "20. During July and on 1 August 2001 the applicant, together with his father and his defence counsel, went on several occasions to the District Prosecutor’s Office to enquire with the relevant investigator about his situation and to discuss the forthcoming proceedings.", "21. On 1 August 2001 the investigator instituted criminal proceedings under Article 75 of the Criminal Code on account of the applicant’s draft evasion. According to the applicant, the investigator’s superior, the prosecutor, refused to bring charges against him until further investigations had been carried out. On 8 August 2001 the applicant, who apparently wanted to benefit from the above amnesty, complained about this to the General Prosecutor’s Office ( ՀՀ գլխավոր դատախազություն ). He received no reply to this complaint.", "22. On 1 October 2001 the investigator issued five decisions in respect of the applicant: (1) to bring a charge of draft evasion against the applicant under Article 75 of the Criminal Code; (2) to apply to the court for authorisation for the applicant’s detention on remand; (3) to declare the applicant a fugitive and institute a search for him; (4) to apply to the court for authorisation to monitor the applicant’s correspondence; and (5) to suspend the proceedings until the applicant had been found. This last order stated:", "“... since, having undertaken investigative and search measures, the attempts to find the wanted [applicant] within two months ... have been unsuccessful and his whereabouts are unknown, ... [it is necessary] to suspend the investigation ... and ... to activate the search measures aimed at finding the accused.”", "23. Neither the applicant nor his family were notified of these decisions, despite the fact that since mid-June 2001 he had been living at the family home and that he had met with the investigator on several occasions in July and August 2001.", "24. On 2 October 2001 the Erebuni and Nubarashen District Court of Yerevan ( Երևան քաղաքի Էրեբունի և Նուբարաշեն համայնքների առաջին ատյանի դատարան ) authorised the monitoring of the applicant’s correspondence and his detention on remand. Neither the applicant nor his family were notified about these decisions, and the investigating authority made no attempt to contact them until the applicant’s arrest in September 2002.", "25. On 26 April 2002 the Convention came into force in respect of Armenia.", "C. The applicant’s arrest and trial", "26. On 4 September 2002, while the applicant was at work, two police officers went to his family home, informed his parents that he was on the wanted list and enquired about his whereabouts.", "27. On 5 September 2002 the police officers returned and accompanied the applicant to a local police station, where they drew up a record of the applicant’s voluntary surrender which stated that the applicant, having found out that he was on the wanted list, decided to appear at the police station. On the same date, the applicant was placed in the Nubarashen detention facility.", "28. On 9 September 2002 the investigating authority resumed the criminal proceedings against the applicant.", "29. On 11 September 2002 the applicant was served with the 1 October 2001 charge (see paragraph 22 above) for the first time. During his questioning on the same date, the applicant submitted that he consciously refused to perform military service because of his religious beliefs but was ready to perform alternative civilian service instead.", "30. On the same date, the applicant and his defence counsel were granted access to the case file. The bill of indictment was finalised on 18 September 2002 and approved by the prosecutor on 23 September 2002.", "31. On 22 October 2002 the applicant’s trial commenced in the Erebuni and Nubarashen District Court of Yerevan. The trial was adjourned until 28 October 2002 because the applicant had not been served with a copy of the indictment.", "32. On 28 October 2002, at the court hearing, the applicant made the same submissions as during his questioning (see paragraph 29 above).", "33. On the same date, the Erebuni and Nubarashen District Court of Yerevan found the applicant guilty as charged and sentenced him to one year and six months in prison.", "34. On 29 November 2002 the prosecutor lodged an appeal against this judgment, seeking a heavier punishment. The appeal stated:", "“The [applicant] did not accept his guilt, explaining that he refused [military] service having studied the Bible, and as a Jehovah’s Witness his faith did not permit him to serve in the armed forces of Armenia.", "[The applicant] is physically fit and is not employed.", "I believe that the court imposed an obviously lenient punishment and did not take into consideration the degree of social danger of the crime, the personality of [the applicant], and the clearly unfounded and dangerous reasons for [the applicant’s] refusal of [military] service.”", "35. On 19 December 2002 the applicant lodged objections in reply to the prosecutor’s appeal in which he argued that the judgment imposed was in violation of his freedom of conscience and religion guaranteed by Article 23 of the Armenian Constitution, Article 9 of the Convention and other international instruments. He further argued that the absence of a law on alternative civilian service could not serve as a justification for imposing criminal liability on a person refusing military service for reasons of conscience.", "36. On 24 December 2002, in the proceedings before the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ), the prosecutor argued, inter alia, that a heavier sentence should be imposed also because the applicant had gone into hiding during the investigation. According to the applicant, during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service; in particular, both the prosecutor and one of the judges offered to terminate his case if he dropped his objection and performed his military duty.", "37. On the same date, the Court of Appeal decided to grant the prosecutor’s appeal and increased the applicant’s sentence to two and a half years, stating that:", "“The court of first instance, when sentencing [the applicant], took into account that the offence [the applicant] had committed was not a grave one, that he was young, he had a clean record, he had confessed his guilt, he had actively assisted in the disclosure of the crime and he had sincerely repented.", "However, in the course of the appeal proceedings it was established that not only does [the applicant] not accept his guilt, but he does not regret having committed the crime; not only did he not assist in the disclosure of the offence, but he hid from the investigation and his whereabouts were unknown, so a search for him had to be initiated.", "Based on these circumstances, as well as taking into account the nature, motives and degree of social danger of the crime, the Court of Appeal considers that the prosecutor’s appeal must be granted, and a heavier and adequate punishment must be imposed on [the applicant].”", "38. On an unspecified date, the applicant lodged an appeal on points of law against that judgment, in which he raised arguments similar to the ones made in his objections of 19 December 2002 (see paragraph 35 above). He reiterated his willingness to perform alternative civilian service and submitted that, instead of spending two and a half years in prison, he could have done socially useful work. According to him, such a possibility was envisaged under section 12 of the Military Liability Act (see paragraph 43 below). The applicant further argued that the principle of alternative service was enshrined in section 19 of the Freedom of Conscience and Religious Organisations Act (see paragraph 44 below), and the absence of appropriate implementation mechanisms could not be blamed on him.", "39. On 24 January 2003 the Court of Cassation ( ՀՀ վճռաբեկ դատարան ) upheld the judgment of the Court of Appeal, finding, inter alia, that the rights guaranteed by Article 23 of the Constitution were subject to limitations under its Article 44 (see paragraph 41 below), in the interests, for example, of State security, public safety and the protection of public order. Similar limitations were also envisaged by Article 9 § 2 of the Convention.", "40. On 22 July 2003 the applicant was released on parole after having served about ten and a half months of his sentence." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution of Armenia of 1995 (prior to the amendments introduced in 2005)", "41. The relevant provisions of the Constitution read as follows:", "Article 23", "“Everyone has the right to freedom of thought, conscience and religion.”", "Article 44", "“The fundamental rights and freedoms of man and the citizen enshrined in Articles 23 to 27 of the Constitution can be restricted only by law if necessary for the protection of State security and public safety, public order, public health and morals and the rights, freedoms, honour and reputation of others.”", "Article 47", "“Every citizen shall participate in the defence of the Republic of Armenia in accordance with the procedure prescribed by law.”", "B. The Criminal Code of 1961 (repealed on 1 August 2003)", "42. The relevant provisions of the Criminal Code read as follows:", "Article 75", "Evasion of a regular call-up to active military service", "“Evasion of a regular call-up to active military service is punishable by imprisonment for a period of one to three years.”", "C. The Military Liability Act (in force since 16 October 1998)", "43. The relevant provisions of the Military Liability Act read as follows:", "Section 3", "Military liability", "“(1) Military liability is the constitutional obligation of citizens to participate in the defence of the Republic of Armenia.”", "Section 11", "Conscription into compulsory military service", "“(1) Male conscripts and officers of the first category reserve whose age is between 18 and 27 [and] who have been found physically fit for military service in peacetime shall be drafted for compulsory military service.”", "Section 12", "Exemption from compulsory military service", "“(1) [A citizen] may be exempted from compulsory military service: (a) if the national recruiting commission recognises him to be unfit for military service on account of poor health and strikes him off the military register; (b) if his father (mother) or brother (sister) died while performing the duty of defending Armenia or in [the Armenian] armed forces and other troops, and he is the only male child in the family; (c) by government decree; (d) if he has performed compulsory military service in foreign armed forces before acquiring Armenian citizenship; or (e) he has a science degree (“Candidate” of Science or Doctor of Science) and is engaged in specialised, scientific or educational activities.”", "Section 16", "Granting deferral of conscription into compulsory military service on other grounds", "“...", "(2) In specific cases the Government may define categories of citizens and particular individuals to be granted deferral from conscription into compulsory military service.”", "D. The Freedom of Conscience and Religious Organisations Act (in force since 6 July 1991)", "44. The relevant provisions of the Freedom of Conscience and Religious Organisations Act read as follows:", "Preamble", "“The Supreme Soviet of the Republic of Armenia adopts this law on freedom of conscience and religious organisations, ... being guided by the principles of human rights and fundamental freedoms established in international law and faithful to the provisions of Article 18 of the International Covenant on Civil and Political Rights ...”", "Section 19", "“All civic obligations envisaged by law apply equally to believing members of religious organisations as they do to other citizens.", "In specific cases of contradiction between civic obligations and religious convictions, the matter of discharging one’s civic obligations can be resolved by means of an alternative principle, according to the procedure prescribed by law, by mutual agreement between the relevant State authority and the given religious organisation.”", "E. The Alternative Service Act (passed on 17 December 2003 and which came into force on 1 July 2004)", "45. The relevant provisions of the Alternative Service Act, with their subsequent amendments introduced on 22 November 2004, read as follows:", "Section 2", "The notion and types of alternative service", "“(1) Alternative service, within the meaning of this Act, is service replacing the compulsory fixed-period military service which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions.", "(2) Alternative service includes the following types: (a) alternative military [service, namely] military service performed in the armed forces of Armenia which does not involve being on combat duty or the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely] labour service performed outside the armed forces of Armenia.", "(3) The purpose of alternative service is to ensure the fulfilment of a civic obligation to the motherland and society and it does not have a punitive, demeaning or degrading nature.”", "Section 3", "Grounds for performing alternative service", "“(1) An Armenian citizen whose creed or religious beliefs do not allow him to carry out military service in a military unit, including the carrying, keeping, maintenance and use of arms, may perform alternative service.”", "III. COMPARATIVE LAW", "46. It follows from the materials available to the Court on the legislation of the member States of the Council of Europe that almost all the member States which ever had or still have compulsory military service introduced laws at various points recognising and implementing the right to conscientious objection, some of them even before becoming members of the Council of Europe. The earliest was the United Kingdom in 1916, followed by Denmark (1917), Sweden (1920), the Netherlands (1920-23), Norway (1922), Finland (1931), Germany (1949), France and Luxembourg (1963), Belgium (1964), Italy (1972), Austria (1974), Portugal (1976) and Spain (1978).", "47. A big wave of recognitions ensued in the late 1980s and the 1990s, when almost all the then or future member States which had not yet done so introduced such a right into their domestic legal systems. These include Poland (1988), the Czech Republic and Hungary (1989), Croatia (1990), Estonia, Moldova and Slovenia (1991), Cyprus, the former Federal Republic of Yugoslavia (which in 2006 divided into two member States: Serbia and Montenegro, both of which retained that right) and Ukraine (1992), Latvia (1993), Slovakia and Switzerland (1995), Bosnia and Herzegovina, Lithuania and Romania (1996), Georgia and Greece (1997) and Bulgaria (1998).", "48. From the remaining member States, “the former Yugoslav Republic of Macedonia”, which as early as in 1992 had provided for a possibility to perform non-armed military service, introduced a genuine alternative civilian service in 2001. Russia and Albania, which in 1993 and 1998 respectively had constitutionally recognised the right to conscientious objection, fully implemented it through laws in 2004 and 2003 respectively. Azerbaijan constitutionally recognised the right to conscientious objection in 1995 but no implementing laws have yet been introduced. Conscientious objectors are not recognised in Turkey.", "49. In most of the member States where conscientious objection was or is recognised and fully implemented, conscientious objector status could or can be claimed on the basis not only of religious beliefs but also of a relatively broad range of personal beliefs of a non-religious nature, the only exceptions being Romania and Ukraine, where the right to claim conscientious objector status is limited to religious grounds alone. In some member States, the right to claim conscientious objector status only applied or applies during peacetime, as in Poland, Belgium and Finland, while in others, like Montenegro and Slovakia, the right to claim such status by definition applies only in time of mobilisation or war. Finally, some member States, like Finland, allow certain categories of conscientious objectors to be exempted also from alternative service.", "IV. RELEVANT INTERNATIONAL DOCUMENTS AND PRACTICE", "A. European documents", "1. The Council of Europe", "(a) Armenia-specific documents", "Opinion no. 221 (2000) of the Parliamentary Assembly of the Council of Europe: Armenia’s application for membership of the Council of Europe", "50. On 28 June 2000 the Parliamentary Assembly of the Council of Europe adopted its Opinion no. 221 on Armenia’s application to join the Council of Europe. The Parliamentary Assembly concluded its opinion by recommending the Committee of Ministers of the Council of Europe to invite Armenia to become a member, on the understanding that a number of commitments would be fulfilled within stipulated time-limits. The relevant extract from the opinion reads as follows:", "“13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments: ... to adopt, within three years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose, when the law on alternative service has come into force, to perform non-armed military service or alternative civilian service; ...”", "(b) General documents", "(i) The Parliamentary Assembly of the Council of Europe", "51. The right to conscientious objection was first mentioned by the Parliamentary Assembly as early as in 1967 in its Resolution 337 (1967), in which it laid down the following basic principles:", "“1. Persons liable to conscription for military service who, for reasons of conscience or profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives, refuse to perform armed service shall enjoy a personal right to be released from the obligation to perform such service.", "2. This right shall be regarded as deriving logically from the fundamental rights of the individual in democratic Rule of Law States which are guaranteed in Article 9 of the European Convention on Human Rights.”", "52. Based on this Resolution, the Parliamentary Assembly adopted Recommendation 478 (1967), calling upon the Committee of Ministers to invite member States to bring their national legislation as closely as possible into line with the basic principles. The Parliamentary Assembly further reiterated and developed the basic principles in its Recommendation 816 (1977) and Recommendation 1518 (2001). In the latter Recommendation, it stated that the right to conscientious objection was a “fundamental aspect of the right to freedom of thought, conscience and religion” enshrined in the Convention. It pointed out that only five member States had not yet recognised that right and recommended the Committee of Ministers to invite them to do so.", "53. In 2006 the Parliamentary Assembly adopted Recommendation 1742 (2006) concerning the human rights of members of the armed forces, calling upon the member States, inter alia, to introduce into their legislation the right to be registered as a conscientious objector at any time and the right of career servicemen to be granted such status.", "(ii) The Committee of Ministers", "54. In 1987 the Committee of Ministers adopted Recommendation No. R (87) 8, recommending the member States to recognise the right to conscientious objection and inviting the governments which had not yet done so to bring their national law and practice into line with the following basic principle:", "“Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service ... [and] may be liable to perform alternative service; ...”", "55. In 2010 the Committee of Ministers adopted Recommendation Rec(2010)4, recommending the member States to ensure that any limitations on the right to freedom of thought, conscience and religion of members of the armed forces comply with the requirements of Article 9 § 2 of the Convention, that conscripts have the right to be granted conscientious objector status and that an alternative service of a civilian nature be proposed to them. The explanatory memorandum to this Recommendation noted, in particular:", "“The right to conscientious objection has not to date been recognised by the Court as being covered by Article 9 of the Convention. However, the current trend in international fora is to consider it part and parcel of the freedom of conscience and religion.”", "2. The European Union", "(a) The European Parliament", "56. The principles developed by the Council of Europe bodies were echoed in the Resolutions of the European Parliament of 7 February 1983, 13 October 1989, 11 March 1993 and 19 January 1994. The European Parliament similarly considered that the right to conscientious objection was inherent in the concept of freedom of thought, conscience and religion, as recognised in Article 9 of the Convention, and called upon the member States of the European Union to incorporate the right to conscientious objection as a fundamental right in their legal systems.", "(b) The Charter of Fundamental Rights of the European Union", "57. Article 10 of the Charter of Fundamental Rights of the European Union, which was proclaimed on 7 December 2000 and which came into force on 1 December 2009, provides:", "“1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.", "2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.”", "B. Other international documents and practice", "1. The United Nations", "(a) The United Nations Commission on Human Rights", "58. In its Resolution 1987/46, the United Nations Commission on Human Rights appealed to the States to recognise the right to conscientious objection and to refrain from subjecting to imprisonment persons exercising that right. In its subsequent Resolution 1989/59, the Commission went one step further and itself recognised the right to conscientious objection as a legitimate exercise of the right to freedom of thought, conscience and religion as laid down in Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Further Resolutions on the subject – Resolutions 1993/84, 1995/83 and 1998/77 – confirmed and expanded the existing principles. Subsequently, the Commission repeatedly called on States to review their laws and practice in the light of its Resolutions. In Resolution 2004/35, it further encouraged States to consider granting amnesties and restitution of rights for those who had refused to undertake military service on grounds of conscientious objection.", "(b) The ICCPR and the practice of the United Nations Human Rights Committee (UNHRC)", "59. The relevant provisions of the ICCPR, which was adopted by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, came into force on 23 March 1976 and was ratified by Armenia on 23 June 1993, read as follows:", "Article 8", "“...", "3. (a) No one shall be required to perform forced or compulsory labour;", "...", "(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:", "...", "(ii) Any service of a military character and, in countries where conscientious objection is recognised, any national service required by law of conscientious objectors; ...”", "Article 18", "“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. ...”", "60. The UNHRC, the body that monitors implementation of the ICCPR, when examining individual complaints initially took a view that the ICCPR, and in particular its Article 18, did not provide for the right to conscientious objection, especially taking into account Article 8 § 3 (c) (ii). A complaint brought by a Finnish conscientious objector was declared inadmissible on that ground as incompatible with the provisions of the ICCPR (see L.T.K. v. Finland, Communication no. 185/1984, UN doc. CCPR/C/25/D/185/1984, 9 July 1985).", "61. The first shift in the UNHRC’s approach took place in its decision of 7 November 1991 in J.P. v. Canada (Communication no. 446/1991, UN doc. CCPR/C/43/D/446/1991), in which it accepted for the first time, albeit obiter, that “Article 18 of the [ICCPR] certainly [protected] the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures”.", "62. In 1993 the UNHRC adopted its General Comment no. 22 on Article 18 of the ICCPR, providing, inter alia, the following interpretation of that provision:", "“11. ... The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. ...”", "63. A further development in the UNHRC’s position occurred in its views adopted on 3 November 2006 in the cases of Yeo-Bum Yoon v. Republic of Korea and Myung-Jin Choi v. Republic of Korea (Communications nos. 1321/2004 and 1322/2004, UN doc. CCPR/C/88/D/1321-1322/2004, 23 January 2007), in which the UNHRC for the first time had to deal with complaints of two convicted Jehovah’s Witnesses with respect to a country where the right to conscientious objection was not recognised. The UNHRC held as follows:", "“8.2. The Committee ... notes that Article 8, paragraph 3, of the Covenant excludes from the scope of ‘forced or compulsory labour’, which is proscribed, ‘any service of a military character and, in countries where conscientious objection is recognised, any national service required by law of conscientious objectors’. It follows that Article 8 of the Covenant itself neither recognises nor excludes a right of conscientious objection. Thus, the present claim is to be assessed solely in the light of Article 18 of the Covenant, the understanding of which evolves as that of any other guarantee of the Covenant over time in view of its text and purpose.", "8.3. ... The authors’ conviction and sentence, accordingly, amounts to a restriction on their ability to manifest their religion or belief. Such restriction must be justified by the permissible limits described in paragraph 3 of Article 18, that is, that any restriction must be prescribed by law and be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. ...”", "64. The UNHRC went on to conclude that the interference with the applicants’ rights guaranteed by Article 18 of the ICCPR was not necessary and that there had been a violation of that provision.", "(c) The Working Group on Arbitrary Detention", "65. The question of detention of conscientious objectors has also been addressed on several occasions under its individual petitions procedure by the Working Group on Arbitrary Detention which was established in 1991 by the United Nations Commission on Human Rights. Until recently, the main concern of the Working Group was the repeated punishment and incarceration of conscientious objectors, which it found arbitrary on the ground that it violated the principle of ne bis in idem (see, for example, Opinion no. 36/1999 (Turkey) and Opinion no. 24/2003 (Israel)). In 2008 the Working Group went one step further and found a single instance in which a conscientious objector in Turkey had been prosecuted, convicted and deprived of his liberty to have been arbitrary (see Opinion no. 16/2008 (Turkey)).", "2. The Inter-American system of human rights protection", "66. Articles 6 § 3 (b) and 12 of the American Convention on Human Rights are similar to Articles 4 § 3 (b) and 9 of the European Convention.", "67. In 1997 and 1998 the Inter-American Commission on Human Rights issued recommendations inviting the member States whose legislation still did not exempt conscientious objectors from military or alternative service to review their legal regimes and make modifications consistent with the spirit of international human rights law through legislative amendments providing for exemptions from military service in cases of conscientious objection.", "68. On 10 March 2005 the Inter-American Commission decided on the first individual petition concerning the right to conscientious objection. The Commission found that Article 12 was to be read in conjunction with Article 6 § 3 (b) and concluded that conscientious objection was protected under the American Convention only in countries where it was recognised. In doing so, the Inter-American Commission relied heavily on the case-law of the European Commission of Human Rights and the UNHRC as it existed prior to 2005 (see Cristián Daniel Sahli Vera and Others v. Chile, Case no. 12.219, Report no. 43/05, 10 March 2005, §§ 95-97). This approach was later confirmed by the Inter-American Commission in another case (see Alfredo Díaz Bustos v. Bolivia, Case no. 14/04, Report no. 97/05, 27 October 2005, § 19).", "3. The Ibero-American Convention on Young People’s Rights", "69. On 10 to 11 October 2005 the Ibero-American Convention on Young People’s Rights, which sets out a number of specific rights for individuals aged between 15 and 24 years, was adopted in the framework of the Ibero ‑ American Youth Organisation. Its Article 12, entitled “Right to conscientious objection”, reads as follows:", "“1. Youth have the right to make conscientious objection towards obligatory military service.", "2. The States Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of obligatory military service.", "...”", "4. The Organization for Security and Co-operation in Europe (OSCE)", "70. The OSCE also took up the question of conscientious objection in 1990. The participating States noted at the Human Dimension Conference that the United Nations Commission on Human Rights had recognised the right to conscientious objection and agreed to consider introducing various forms of alternative service in their legal systems. In 2004 the OSCE prepared the “Guidelines for Review of Legislation Pertaining to Religion or Belief” in which it observed that, although there was no controlling international standard on this issue, the clear trend in most democratic States was to allow those with serious moral or religious objections to military service to perform alternative (non-military) service.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "71. The applicant complained that his conviction for refusal to serve in the army had violated Article 9 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "72. In its judgment of 27 October 2009, the Chamber first noted that the majority of Council of Europe member States had adopted laws providing for alternative service for conscientious objectors. However, Article 9 had to be read in the light of Article 4 § 3 (b) of the Convention [1], which left the choice of recognising conscientious objectors to each Contracting Party. Thus, the fact that the majority of the Contracting Parties had recognised this right could not be relied upon to hold a Contracting Party which had not done so to be in violation of its Convention obligations. This factor could not therefore serve a useful purpose for the evolutive interpretation of the Convention. The Chamber found that, in such circumstances, Article 9 did not guarantee a right to refuse military service on conscientious grounds and was therefore inapplicable to the applicant’s case. It concluded that, in view of the inapplicability of Article 9, the authorities could not be regarded as having acted in breach of their Convention obligations by convicting the applicant for his refusal to perform military service.", "B. The parties’ submissions", "1. The applicant", "(a) Applicability of Article 9", "73. The applicant submitted that, by refusing to apply the “living instrument” doctrine, the Chamber had crystallised the interpretation made by the European Commission of Human Rights to the effect that Article 4 § 3 (b) limited the applicability of Article 9 to conscientious objectors without justification or explanation. However, Article 4 § 3 (b) could not be legitimately used to deny the right to conscientious objection under Article 9, especially in case of Armenia which had legally committed itself since 2000 to recognise conscientious objectors. Relying on the travaux préparatoires, the applicant claimed that Article 4 § 3 (b) had never been meant to be read in conjunction with Article 9. Its sole purpose was to delimit the right guaranteed by Article 4 § 2 and it neither recognised nor excluded the right to conscientious objection. Article 4 § 3 (b) was not being applied to other provisions of the Convention and there was no reason for it to apply to Article 9 either. If Article 9 was never meant to apply to conscientious objectors, such a restriction could easily have been incorporated by the drafters of the Convention. Hence, by deciding to apply Article 9 to conscientious objectors, the Court would not be deriving from the Convention a right which was not included therein at the outset.", "74. According to the applicant, present-day conditions supported the recognition of the right to conscientious objection under Article 9, taking into account the gradual recognition of this right in almost all the member States of the Council of Europe. This consensus was also reflected in the position of the organs of the Council of Europe and the European Union. Moreover, recognition of the right to conscientious objection had become one of the preconditions for new member States wishing to join the Council of Europe. Furthermore, the Chamber had failed to take into account the important developments concerning the issue before the United Nations organs, including the interpretation given by the UNHRC to the counterpart provisions of the ICCPR. There was a need to clarify the Court’s position on this issue because it had always been the Commission, and not the Court, which had refused to apply Article 9 to conscientious objectors. Furthermore, the Chamber’s reference to the Commission’s position was neither appropriate, since it ran counter to the object and purpose of the Convention, nor accurate, since an evolution in favour of the recognition of the right to conscientious objection could be discerned even in the Commission’s position. The applicant lastly claimed that the issue went beyond his case, since it had serious consequences affecting hundreds of young men in a similar situation in the Council of Europe and thousands of others throughout the world.", "(b) Compliance with Article 9", "75. The applicant submitted that his conviction had amounted to an interference with his right to manifest his religious beliefs. This interference was not prescribed by law because the Armenian authorities, by convicting him, had acted in violation of the legally binding commitment which they had undertaken when joining the Council of Europe, namely to pardon all conscientious objectors sentenced to prison terms. This international obligation had become an integral part of Armenia’s domestic legal system and from then on all conscientious objectors who refused to perform military service could reasonably expect to be freed from that obligation and eventually be given the option of performing alternative civilian service. As a result, the domestic law was not sufficiently precise, since it was not harmonised with the legally binding international commitments of Armenia.", "76. The applicant further submitted that the interference was not prescribed by law also because Armenia, having become a party to the ICCPR in 1993, had failed to be faithful to its Article 18 and the subsequent case-law of the UNHRC as required by the Freedom of Conscience and Religious Organisations Act (see paragraph 44 above).", "77. The applicant further argued that the interference was not necessary in a democratic society. Firstly, the fact that he – a conscientious objector who was committed to living peacefully with his neighbours and who had a blank criminal record – was imprisoned and treated like a dangerous criminal was totally unnecessary in a democratic society. In particular, he had been subjected to a harassing search process, had later been arrested and locked up in a cell without any bedding and with six others detained for various crimes, and had been subjected to insults and verbal abuse by the guards. Secondly, he had been subjected to wholly disproportionate punishment and treatment considering that he was simply exercising his fundamental right to freedom of thought, conscience and religion. Thirdly, his imprisonment had not been necessary also because the Armenian authorities had pardoned other individuals in a similar situation. Lastly, the military protection of the country would not be disorganised and weakened if persons like him were not punished. In particular, Armenia had 125,000 active conscripts in 2007 and 551,000 potential ones, while only 41 Jehovah’s Witnesses were imprisoned. Moreover, since 2002 only three individuals belonging to other religions had decided to become conscientious objectors. Such insignificant numbers could not have a negative impact on the military capacity of Armenia.", "2. The Government", "(a) Applicability of Article 9", "78. The Government submitted that the rights guaranteed by the Convention and the Armenian Constitution, including the right to freedom of thought, conscience and religion, were to be applied to everyone equally and without discrimination. The applicant, an Armenian citizen, was obliged under the Constitution to perform compulsory military service regardless of his religious convictions and the fulfilment of such obligation could not be considered an interference with his rights. The law did not include such grounds for exemption from military service as being a Jehovah’s Witness. Thus, exemption from compulsory military service on a ground not prescribed by law would have been in breach of the principle of equality and non-discrimination.", "79. The Government agreed that the Convention was a “living instrument”. However, the question of whether Article 9 of the Convention was applicable to the present case was to be considered from the point of view of the interpretation of the Convention existing at the material time. The applicant had been convicted in the years 2001-02 and his conviction at that time had been in line with the approach of the international community and was considered to be lawful and justified under the Convention as interpreted by the Commission and the Court. In particular, the Commission had found in Peters v. the Netherlands (no. 22793/93, Commission decision of 30 November 1994, unreported) and Heudens v. Belgium (no. 24630/94, Commission decision of 22 May 1995, unreported), which were the latest decisions on the matter, that the right to freedom of thought, conscience and religion guaranteed by Article 9 did not concern exemption from compulsory military service on religious or political grounds. The Court had not even recognised the applicability of Article 9 in its more recent judgments, where it had not found it necessary to examine the issue (see, for example, Thlimmenos v. Greece [GC], no. 34369/97, § 43, ECHR 2000-IV, and Ülke v. Turkey, no. 39437/98, §§ 53-54, 24 January 2006). The Armenian authorities had therefore acted in compliance with the requirements of the Convention. Given the established case-law on this matter, they could not have foreseen the possibility of a new interpretation of Article 9 by the Court and consequently could not have made their actions comply with that possible “new approach”.", "80. The Government admitted that the majority of member States of the Council of Europe had adopted laws providing for various forms of alternative service for conscientious objectors. However, the provisions of Article 4 § 3 (b), which clearly left the choice of recognising conscientious objectors to each Contracting Party, could not be overlooked, and the fact that the majority of them had recognised this right could not be relied upon to hold a Contracting Party which had not done so to be in violation of its obligations under the Convention. In sum, Article 9 read in the light of Article 4 § 3 (b) did not guarantee a right to refuse military service on conscientious grounds and there had been no interference with the applicant’s rights guaranteed by Article 9.", "81. The Government further submitted that there were at present about sixty registered religious organisations in Armenia, including the Jehovah’s Witnesses, nine branches of religious organisations and one agency. So if each of them insisted that military service was against their religious convictions, a situation would arise in which not only members of Jehovah’s Witnesses but also those of other religious organisations would be able to refuse to perform their obligation to defend their home country. Furthermore, members of Jehovah’s Witnesses or any other religious organisation might equally assert that, for instance, payment of taxes and duties was against their religious convictions and the State would be obliged not to convict them as this might be found to be in violation of Article 9. Such an approach was unacceptable in view of the fact that, in order to avoid the fulfilment of his or her obligations towards the State, a person could become a member of this or that religious organisation.", "82. The Government lastly submitted that, as far as Armenia’s obligations undertaken upon accession to the Council of Europe were concerned, on 17 December 2003 the Alternative Service Act was adopted. The authorities had thereby accepted the possibility of exemption from military service on religious grounds, while conscientious objectors were provided with an alternative means of performing their constitutional obligation. Thus, at present, conscientious objectors were being convicted only if they also refused to perform the alternative service. As regards the obligation to pardon all conscientious objectors sentenced to prison terms, the Government insisted that the authorities had complied with it by exempting the applicant from serving the imposed sentence. In particular, after having being sentenced to two years and six months’ imprisonment, the applicant had been released six months after the decision of the Court of Cassation.", "(b) Compliance with Article 9", "83. The Government submitted that, even assuming that there had been an interference with the applicant’s rights guaranteed by Article 9, this interference was justified. Firstly, the interference was prescribed by law. In particular, the obligation of every Armenian citizen aged between 18 and 27, who had been found to be physically fit, to serve in the Armenian army, regardless of his religious convictions, was prescribed by Article 47 of the Constitution and sections 3 and 11 of the Military Liability Act. Furthermore, Article 75 of the Criminal Code prescribed a penalty for draft evasion. These legal provisions were both accessible and sufficiently precise. Moreover, the right to conscientious objection was not recognised under Armenian law at the material time.", "84. Secondly, the interference had been necessary in a democratic society. It was one of the fundamental principles of any democratic society for all citizens, without discrimination on any grounds, to be entitled to all the rights and freedoms and to be subject to the obligations prescribed by the Constitution and laws. Thus, it would inevitably result in very serious consequences for public order if the authorities allowed the above ‑ mentioned sixty or so religious organisations to interpret and comply with the law in force at the material time as their respective religious beliefs provided. The most important task of the authorities in these circumstances was to ensure equal application of the law in respect of all Armenian citizens regardless of their religion, which should not be interpreted as an interference incompatible with the Convention.", "3. The third-party interveners", "(a) Joint observations of Amnesty International, Conscience and Peace Tax International, Friends World Committee for Consultation (Quakers), International Commission of Jurists, and War Resisters’ International", "85. The intervening organisations provided a general overview of the gradual recognition of the right to conscientious objection at international and regional levels. At the international level, they focused in particular on the developments in the jurisprudence of the UNHRC and its interpretation of the counterpart provisions of the ICCPR, notably its General Comment no. 22 and the cases of Yeo-Bum Yoon and Myung-Jin Choi (see paragraphs 62-64 above). They further referred to the developments before other United Nations bodies, such as the United Nations Commission on Human Rights and the Working Group on Arbitrary Detention (see paragraphs 58 and 65 above).", "86. At the regional level, the intervening organisations referred in particular to the developments before the Council of Europe organs, notably their Recommendations urging recognition and greater protection of the right to conscientious objection (see paragraphs 51-55 above). They also pointed out that the right to conscientious objection had been explicitly recognised by Article 10 of the Charter of Fundamental Rights of the European Union and by Article 12 of the Ibero-American Convention on Young People’s Rights (see paragraphs 57 and 69 above). Lastly, in 2005 the Inter-American Commission on Human Rights, in approving a friendly settlement between an applicant and the Bolivian State, recognised the evolving nature of the right to conscientious objection and made an explicit reference to General Comment no. 22 of the UNHRC (see paragraph 68 above).", "87. The intervening organisations further submitted that Article 9 § 2 of the Convention did not allow limitations on freedom to manifest one’s religion or belief on the ground of national security. They underlined that in the cases of Yeo-Bum Yoon and Myung-Jin Choi (see paragraphs 63-64 above), the UNHRC, having found that there had been an interference with the applicants’ rights guaranteed by Article 18 of the ICCPR, concluded that the interference was not necessary and that there had been a violation of that provision.", "88. The intervening organisations argued that, given the near universal recognition of the right to conscientious objection by the member States of the Council of Europe and the above findings of the UNHRC, a State’s failure to make any provision for conscientious objection to military service was an interference unjustifiable under Article 9 § 2. They lastly submitted, relying on the dissenting opinions in Tsirlis and Kouloumpas v. Greece (29 May 1997, Reports of Judgments and Decisions 1997 ‑ III) and Thlimmenos (cited above), that even the Commission’s approach to the disputed matter had evolved over the years. All the above supported the protection of the right to conscientious objection under Article 9.", "(b) The European Association of Jehovah’s Christian Witnesses", "89. The intervening organisation submitted that Jehovah’s Witnesses were a known Christian denomination which involved devotion to high moral standards and included a refusal to take up arms against their fellow man. They would normally accept alternative national service provided it did not violate these core values, including through being administered by the military authorities or addressed to the furtherance of military activity or goals. Jehovah’s Witnesses had historically suffered various forms of punishment because of their conscientious objection to military service, especially during wartime. However, post-war developments in many European countries had led to the gradual introduction of alternative civilian service and the eventual abolition of compulsory national service.", "90. The intervening organisation further alleged that in Armenia there was no option of performing genuine alternative civilian service free from military control and supervision and young Jehovah’s Witnesses continued to object to such service for conscientious reasons and to be imprisoned. There had been 273 persons convicted between 2002 and 2010 and at present 72 persons were serving sentences ranging from 24 to 36 months. Such persons also suffered other forms of harassment, such as refusal of a passport without which employment, opening a bank account or even marriage were impossible.", "91. In conclusion, the intervening organisation called upon the Grand Chamber to apply the “living instrument” doctrine and to bring the case-law in line with present-day conditions. It argued that the imperatives of defence of member States were no longer applicable at the level prevailing at the time of earlier decisions on this matter and the need to make arrangements for national service could be met by member States without overriding the rights guaranteed by Article 9.", "C. The Court’s assessment", "1. Applicability of Article 9", "92. The Government contested the applicability of Article 9 to the applicant’s case with reference to the Commission’s case-law, while the applicant and the third-party interveners argued that this case-law was obsolete and requested that it be brought in line with present-day conditions.", "(a) Recapitulation of the relevant case-law", "93. The Court observes that the initial position of the European Commission of Human Rights was set out in Grandrath v. Germany (no. 2299/64, Commission’s report of 12 December 1966, Yearbook 10, p. 626) which concerned a Jehovah’s Witness who sought to be exempted not only from military but also from substitute civilian service. He alleged a violation of Article 9 of the Convention on the ground that the authorities had imposed on him a service which was contrary to his conscience and religion and had punished him for his refusal to perform such service. The Commission observed at the outset that, while Article 9 guaranteed the right to freedom of thought, conscience and religion in general, Article 4 of the Convention contained a provision which expressly dealt with the question of compulsory service exacted in the place of military service in the case of conscientious objectors. It concluded that, since Article 4 expressly recognised that civilian service might be imposed on conscientious objectors as a substitute for military service, objections of conscience did not, under the Convention, entitle a person to exemption from such service. The Commission found it superfluous to examine any questions of interpretation of the term “freedom of conscience and religion” used in Article 9 and concluded that that provision considered separately had not been violated.", "94. Similarly, in G.Z. v. Austria (no. 5591/72, Commission decision of 2 April 1973, Collection 43, p. 161) the Commission stated that, in interpreting Article 9 of the Convention, it had also taken into consideration the terms of Article 4 § 3 (b) of the Convention, which provided that forced or compulsory labour should not include “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service”. By including the words “in countries where they are recognised” in Article 4 § 3 (b), a choice was left to the High Contracting Parties whether or not to recognise conscientious objectors and, if they were so recognised, to provide some substitute service. The Commission, for this reason, found that Article 9, as qualified by Article 4 § 3 (b), did not impose on a State the obligation to recognise conscientious objectors and, consequently, to make special arrangements for the exercise of their right to freedom of conscience and religion as far as it affected their compulsory military service. It followed that these Articles did not prevent a State which had not recognised conscientious objectors from punishing those who refused to do military service.", "95. This approach was subsequently confirmed by the Commission in X v. Germany, which concerned the applicant’s conscientious objection to substitute civilian service (no. 7705/76, Commission decision of 5 July 1977, Decisions and Reports (DR) 9, p. 201). In Conscientious Objectors v. Denmark (no. 7565/76, Commission decision of 7 March 1977, DR 9, p. 117), the Commission reiterated that the right to conscientious objection was not included among the rights and freedoms guaranteed by the Convention. In A. v. Switzerland (no. 10640/83, Commission decision of 9 May 1984, DR 38, p. 222) the Commission reaffirmed its position and added that neither the sentence passed on the applicant for refusing to perform military service nor the fact of its not being suspended could constitute a breach of Article 9.", "96. The finding that the Convention as such did not guarantee a right to conscientious objection was upheld by the Commission on several subsequent occasions (see N. v. Sweden, no. 10410/83, Commission decision of 11 October 1984, DR 40, p. 203; see also, mutatis mutandis, Autio v. Finland, no. 17086/90, Commission decision of 6 December 1991, DR 72, p. 246; and Peters and Heudens, both cited above). In these cases, nevertheless, the Commission was prepared to accept that, notwithstanding the above principles, the facts fell within the ambit of Article 9 and the applicants’ allegations of discrimination were therefore to be examined under Article 14 of the Convention.", "97. In two cases the issue of conviction for conscientious objection was brought before the Court. However, in both cases the Court did not find it necessary to examine the question of the applicability of Article 9 and decided to deal with the issue under other provisions of the Convention, namely Articles 14 and 3 (see Thlimmenos, cited above, §§ 43 and 53, and Ülke, cited above, §§ 53-54 and 63-64).", "(b) Whether there is a need for a change of the case-law", "98. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007 ‑ II, and Micallef v. Malta [GC], no. 17056/06, § 81, ECHR 2009). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002 ‑ VI).", "99. The Court notes that prior to this case it has never ruled on the question of the applicability of Article 9 to conscientious objectors, unlike the Commission, which refused to apply that Article to such persons. In doing so, the Commission drew a link between Article 9 and Article 4 § 3 (b) of the Convention, finding that the latter left the choice of recognising a right to conscientious objection to the Contracting Parties. Consequently, conscientious objectors were excluded from the scope of protection of Article 9, which could not be read as guaranteeing freedom from prosecution for refusal to serve in the army.", "100. The Court, however, is not convinced that this interpretation of Article 4 § 3 (b) reflects the true purpose and meaning of this provision. It notes that Article 4 § 3 (b) excludes from the scope of “forced or compulsory labour” prohibited by Article 4 § 2 “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service”. The Court further notes in this respect the travaux préparatoires on Article 4, whose paragraph 23 states: “In sub-paragraph [(b)], the clause relating to conscientious objectors was intended to indicate that any national service required of them by law would not fall within the scope of forced or compulsory labour. As the concept of conscientious objection was not recognised in many countries, the phrase ‘in countries where conscientious objection is recognised’ was inserted”. In the Court’s opinion, the travaux préparatoires confirm that the sole purpose of sub-paragraph (b) of Article 4 § 3 is to provide a further elucidation of the notion “forced or compulsory labour”. In itself it neither recognises nor excludes a right to conscientious objection and should therefore not have a delimiting effect on the rights guaranteed by Article 9.", "101. At the same time, the Court is mindful of the fact that the restrictive interpretation of Article 9 applied by the Commission was a reflection of the ideas prevailing at the material time. It considers, however, that many years have elapsed since the Commission first set out its reasoning excluding the right to conscientious objection from the scope of Article 9 in Grandrath and G.Z. v. Austria (both cited above). Even though that reasoning was later confirmed by the Commission on several occasions, its last decision to that effect was adopted as long ago as 1995. In the meantime there have been important developments both in the domestic legal systems of Council of Europe member States and internationally.", "102. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Kress v. France [GC], no. 39594/98, § 70, ECHR 2001 ‑ VI; and Christine Goodwin, cited above, § 75). Since it is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Stafford, cited above, § 68, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 104, 17 September 2009). Furthermore, in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs. The consensus emerging from specialised international instruments may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 85, ECHR 2008).", "103. The Court notes that in the late 1980s and the 1990s there was an obvious trend among European countries, both existing Council of Europe member States and those which joined the organisation later, to recognise the right to conscientious objection (see paragraph 47 above). All in all, nineteen of those States which had not yet recognised the right to conscientious objection introduced such a right into their domestic legal systems around the time when the Commission took its last decisions on the matter. Hence, at the time when the alleged interference with the applicant’s rights under Article 9 occurred, namely in 2002-03, only four other member States, in addition to Armenia, did not provide for the possibility of claiming conscientious objector status, although three of those had already incorporated that right into their Constitutions but had not yet introduced implementing laws (see paragraph 48 above). Thus, already at the material time there was nearly a consensus among all Council of Europe member States, the overwhelming majority of which had already recognised in their law and practice the right to conscientious objection.", "104. Moreover, the Court notes that, subsequent to the facts of the present case, two more member States passed laws fully implementing the right to conscientious objection, thereby leaving Azerbaijan and Turkey as the only two member States not to have done so yet. Furthermore, the Court notes that Armenia itself also recognised that right after the applicant’s release from prison and the introduction of the present application.", "105. The Court would further point out the equally important developments concerning recognition of the right to conscientious objection in various international fora. The most notable is the interpretation by the UNHRC of the provisions of the ICCPR (Articles 8 and 18), which are similar to those of the Convention (Articles 4 and 9). Initially the UNHRC adopted the same approach as the European Commission, excluding the right of conscientious objection from the scope of Article 18 of the ICCPR. However, in 1993, in its General Comment no. 22, it modified its initial approach and considered that a right to conscientious objection could be derived from Article 18 of the ICCPR inasmuch as the obligation to use lethal force might seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. In 2006 the UNHRC explicitly refused to apply Article 8 of the ICCPR in two cases against South Korea concerning conscientious objectors and examined their complaints solely under Article 18 of the ICCPR, finding a violation of that provision on account of the applicants’ conviction for refusal to serve in the army for reasons of conscience (see paragraphs 59-64 above).", "106. In Europe, mention should be made of the proclamation in 2000 of the Charter of Fundamental Rights of the European Union, which came into force in 2009. While the first paragraph of Article 10 of the Charter reproduces Article 9 § 1 of the Convention almost literally, its second paragraph explicitly states that “[t]he right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right” (see paragraph 57 above). Such an explicit addition is no doubt deliberate (see, mutatis mutandis, Christine Goodwin, cited above, § 100, and Scoppola (no. 2), cited above, § 105) and reflects the unanimous recognition of the right to conscientious objection by the member States of the European Union, as well as the weight attached to that right in modern European society.", "107. Within the Council of Europe, both the Parliamentary Assembly and the Committee of Ministers have also on several occasions called on the member States which had not yet done so to recognise the right to conscientious objection (see paragraphs 51-55 above). Furthermore, recognition of the right to conscientious objection became a precondition for admission of new member States into the organisation (see, as an example, paragraph 50 above). In 2001 the Parliamentary Assembly, having reiterated its calls made previously, stated specifically that the right to conscientious objection was a fundamental aspect of the right to freedom of thought, conscience and religion enshrined in the Convention (see paragraph 52 above). In 2010 the Committee of Ministers, relying on the developments in the UNHRC case-law and the provisions of the Charter of Fundamental Rights of the European Union, also confirmed such interpretation of the notion of freedom of conscience and religion as enshrined in Article 9 of the Convention and recommended that the member States ensure the right of conscripts to be granted conscientious objector status (see paragraph 55 above).", "108. The Court therefore concludes that since the Commission’s decision in Grandrath (cited above), and its follow-up decisions the domestic law of the overwhelming majority of Council of Europe member States, along with the relevant international instruments, has evolved to the effect that at the material time there was already a virtually general consensus on the question in Europe and beyond. In the light of these developments, it cannot be said that a shift in the interpretation of Article 9 in relation to events which occurred in 2002-03 was not foreseeable. This is all the more the case considering that Armenia itself was a party to the ICCPR and had, moreover, pledged when joining the Council of Europe to introduce a law recognising the right to conscientious objection.", "109. In the light of the foregoing and in line with the “living instrument” approach, the Court therefore takes the view that it is not possible to confirm the case-law established by the Commission, and that Article 9 should no longer be read in conjunction with Article 4 § 3 (b). Consequently, the applicant’s complaint is to be assessed solely under Article 9.", "110. In this respect, the Court notes that Article 9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 (see, mutatis mutandis, Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48, and, by contrast, Pretty v. the United Kingdom, no. 2346/02, § 82, ECHR 2002 ‑ III). Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case.", "111. The applicant in the present case is a member of the Jehovah’s Witnesses, a religious group whose beliefs include the conviction that service, even unarmed, within the military is to be opposed. The Court therefore has no reason to doubt that the applicant’s objection to military service was motivated by his religious beliefs, which were genuinely held and were in serious and insurmountable conflict with his obligation to perform military service. In this sense, and contrary to the Government’s claim (see paragraph 81 above), the applicant’s situation must be distinguished from a situation that concerns an obligation which has no specific conscientious implications in itself, such as a general tax obligation (see C. v. the United Kingdom, no. 10358/83, Commission decision of 15 December 1983, DR 37, p. 142). Accordingly, Article 9 is applicable to the applicant’s case.", "2. Compliance with Article 9", "(a) Whether there was an interference", "112. The Court considers that the applicant’s failure to report for military service was a manifestation of his religious beliefs. His conviction for draft evasion therefore amounted to an interference with his freedom to manifest his religion as guaranteed by Article 9 § 1. Such interference will be contrary to Article 9 unless it is “ prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, among other authorities, Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I).", "(b) Whether the interference was justified", "(i) Prescribed by law", "113. The Court reiterates its settled case-law that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct (see, among other authorities, Gorzelik and Others v. Poland [GC], no. 44158/98, § 64, ECHR 2004 ‑ I).", "114. The Court observes that the applicant’s conviction was based on Article 75 of the then Criminal Code, which prescribed the penalty for draft evasion. It further observes that at the time of the applicant’s conviction there was no law on alternative service and both the Armenian Constitution and the Military Liability Act required all male citizens aged between 18 and 27, unless found to be physically unfit, to perform military service. The Court considers that these provisions, which it is undisputed were accessible, were couched in sufficiently clear terms.", "115. It is true that there would appear to be an inconsistency between the above domestic provisions and the commitment undertaken by the Armenian authorities when joining the Council of Europe to adopt a law on alternative service within three years of accession and, in the meantime, to pardon all conscientious objectors sentenced to prison terms, allowing them instead, when the law had come into force, to perform alternative civilian service (see paragraph 50 above). The Court, however, does not find it necessary to resolve the apparent conflict between the domestic law and Armenia’s international commitment. Nor does it find it necessary, in the present context, to rule on the alleged failure of the authorities to comply with the provisions of the ICCPR (see paragraph 59 above).", "116. Therefore, for the purposes of the present case and in view of its findings concerning the necessity of the interference (see paragraphs 124 ‑ 28 below), the Court prefers to leave open the question of whether the interference was prescribed by law.", "(ii) Legitimate aim", "117. The Government referred to the need to protect public order and, implicitly, the rights of others. The Court, however, does not find the Government’s reference to these aims to be convincing in the circumstances of the case, especially taking into account that at the time of the applicant’s conviction the Armenian authorities had already pledged to introduce alternative civilian service and, implicitly, to refrain from convicting new conscientious objectors (see paragraph 127 below). It nevertheless considers it unnecessary to determine conclusively whether the aims referred to by the Government were legitimate within the meaning of Article 9 § 2, since, even assuming that they were, the interference was in any event incompatible with that provision for the reasons set out below.", "(iii) Necessary in a democratic society", "118. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260 ‑ A; Buscarini and Others, cited above, § 34; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 104, ECHR 2005 ‑ XI).", "119. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 60, ECHR 2000 ‑ XI, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001 ‑ XII).", "120. The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. The State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports 1996 ‑ IV, and Hasan and Chaush, cited above, § 78).", "121. According to its settled case-law, the Court leaves to States Parties to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary. This margin of appreciation goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Manoussakis and Others, cited above, § 44; Metropolitan Church of Bessarabia and Others, cited above, § 119; and Leyla Şahin, cited above, § 110).", "122. In order to determine the scope of the margin of appreciation in the present case, the Court must take into account what is at stake, namely the need to maintain true religious pluralism, which is vital to the survival of a democratic society (see Manoussakis and Others, cited above, § 44, and Metropolitan Church of Bessarabia and Others, cited above, § 119). The Court may also have regard to any consensus and common values emerging from the practices of the States Parties to the Convention (see, mutatis mutandis, X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997 ‑ II, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V).", "123. The Court has already pointed out above that almost all the member States of the Council of Europe which ever had or still have compulsory military service have introduced alternatives to such service in order to reconcile the possible conflict between individual conscience and military obligations. Accordingly, a State which has not done so enjoys only a limited margin of appreciation and must advance convincing and compelling reasons to justify any interference. In particular, it must demonstrate that the interference corresponds to a “ pressing social need” (see Manoussakis and Others, cited above, § 44; Serif v. Greece, no. 38178/97, § 49, ECHR 1999 ‑ IX; Metropolitan Church of Bessarabia and Others, cited above, § 119; Agga v. Greece (no. 2), nos. 50776/99 and 52912/99, § 56, 17 October 2002; and Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 62, ECHR 2006 ‑ XI).", "124. The Court cannot overlook the fact that, in the present case, the applicant, as a member of the Jehovah’s Witnesses, sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions. Since no alternative civilian service was available in Armenia at the material time, the applicant had no choice but to refuse to be drafted into the army if he was to stay faithful to his convictions and, by doing so, to risk criminal sanctions. Thus, the system existing at the material time imposed on citizens an obligation which had potentially serious implications for conscientious objectors while failing to allow any conscience-based exceptions and penalising those who, like the applicant, refused to perform military service. In the Court’s opinion, such a system failed to strike a fair balance between the interests of society as a whole and those of the applicant. It therefore considers that the imposition of a penalty on the applicant, in circumstances where no allowances were made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society. Still less can it be seen as necessary taking into account that there existed viable and effective alternatives capable of accommodating the competing interests, as demonstrated by the experience of the overwhelming majority of the European States.", "125. The Court admits that any system of compulsory military service imposes a heavy burden on citizens. It will be acceptable if it is shared in an equitable manner and if exemptions from this duty are based on solid and convincing grounds (see Autio, cited above). The Court has already found that the applicant had solid and convincing reasons justifying his exemption from military service (see paragraph 111 above). It further notes that the applicant never refused to comply with his civic obligations in general. On the contrary, he explicitly requested the authorities to provide him with the opportunity to perform alternative civilian service. Thus, the applicant was prepared, for convincing reasons, to share the societal burden equally with his compatriots engaged in compulsory military service by performing alternative service. In the absence of such an opportunity, the applicant had to serve a prison sentence instead.", "126. The Court further reiterates that pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position (see Leyla Şahin, cited above, § 108). Thus, respect on the part of the State towards the beliefs of a minority religious group like the applicant’s by providing them with the opportunity to serve society as dictated by their conscience might, far from creating unjust inequalities or discrimination as claimed by the Government, rather ensure cohesive and stable pluralism and promote religious harmony and tolerance in society.", "127. The Court would lastly point out that the applicant’s prosecution and conviction happened at a time when the Armenian authorities had already officially pledged, upon accession to the Council of Europe, to introduce alternative service within a specific period (see paragraph 50 above). Furthermore, while the commitment not to convict conscientious objectors during that period was not explicitly stated in Opinion no. 221 of the Parliamentary Assembly, it can be said to have been implicit in the following phrase: “... in the meantime, to pardon all conscientious objectors sentenced to prison terms ... allowing them instead ..., when the law ... [had] come into force, to perform ... alternative civilian service.” Such undertakings on the part of the Armenian authorities were indicative of a recognition that freedom of conscience can be expressed through opposition to military service and that it was necessary to deal with the issue by introducing alternative measures rather than penalising conscientious objectors. Hence, the applicant’s conviction for conscientious objection was in direct conflict with the official policy of reform and legislative changes being implemented in Armenia at the material time in pursuance of its international commitment and cannot be said, in such circumstances, to have been prompted by a pressing social need. This is even more so, taking into account that the law on alternative service was adopted less than a year after the applicant’s final conviction. The fact that the applicant was later released on parole does not affect the situation. Nor did the adoption of the new law have any impact on the applicant’s case.", "128. For all the above reasons, the Court considers that the applicant’s conviction constituted an interference which was not necessary in a democratic society within the meaning of Article 9 of the Convention. Accordingly, there has been a violation of that provision.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "129. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "130. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "131. The Government submitted that the amount of non-pecuniary damage claimed was excessive. Furthermore, the applicant had failed to prove that he had actually suffered any non-pecuniary damage. In any event, the finding of a violation should constitute sufficient just satisfaction.", "132. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage as a result of his conviction and imprisonment for his refusal to serve in the army on conscientious grounds. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "133. The applicant claimed a total of EUR 17,500 for costs and expenses, including EUR 3,000 for the legal fees in the domestic proceedings, EUR 11,500 for the legal fees in the proceedings before the Chamber and EUR 3,000 for the legal fees in the proceedings before the Grand Chamber, including the costs of attending the hearing. The applicant submitted invoices in respect of three lawyers, one domestic and two foreign, containing lump-sum amounts payable for each portion of the work done up to and including the adoption of a final decision on his case.", "134. The Government submitted that the applicant could claim costs and expenses only in respect of his complaints under Article 9, as his complaints under other Articles of the Convention had been declared inadmissible. In any event, his claim for costs and expenses was not duly documented and he had failed to demonstrate that those costs had been actually incurred. The invoices submitted by the applicant could not be regarded as proof of payment or an agreement between him and his lawyers to make such payments in the future. Furthermore, it was unacceptable to claim reimbursement of any upcoming costs, such as the costs of attending the hearing. Moreover, the lawyers’ fees were inflated, exorbitant and unreasonable and the applicant had employed an excessive number of lawyers, which had also resulted in some duplication of work. Lastly, the Government alleged that the two foreign lawyers were residents of Canada and did not therefore meet the relevant criteria to represent the applicant.", "135. The Court reiterates that legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). In the present case, the applicant’s initial application to the Court included numerous other complaints under Article 5 §§ 1, 3 and 5, Article 6 and Article 14 of the Convention, which were declared inadmissible. Therefore, the claim cannot be allowed in full and a reduction must be applied. The Court does not, however, agree with the Government that the applicant’s claims were not duly documented or that the fees claimed were inflated or unreasonable. Nor does it agree with the Government’s submission concerning the two foreign lawyers, as they were both granted leave to represent the applicant before the Court. Making its own estimate based on the information available, the Court awards the applicant EUR 10,000 for costs and expenses.", "C. Default interest", "136. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1988 and lives in Ikaria.", "7. On 3 0 July 2007 the applicant, wishing to pursue a course of higher education, applied for and was granted permission to defer his enlistment for military service. On 2 4 September 2012 he interrupted the deferral. As a result, he was required to report to the recruitment centre on 2 3 January 2013.", "8. On 2 2 January 2013 he applied for leave to perform alternative service on the grounds that he was a conscientious objector.", "9. On 2 7 May 2013 he appeared before the armed forces ’ special committee ( established by section 62 of Law no. 3421/2005) to explain the nature of his conscientious objection. He stated that his objection was based on moral values stemming from the religious education he had received from his mother, a Jehovah ’ s Witness, and on his own approach to life, involving the rejection of anything linked to war, violence or destruction in all its forms. The following is an extract from his interview :", "“ Question : Tell us about your beliefs.", "Answer : I grew up in a home where we were respectful of God. My mother is a Jehovah ’ s Witness. My father is an atheist. I believe that since God does not allow me to perform armed service in this world, I would be insulting him if I were to do so.", "Question : So you are citing religious reasons to justify your refusal to perform armed service.", "Answer : In substance, yes, but as I have not yet been baptised, I cannot provide you with a certificate from the Church of the Jehovah ’ s Witnesses. That is why I am also relying on moral grounds.", "Question : Why have you not yet been baptised?", "Answer : I still have some way to go. My behaviour is not yet completely suitable. I have decided to get baptised, but to do so I still need to make further progress and study the Scriptures and the Word of God in more detail.", "Question : How have you come to the conclusion that God has nothing to do with war?", "Answer : I have not drawn that conclusion, but if I do enlist and serve worldly power, I will find myself on the wrong side when God decides to take action.", "Question : Do you think it is feasible to eradicate violence from this world?", "Answer : It is hard to eradicate violence and armies by good will alone.", "Question : Have you ever witnessed a violent incident, and if so, how did you react?", "Answer : Yes, I was assaulted. I tried to keep my response to a minimum by immobilising the attacker.", "Question : By reacting in that way, were you not using violence?", "Answer : No, it was self-defence, and I do not think that self-defence involves the use of pure violence.", "Question : So you acknowledge that there is a lawful authority and that some entities may potentially use force where necessary?", "Answer : Yes, I acknowledge lawful authority. The law of mankind exists until the divine law arrives. I believe that people should submit to lawful authority. But there is a difference between submitting to it and becoming part of it.", "Question : Are you a member of a non-violent organisation?", "Answer : No; for me, religious reasons take priority over reasons linked to morals ...”", "10. Only three of the five members of the special committee were present when it interviewed the applicant, namely two officers of the armed forces and an adviser of the State Legal Council. The other two members – two university professors specialising in psychology, philosophy or social sciences – were unable to attend and were not replaced.", "11. On 2 7 May 2013 the special committee decided unanimously to propose that the applicant ’ s application be rejected. It found that the religious and ethical arguments he had put forward for being exempted from armed service were unsubstantiated. Firstly, he was not a member of the Jehovah ’ s Witnesses community, and secondly, he had not shown that he had taken part in non-violent movements; on the contrary, he had stated that self-defence was not a form of violence and that people should submit to lawful authority.", "12. On 3 0 July 2013 the Minister of National Defence rejected the application on the grounds proposed by the special committee.", "13. On 5 September 2013 the applicant applied to the Supreme Administrative Court for judicial review of the decision by the Minister of National Defence.", "14. Firstly, he challenged the composition of the special committee that had adjudicated on his case, and complained in particular that the two university professors had been absent on that occasion. He submitted that as a result of their absence and the failure to replace them, the very nature of the committee had been distorted, since the military officers had formed a majority among the three members present. In the applicant ’ s view, the officers were inherently ill-disposed towards conscientious objectors and did not have the expertise in philosophy and psychology to make an objective assessment of the grounds put forward by them.", "15. Secondly, the applicant argued that the Minister ’ s decision had not contained sufficient reasons, seeing that ( a) it had incorrectly mentioned that he had cited religious grounds without being an adherent of a religion; and ( b) the members of the committee had displayed prejudice by asserting that conscientious objectors had to be activists and anti-authority or to publicise their views, whereas the law did not lay down any such conditions.", "16. Thirdly, the applicant complained of an infringement of his right to conscientious objection, arguing that the mere assertion of that right, coupled with his behaviour in practice (not possessing a firearms licence or having any convictions for offences involving violence), was sufficient to justify his application for exemption from armed service.", "17. In judgment no. 1289/2014 of 7 April 2014 the Supreme Administrative Court dismissed the applicant ’ s application.", "18. In response to his first argument, it noted that the members of the committee sat on an equal basis and that the absence of two of the members therefore had no effect on the quorum and did not distort the nature of the committee.", "19. With regard to his second argument, the Supreme Administrative Court explained that, after examining whether the applicant was a follower of a religion that prohibited the use of force, whether he had taken part in non-violent movements and whether his philosophy of life prevented him from handling weapons, the committee had concluded that his conscientious objection was not accompanied by corresponding behaviour. It also dismissed his argument that opponents to the use of violence who did not publicly identify themselves as such were victims of discrimination, holding that the law required clear proof of their beliefs and that, moreover, the fact of not falling within the exceptions provided for by law was insufficient.", "20. As to the third argument, the Supreme Administrative Court held that neither international instruments nor domestic legislation established a right to be exempted from armed service simply by citing conscientious objection. Such an exemption had to be subject to the conditions laid down by law, including the submission of sound and convincing reasons to justify it. It added that conscientious objection could not be established on the basis of a simple declaration, and nor could it be inferred from negative facts, such as not having any convictions for assault and not possessing weapons. On the contrary, it was necessary to provide evidence of active behaviour over a certain period, but the applicant had failed to do so.", "21. On 1 9 May 2014 the applicant was ordered to pay a fine of 6, 000 euros (EUR) for insubordination; with interest for late payment, the amount was increased to EUR 7, 940. 85. On 11 July 2014 the applicant applied to the Mytilene Administrative Court to have the fine set aside. The case is still pending, but the authorities have seized a sum from his bank account.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "34. Relying on Article 6 of the Convention, the applicant complained that the Supreme Administrative Court had failed to examine his complaint that there had been a violation of Article 9 of the Convention in that the special committee considering his case had been composed of a majority of military officers, who, in the applicant ’ s submission, were inherently ill-disposed towards conscientious objectors. Relying on Article 9 of the Convention, he complained that his application had not been examined in proper or impartial conditions, as the absence of two of the members of the committee had, in his view, resulted in an erroneous interpretation of his beliefs and the rejection of his application. Lastly, relying on Article 9 taken together with Article 11 of the Convention, he alleged that the rejection of his application for conscientious objector status constituted a breach of his negative freedom not to be a follower of a particular religion or a member of an anti-militarist organisation.", "35. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for example, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the procedure followed by the armed forces ’ special committee and the reasoning adopted by the Supreme Administrative Court on this matter might raise an issue under Article 9 of the Convention. Accordingly, it considers that the applicant ’ s complaints should be examined under Article 9 alone, which provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "...", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "39. The applicant stated that unlike the applicant in Kosteski v. the former Yugoslav Republic of Macedonia (no. 55170/00, 13 April 2006), who had had to prove a fact, he himself had had to demonstrate a belief by means of a procedure established by the State. He submitted that conscientious objectors were not only militants, people who publicly promoted their ideas or members of religious organisations, and that everyone was free to choose not to make their beliefs public and not to belong to organisations. Moreover, people adhering to the same fundamental principles might have deeply and sincerely held beliefs that were completely different.", "40. The applicant further submitted that the State should apply a presumption of sincerity to a declaration of conscientious objection, as would be the case for the presumption of innocence or a tax declaration. In Greece, the authorities had adopted objective and easily applicable criteria for testing the sincerity of stated beliefs, namely increasing the duration of alternative service and requiring it to be carried out away from the place of residence. The authorities also had to take into account the way in which the individual concerned had acquired and developed such beliefs, and the consistency in the individual ’ s attitude between the acquisition of the beliefs and the final decision by the appropriate authority. The applicant maintained that he had satisfied all the conditions for being granted conscientious objector status, but that the special committee ’ s assessment of some of his statements had been incorrect.", "41. The applicant also contended that the mechanism established by section 62 of Law no. 3421/2005 was not compatible with Recommendation no. R( 87)8 of the Committee of Ministers of the Council of Europe. In that connection he criticised the close relationship between the special committee and the military command and asserted that the decisive final step in the procedure was ultimately the responsibility of the military authorities. Relying on the Court ’ s case-law concerning the impartiality of Turkish military courts, and also on the comments of the Greek National Commission for Human Rights on the draft legislation concerning conscientious objectors ..., he submitted that the special committee ’ s lack of impartiality and independence was blatant in his case.", "42. Lastly, the applicant asserted that all, or the vast majority, of the 158 applications accepted by the special committee in 2013 had been submitted by Jehovah ’ s Witnesses playing an active role within their community. The fourteen applications that had been rejected had been submitted by conscientious objectors who, like him, were motivated by ideological reasons, and their rejection was unsurprising given the committee ’ s consistent practice, which had been heavily criticised by Amnesty International and other human rights organisations.", "(b) The Government", "43. The Government stated at the outset that the applicant ’ s particular case differed from the situation in Bayatyan [ v. Armenia [GC], no. 23459/03, ECHR 2011], which he had relied on in his application to the Court. They were unable to accept the applicant ’ s argument that the special committee established by section 62 of Law no. 3421/2005 lacked impartiality. The members of the committee enjoyed equal status and the absence of two of them during the examination of the applicant ’ s application could not have had affected the quorum or distorted the nature of the committee. Even assuming that the two members in question had been present and had voted in his favour, there was nothing to support the conclusion that the committee ’ s decision would have been different.", "44. The Government further contended that it was arbitrary for the applicant to maintain that it was predictable that the two officers would reject his application on the grounds that they were inherently prejudiced against conscientious objectors. Referring to a document produced by the Ministry of National Defence, the Government stated that in 2013 the special committee had examined 172 similar applications to the one submitted by the applicant and had accepted 158 of them. In 97 of the 158 cases, there had been a majority of military members sitting on the committee ( two officers and the adviser of the State Legal Council ), and in 61 cases the composition had been balanced ( two officers, one university professor and the adviser of the State Legal Council ). With that in mind, the applicant could have asked for his application to be reconsidered by the committee with all its members sitting.", "45. In addition, the Government submitted that the record of the applicant ’ s interview ( see paragraph 9 above ) showed that the members of the committee had set out to assess the sincerity and seriousness of his beliefs, and that to that end they had asked him a series of fundamental questions to which he had not given clear and convincing answers. The applicant ’ s argument that the special committee should have reached a different conclusion on the grounds that he had been raised by a Jehovah ’ s Witness mother and an atheist father was unconvincing, and he had failed to prove that he had stable and sincere beliefs preventing him from performing armed service.", "46. The Government also contended that the applicant was unfounded in arguing that the proof of a conscientious objector ’ s beliefs was established by his leading a peaceful and law-abiding life. Allowing such an approach would produce an absurd result, namely that the vast majority of men who did not possess weapons and had never been involved in acts of violence would be exempted from their military obligations.", "47. Lastly, the Government objected to the applicant ’ s argument that the procedure established by section 62 of Law no. 3421/2005 was incompatible with the requirements of the Convention. In their submission, a general complaint about the practical implementation of that procedure was not sufficient to establish that it was defective or that there had been any specific lack of impartiality in the applicant ’ s case.", "( c ) Alliance Defending Freedom International, third-party intervener", "48. ADF International highlighted the pre-eminence of freedom of conscience, which was recognised not only in the major human rights treaties and the corresponding case-law but also in national legislation and judicial practice and in various international instruments adopted by the Council of Europe, the European Union and the United Nations.", "49. ADF International acknowledged that it was difficult in practice for the domestic courts to assess whether a claim relating to a belief was genuine. However, it stated that the Court had already set up a framework for evaluating such claims and noted that the question was whether an individual opposed to the obligation to perform military service was placed in a serious conflict between that obligation and his or her genuinely and deeply held religious or other convictions and was thus forced to act against the dictates of his or her conscience. ADF International submitted that the first prong of the test to be carried out to that end served as an initial threshold: the conflict arising had to reach a certain level of seriousness. The second prong of the test consisted in examining whether the belief was genuinely and deeply held: the convictions asserted by the individual had to be based on a set of identifiable and sincerely expressed values. The third prong involved an assessment of the nature of the conflict, and in particular, whether it had a moral dimension. Such an assessment was in the nature of things subjective and amounted to determining what was required of the individual seeking conscientious objector status.", "2. The Court ’ s assessment", "50. The Court observes that the rejection of the applicant ’ s application for conscientious objector status may be regarded as interference with his right to freedom of thought and conscience as safeguarded by Article 9 of the Convention.", "51. The Court further notes that it has frequently held that under Article 8 of the Convention, the State ’ s positive obligation inherent in effective respect for private life may involve the provision of an effective and accessible means of protecting the right to respect for private life (see Airey v. Ireland, 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998-III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005-X), and in particular the introduction of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where relevant, of appropriate special measures. While the boundaries between the State ’ s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar (see Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts) ).", "52. In Savda v. Turkey ( cited above, § 98) the Court held that these principles could be applied mutatis mutandis to the right to conscientious objection to compulsory military service, given that in the absence of a procedure for examining claims for conscientious objector status, such service was likely to entail a serious and insurmountable conflict between the obligation to perform it and an individual ’ s conscience or genuinely and deeply held beliefs. The Court concluded that there had been a positive obligation on the authorities to provide the applicant with an effective and accessible procedure for establishing whether he was entitled to conscientious objector status, with a view to preserving his interests as protected by Article 9 (ibid., § 99).", "53. The Court notes at the outset that, contrary to the situation in Turkey that gave rise to its Savda judgment (cited above) and the other judgments mentioned above (see paragraph 36 ), there was a legal framework in Greece at the material time governing conscientious objector status and an alternative to armed service. Although the Constitution does not enshrine a general right to exemption from military service, the interpretative declaration concerning Article 4 § 6 of the Constitution states that the paragraph in question does not exclude the possibility of a law providing for the compulsory performance of other types of service, whether within or outside the armed forces ( alternative service), by anyone with a justified conscientious objection to performing armed or general military service. To that end, Law no. 3421/2005 was enacted, placing conscientious objectors at the disposal of various public services further to a decision taken by the Minister of National Defence after obtaining the opinion of a special committee responsible for examining, either on the basis of documentary evidence or after interviewing the individual concerned, whether the requirements for granting conscientious objector status are satisfied.", "54. It is not disputed that the purpose of the procedure before the special committee under section 62 of Law no. 3421/2005 is to assess the seriousness of the individual ’ s beliefs and to thwart any attempt to abuse the possibility of an exemption on the part of individuals who are in a position to perform their military service. The Court acknowledges the value of an interview of this kind, seeing that the risk that certain conscripts might pretend to be conscientious objectors cannot be entirely ruled out.", "55. In some of the Turkish cases cited above, the Court held that the applicants ’ doubts about the independence and impartiality of the Turkish military courts that had tried them were objectively justified. It found that it was understandable that a conscientious objector standing trial for strictly military offences before an exclusively military court should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings, and that the individual concerned could legitimately have feared that the court might allow itself to be unduly influenced by partial considerations ( see, for example, Feti Demirtaş, cited above ).", "56. In the present case, the situation was different. It involved appearing before a committee that was not called upon to impose a penalty for a breach of military discipline, as in the case of the Turkish courts, but to determine, prior to an individual ’ s enlistment, whether or not he should be granted conscientious objector status.", "57. The Court notes that in his answers to the committee, the applicant attempted to substantiate his beliefs and declared himself willing to perform alternative service for fifteen months instead of nine months, the normal duration of armed service. After the failure of his attempt to convince the committee, he again asserted his conscientious objection by appealing to the Supreme Administrative Court against the decision by the Minister of National Defence to refuse his application, by paying the fine of 6, 000 euros after that court found against him and by accepting the risk of a prison sentence for insubordination.", "58. The Court observes that the applicant ’ s main complaint is that some of the statements which he made to the committee – in particular, those to the effect that submitting to authority was an obligation and that self-defence was not a form of violence – were misinterpreted by the members present, who were senior officers. It reiterates that it is not its task to evaluate the meaning of the applicant ’ s statements and the way in which the members of the committee interpreted them, this being first and foremost the role of the national authorities ( see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, ECHR 2011).", "59. Section 62 of Law no. 3421/2005 provides that when the special committee examines applications for exemption from armed military service for conscientious objectors, it should be composed of two university professors specialising in philosophy, social and political sciences or psychology, a senior or other adviser of the State Legal Council, and two senior officers of the armed forces, one from the recruitment corps and one from the medical corps. It is clear that special precautions have been taken to ensure that the committee includes an equal number of military officers and civil-society representatives with specialist knowledge in the field, and is chaired by a legal expert. A number of substitutes equal to the number of full members are also appointed for the same duration.", "60. In this connection, the Court reiterates that the positive obligation on States in accordance with its judgments in Bayatyan and Savda ( both cited above) is not confined to ensuring that their domestic legal system includes a procedure for examining applications for conscientious objector status. It also encompasses the obligation to provide for an effective and accessible investigation into such matters ( see Savda, cited above, § 99). One of the fundamental conditions for an investigation to be considered effective is the independence of the individuals conducting it.", "61. The Court notes in the present case that if all the members of the special committee had been present at the time when it interviewed the applicant, the majority would have been civilians : two university professors specialising in social sciences and the adviser of the State Legal Council (acting as chairman), as against two high-ranking army officers. However, only the chairman and the two officers were present on that date. In the Court ’ s view, the applicant could legitimately have feared that, since he was not a member of a religious community, he would not succeed in conveying his ideological convictions to career officers with senior positions in the military hierarchy.", "62. In this connection, the Court observes that in his recommendation of 2013 the Greek Ombudsman pointed out that, while for conscientious objectors classified as “religious”, the special committee required no more than a certificate from the religious community concerned and did not even call them to an interview, “ideological” objectors were often required to answer questions concerning sensitive personal information ...", "63. For the letter and the spirit of section 62 of Law no. 3421/2005 to be observed, the Court considers that if certain members of the committee are unable to attend when it is due to interview a conscientious objector, arrangements should be made so that it can meet in the conditions of equal representation laid down in the provision in question.", "64. Admittedly, the committee ’ s decision is merely an opinion which is transmitted to the Minister of National Defence, who takes the final decision on the request by the objector to perform alternative service. Article 3 of the Minister of National Defence ’ s implementing decision, entitled “Alternative service for conscientious objectors”, provides that, following the deliberations and the drafting of the record, the committee ’ s rapporteur sends the file to the recruitment corps at the armed forces headquarters, after which it is transmitted to the Minister of National Defence, with a draft ministerial decision appended in accordance with the committee ’ s proposal. ... That being so, the Minister likewise does not afford the requisite guarantees of impartiality and independence to reassure a conscientious objector who has been interviewed, as in the present case, by a committee made up of a majority of high-ranking army officers.", "65. As to the scrutiny performed by the Supreme Administrative Court in the event of an appeal against the Minister of National Defence ’ s decision, it extends only to the lawfulness of the decision and not to the merits of the case, and is based on the assessments made by the members of the special committee.", "66. Having regard to the foregoing, the Court considers that the competent authorities failed, in the circumstances of the case, to comply with their positive obligation under Article 9 of the Convention to ensure that interviews of conscientious objectors by the special committee are conducted in conditions guaranteeing procedural efficiency and the equal representation required by section 62 of Law no. 3421/2005. There has therefore been a violation of that Article.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. Mr Adyan (“the first applicant”) was born in 1991, while Mr Avetisyan, Mr Khachatryan and Mr Margaryan (“the second, third and fourth applicants”) were born in 1993. The first and second applicants live in Yerevan, while the third and fourth applicants live in Tsaghkavan and Kapan respectively.", "A. Background to the case", "7. The applicants are four Jehovah’s Witnesses who were found to be fit for military service.", "8. In May and June 2011 the applicants were called up for military service. They failed to appear, and instead addressed letters to the local military commissariat ( զինվորական կոմիսարիատ ) and the regional prosecutor’s office, refusing to perform either military or alternative service. They stated that they were Jehovah’s Witnesses and that, having studied the Alternative Service Act, they had come to the conclusion that, by European standards, the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. Their conscience did not allow them to work directly or indirectly for the military system. The alternative labour service was known to be organised and supervised by the military authorities because the alternative labour serviceman’s record booklet was marked “Armed Forces of Armenia”, and alternative servicemen were subject to military discipline and penalties and had to register with the military subdivisions of the Armed Forces of Armenia. Furthermore, the law required that they remain at their place of service around the clock, seven days a week, which was akin to house arrest and was unacceptable to the applicants. The requirement to perform military service or the available alternative service violated their rights guaranteed by, inter alia, Article 9 of the European Convention on Human Rights. For the reasons stated above, their conscience did not allow them to perform the alternative service available in Armenia. The applicants added that they were willing to perform alternative service as long as it was not in any way connected with the military authorities and did not violate their religious beliefs.", "B. Charges against the applicants and placement of the first, third and fourth applicants in pre-trial detention", "1. The second applicant", "9. On 15 June 2011 charges were brought against the second applicant under Article 327 § 1 of the Criminal Code (evasion of regular conscription for military or alternative service).", "2. The first and fourth applicants", "10. On 6 July 2011 the first and fourth applicants were arrested.", "11. On 7 July 2011 the same charges were brought against the first and fourth applicants. Finding the investigator’s applications for their detention substantiated, the Syunik Regional Court decided to detain them.", "12. On 28 July 2011 the Criminal Court of Appeal dismissed appeals lodged by the first and fourth applicants against the detention orders, finding, inter alia, that as the alleged offence carried a sentence of more than one year’s imprisonment, that increased the probability that the first and fourth applicants would commit a new offence or evade punishment if they remained at large.", "3. The third applicant", "13. On 27 July 2011 the same charges were brought against the third applicant and the Tavush Regional Court decided to detain him at the investigator’s request, finding that there was a reasonable suspicion that he had committed the offence with which he was charged.", "14. On an unspecified date his criminal case was sent to court.", "15. On 19 August 2011 the Tavush Regional Court decided to set the case down for trial, finding that the “detention was to remain unchanged”.", "16. On 24 August 2011 the Criminal Court of Appeal examined an appeal lodged by the third applicant against the detention order of 27 July 2011 and decided to dismiss it, finding, inter alia, that the offence with which he was charged carried a sentence of more than one year’s imprisonment, which increased the probability that he would commit a new offence or evade punishment if he remained at large.", "C. Court proceedings and the applicants’ conviction", "17. In the course of the proceedings before their respective trial courts, the applicants submitted that their opposition to military and alternative service was based on their religious beliefs. The alternative service provided for under domestic law was not of a genuinely civilian nature, as it was supervised by the military authorities. The right to conscientious objection was protected by, inter alia, Article 9 of the Convention. The applicants were willing to perform alternative service as long as it was not supervised by the military and was of a genuinely civilian nature.", "18. On 19 July 2011 the Kotayk Regional Court found the second applicant guilty as charged and sentenced him to two years and six months in prison. He was taken into custody on the same day.", "19. On 27 July 2011 the Syunik Regional Court imposed similar sentences on the first and fourth applicants.", "20. On 25 November 2011 the Tavush Regional Court imposed a similar sentence on the third applicant.", "21. The applicants lodged appeals against their convictions, arguing that they violated the requirements of Article 9 of the Convention. Their opposition to the alternative service available in Armenia was based on their religious beliefs, as that service was not of a genuinely civilian nature and failed to comply with European standards. It was organised and supervised by the military authorities (section 14 of the Alternative Service Act (see paragraph 28 below)) and was equivalent to non-armed military service, whereas their conscience did not allow them to perform any service supervised by the military authorities. Furthermore, section 17(3) of the Act authorised a military authority to order the transfer of an alternative labour serviceman to another institution, while certain aspects of the service were organised in accordance with military rules (section 18(2) of the Act). Alternative labour servicemen were also required to wear a uniform that resembled a military uniform and to follow orders, and were not allowed to leave their place of service without authorisation. The cover of the alternative labour serviceman’s record booklet ( այլընտրանքային աշխատանքային ծառայողի գրքույկ ) bore the coat of arms and the words “The Armed Forces of Armenia”, and the monthly allowance paid was the same as that of military servicemen. Moreover, alternative service was punitive in nature as it lasted forty-two months and alternative servicemen were required to stay at their place of service around the clock. They reiterated their readiness to perform a genuinely civilian alternative service and argued that, in the absence of alternative service that complied with European standards and was of a truly civilian nature, their sentences did not pursue a pressing social need and were not necessary in a democratic society.", "22. On 2 December 2011 the Criminal Court of Appeal upheld the judgments of the Regional Courts in the cases of the first and second applicants.", "In the first applicant’s case, the Court of Appeal found as follows:", "“Having examined the arguments of the defence that the alternative labour service in Armenia does not comply with European standards, is of a military nature and is supervised by the military, the Court of Appeal finds that [the State] ... is taking appropriate measures in respect of the obligations assumed before the Council of Europe as regards, in particular, the enactment and continuous improvement of the legislation concerning alternative service.", "The Court of Appeal finds it necessary to point out that the Alternative Service Act, the [relevant] Government decrees and [other executive orders] are based on the Armenian Constitution and must therefore be applied in the present case with the following considerations.", "[Citation of sections 2 and 3(1) of the Act (see paragraph 28 below)]", "It follows from the above-mentioned provisions that [the State] has made a clear distinction between alternative military service and alternative labour service, and has guaranteed by law the civilian nature of the latter.", "[Citation of sections 17 and 18(3) of the Act (see paragraph 28 below)]", "Based on an analysis of the above-mentioned provisions, the Court of Appeal finds it necessary to point out that the fact that the head of the institution [where alternative service is performed] notifies [the local military commissariat] regarding the alternative labour service to be performed by the serviceman, the fact that the serviceman can be transferred to another institution or place and the fact that alternative labour servicemen are discharged from service to the reserve and are registered in the reserve in accordance with a procedure prescribed by law, are not sufficient to conclude that the alternative labour service in Armenia is of a military nature, since ... the type, procedures and conditions of such labour are determined by the heads of the relevant institutions without any interference by the military authorities or their representatives.", "Furthermore, it is the head of [the relevant] institution who is responsible for the organisation and implementation of the alternative labour service and not the subdivisions of the Armed Forces of Armenia.", "The argument put forward by the defence that the alternative labour service is supervised by a public authority in the field of defence authorised by the Government of Armenia similarly does not suggest that there is no alternative labour service in Armenia. It must be noted that in reality, servicemen perform the labour service outside the Armed Forces of Armenia and it does not contain elements of military service.", "The Court of Appeal also finds it necessary to note that an analysis of the Alternative Service Act shows that the specifics of the legal status of alternative labour servicemen are set out in the said Act and the labour legislation of Armenia and they are subjects ... of labour rather than military relations.", "The preceding conclusion is evidenced also by a number of other provisions of the Act, in particular, the fact that alternative labour servicemen are subordinate only to the heads of the relevant civilian institutions, are obliged to follow only their orders and instructions, and must abide by the internal disciplinary rules of such institutions, while questions relating to the social security of servicemen and their family members are regulated by the legislation on State pensions rather than military laws (sections 19 and 20).", "It must be noted that Government Decree no. 940-N of 25 June 2004 established the list of institutions where alternative service is performed and the form and the manner of wearing the alternative serviceman’s uniform.", "Paragraph 2(b) of the Decree stipulates that ‘alternative labour servicemen perform their service in the institutions under the Ministry of Health and the Ministry of Labour and Social Affairs’.", "Pursuant to [Annex 1] to the Decree, ‘the tasks performed by alternative labour servicemen in the said bodies are those of an orderly’.", "The Government have entrusted the ministers of the bodies in question, as well as the Minister of Defence, with certain responsibilities, such as the provision of clothing, food and financial means to servicemen and other organisational work (paragraph 3 of the Decree).", "The fact that the Minister of Defence is also involved in the organisation of the alternative service does not suggest that the labour service transforms into military service, since, firstly, the Minister of Defence and certain subdivisions of the Armed Forces are called upon to participate in the organisation of the alternative military service.", "As regards the fact that the military authorities carry out supervision of labour servicemen together with the heads of the relevant institutions, the Court of Appeal considers that this still does not change the nature of the service performed. Moreover, as already noted above, the type, procedures and conditions of the civilian labour are determined and may be changed only by the head of the relevant institution.", "...", "It must be noted that performing the tasks of an orderly at the relevant medical institutions of Armenia is not only not demeaning, but on the contrary is humanitarian, serves the interests of society and is aimed at preservation of human health and life.", "The argument put forward by the defence that the alternative labour service is punitive in nature is also unsubstantiated.", "...", "In the light of the above, the Court of Appeal, based on the concrete facts of the case, namely that [the first applicant] has categorically refused to be conscripted to perform alternative labour service, concludes that he has been found criminally liable and sentenced in a justified and fair manner for such actions, and this fact does not contradict ... the case-law of the European Court regarding Article 9 of the Convention.”", "In the second applicant’s case, the Court of Appeal found that his conviction had been lawful, well-founded and reasoned.", "23. On 9 December 2011 and 6 March 2012 the Criminal Court of Appeal adopted judgments in the cases of the third and fourth applicants similar to its judgment in the case of the first applicant.", "24. The applicants lodged appeals on points of law, raising the same arguments as in their appeals.", "25. On 7, 8 and 17 February and 7 May 2012 the Court of Cassation declared the applicants’ appeals inadmissible for lack of merit.", "26. On 8 and 9 October 2013 the applicants were released from prison following a general amnesty, after having served between twenty-six and twenty-seven months of their sentences.", "I. Human Rights Defender of Armenia", "39. In his 2008 Annual Report, the Human Rights Defender noted:", "“The draftees who belong to the Jehovah’s Witnesses explain their refusal to sign up for alternative labour service by the fact that the service is managed and supervised by divisions of the ... Ministry of Defence. For example, the conscription to alternative labour service is conducted by military commissariats, or the ... Defence Ministry’s Military Police [Division] pays regular inspection visits to the institutions where the alternative labour service is being performed, requesting the alternative service personnel to line up and so on. In addition, some recruits expressed complaints that uniforms for alternative labour service personnel had been supplied by the ... Ministry of Defence.", "According to [section 18 of the Alternative Service Act], the party responsible for the implementation and supervision of alternative labour service shall be the head of the institution where the alternative labour service is ... performed. However, [section 14 of the same Act] states that conscription to alternative service shall be organised and supervised by [an authorised public authority in the field of defence]. Indeed, the ... Ministry of Defence justifies its regular inspection visits [by] the Military Police as [being in] implementation of [section 14] and claims that the purpose of such visits is to verify that alternative service personnel are actually at the places where alternative labour service is ... conducted.", "Taking this into account, the Human Rights Defender’s Office recommends that changes be made to the legislation so that the responsibility for processing alternative service applications and the subsequent implementation and supervision of alternative service be given to an authorised ... labour and social security body. Thus, rather than registering alternative servicemen in the registries of the military reserve force, which is the current requirement of the ... [Military Liability Act], it is possible to envisage [a register] for citizens who have performed alternative service that is accompanied by a new type of [record booklet] to be established by law (in contrast to the regular military [record booklet]).”" ]

[ "II. DOMESTIC LAW AND PRACTICE", "A. Criminal Code (in force since 2003)", "27. Article 327 § 1 provides that evasion of regular conscription for fixed-term military or alternative service, in the absence of legal grounds for exemption from such service, is punishable by detention (defined in this context as imprisonment under conditions of strict isolation) for a period not exceeding two months or imprisonment for a period not exceeding three years.", "B. Alternative Service Act", "1. Alternative Service Act as in force at the material time", "28. The relevant provisions of the Alternative Service Act of 17 December 2003, which entered into force on 1 July 2004, read as follows:", "Section 2. Concept and types of alternative service", "“1. Within the meaning of this Act alternative service is the service that replaces compulsory fixed-term military service. It does not involve the bearing, keeping, maintenance and use of arms, and is performed in both military and civilian institutions.", "2. There are two types of alternative service:", "(a) Alternative military service, namely military service performed in the armed forces of Armenia which does not involve being on combat duty or the bearing, keeping, maintenance and use of arms; and", "(b) Alternative labour service, namely labour service performed outside the armed forces of Armenia.", "3. The purpose of alternative service is to ensure the fulfilment of a civic obligation towards the motherland and society, and it does not have a punitive, demeaning or degrading nature.”", "Section 3. Grounds for performing alternative service", "“1. An Armenian citizen whose creed or religious beliefs contradict the performance of military service in a military unit, including the bearing, keeping, maintenance and use of arms, may perform alternative service. ...”", "Section 5. Duration of alternative service", "“The duration of alternative military service is 36 months.", "The duration of alternative labour service is 42 months.”", "Section 14. Ensuring the implementation of alternative service", "“Conscription for alternative service is organised and its implementation is supervised by a public authority in the field of defence authorised by the Government of Armenia. ...”", "Section 17. Procedure for performing alternative labour service", "“1. A citizen conscripted to perform alternative labour service shall be sent, in accordance with the prescribed procedure, to the institution where he is to perform his alternative labour service.", "2. The head of the local institution where the alternative labour service is to be performed shall include the alternative labour serviceman in the institution’s personnel list, decide on the type, procedures and conditions of work, ensuring that he is fully occupied, and notify the local military commissariat thereof in writing within three days.", "3. The alternative labour serviceman may be transferred to perform his service in another institution or place upon the order or initiative of the authorised public authority in the field of defence.", "4. The alternative labour serviceman shall remain at his place of service around the clock. The place of service is considered to be the area which the institution has the authority to be in charge of, to possess and to use.", "5. The alternative labour serviceman may not be appointed to managerial posts or be involved in other activities during his service.", "6. The alternative labour servicemen shall be discharged from service to the reserve and registered in the reserve in accordance with a procedure prescribed by law.”", "Section 18. Responsibilities of the head of the institution where alternative labour service is performed", "“1. The head of the institution where alternative labour service is performed shall provide the alternative labour serviceman with food, a prescribed uniform, underwear, a sleeping facility, and bedding and personal hygiene items; shall familiarise [the alternative labour serviceman] with the internal rules of work discipline and the specifics of the work to be performed.", "2. The head of the institution shall guarantee the alternative labour serviceman’s security at the place of service, oversee the implementation of the service and create the necessary conditions for the serviceman’s rest and family visits, in accordance with the procedure prescribed by the Act Establishing the Internal Regulations for Service in the Armed Forces.", "3. The head of the institution is responsible for the organisation and implementation of alternative labour service at the institution.”", "Section 19. Rights and obligations of alternative servicemen", "“1. An alternative serviceman shall receive the same monthly allowance as that established for a private in compulsory military service. ...", "...", "4. During their service, alternative servicemen shall uphold the internal rules of service discipline, fulfil their responsibilities and follow the orders or instructions of the relevant head (or commander), wear the prescribed uniform and not leave the place of service without authorisation. ...”", "Section 20. Social security cover for alternative servicemen and their family members", "“1. Questions related to social security cover for alternative military servicemen and their family members are regulated by the Social Security of Military Servicemen and their Family Members Act.", "2. Social security ... of alternative labour servicemen and their family members shall be implemented in accordance with the procedure prescribed by the State Pensions Act. ...”", "2. Amendments of 2 May 2013 with effect from 8 June 2013", "29. On 28 April 2011 amendments were proposed to the Alternative Service Act. In the Explanatory Report on the proposed amendments, it was indicated that the Act – introduced for the purpose of fulfilling the obligations assumed by Armenia upon joining the Council of Europe – fell short of international standards. Its main shortcomings included the following:", "(a) the fact that those performing alternative labour service were under military supervision, which contradicted their religious beliefs. Moreover, military supervision was prescribed in the case not only of alternative military service but also of alternative labour service. It deprived those whose religious beliefs contradicted not only the bearing and use of arms but also any kind of service under military supervision, of an alternative to compulsory military service; and", "(b) the duration of the alternative service.", "30. The amendments in question were eventually passed on 2 May 2013 and entered into force on 8 June 2013. They included the following changes:", "- section 5 was amended, reducing the duration of alternative military service to thirty months and that of alternative labour service to thirty-six months;", "- in section 14 a distinction was made between alternative military service, which was to be organised and supervised by a public authority in the field of defence, and alternative labour service, which was to be organised and supervised by a public authority authorised by the Government. The new section 14 further specified that alternative labour service could not be supervised by the military;", "- section 17 no longer required the head of the institution where alternative labour service was to be performed to ensure that the serviceman was fully occupied. The serviceman’s transfer could be ordered or initiated by the National Commission (see paragraphs 35 and 36 below) as opposed to an “authorised public authority in the field of defence” and he was no longer to be required to stay at his place of service around the clock;", "- section 18(1) no longer required the head of the alternative service institution to provide the serviceman with food, uniform and other items. In the new section 18(2) the reference to the Internal Regulations for Service in the Armed Forces was removed, and the new text required the head of the institution to ensure that the serviceman’s conditions of work were the same as those of other temporary or permanent employees.", "Pursuant to the new section 19, an alternative labour serviceman was no longer to receive the same monthly allowance as that established for a private in compulsory military service, but an allowance of up to 30,000 Armenian drams. The obligation to wear a uniform was also removed.", "C. Military Service Act (2002)", "31. Section 4 provides that the term of compulsory military service for privates is twenty-four months.", "D. Criminal Code Implementation Act (2003; as amended in 2013)", "32. On 2 May 2013 a number of amendments to the Act were passed. They entered into force on 8 June 2013 and included the following amendment:", "“A person who has committed an offence under [, inter alia, Article 327 of the Criminal Code] motivated by his religious beliefs or views and who is serving a sentence ..., may apply to a court for review of the sentence. The court shall discontinue any criminal proceedings and exempt the person concerned from serving the remainder of the sentence, provided that he applies for alternative service before 1 August 2013 and the authorised body decides to grant the application in accordance with the procedure prescribed by the Alternative Service Act.”", "E. Government Decree No. 940-N of 25 June 2004 establishing the list of institutions where alternative service may be performed and the rules concerning the alternative serviceman’s uniform", "33. Pursuant to paragraph 2(b), alternative labour servicemen were to perform their service in various institutions under the authority of the Ministry of Health and the Ministry of Labour and Social Affairs, such as orphanages, retirement homes, mental health institutions, institutions for disabled persons and hospitals. They were to perform the functions of an orderly. Pursuant to paragraph 3, the Minister of Defence, the Minister of Labour and Social Affairs and the Minister of Health were entrusted with providing alternative labour servicemen with clothing, food and financial means. The decree also set out the rules on the uniforms to be worn by both alternative military servicemen and alternative labour servicemen.", "34. On 1 August 2013 the decree was amended and made applicable only to alternative military servicemen.", "F. Government Decree No. 271-N of 10 March 2005 approving the establishment, procedures and composition of the National Commission examining applications for alternative service", "35. The decree established a National Commission to examine applications for alternative service. The commission was composed of the head of the General Staff of the Armed Forces of Armenia, as its president, the Military Commissar of Armenia ( ՀՀ զինվորական կոմիսար ) as its vice-president, the Deputy Minister of Health, the Deputy Minister of Labour and Social Affairs, the head of the Governmental Department for National Minorities and Religious Affairs, and the head of the Governmental Department for Administrative Bodies.", "36. On 25 July 2013 the decree was repealed and replaced with Decree No. 797-A, which modified the composition of the National Commission to include the First Deputy Minister of Territorial Administration as its president, the Deputy Minister of Health, the Deputy Minister of Labour and Social Affairs, the Deputy Minister of Education and Science, the Deputy Minister of Defence, the Deputy Chief of Police and the head of the Governmental Department for National Minorities and Religious Affairs.", "G. Order No. 142 of 20 December 2004 of the Head of General Staff of the Armed Forces of Armenia", "37. For the purpose of supervising the work discipline of persons conscripted to perform alternative labour service, the Military Commissar of Armenia and the head of the Military Police Division of the Ministry of Defence were ordered: (a) to carry out weekly joint spot checks to verify the presence of persons performing alternative labour service at the institutions located within the territory of the regional military commissariats and their sub-divisions; (b) to report the results of such checks to the head of the General Staff at the end of each month; and (c) to report immediately to the head of the General Staff in the event that any alternative labour servicemen were absent and to take necessary measures to find them.", "H. Case-law of the Court of Cassation", "38. On 28 March 2014 and 27 March 2015 the Court of Cassation examined appeals by two conscientious objectors against their convictions by the lower courts under Article 327 of the Criminal Code (criminal cases nos. KD1/0053/01/12 and GD1/0006/01/13). It found that since their cases met the conditions specified in the Criminal Code Implementation Act, as amended on 8 June 2013, the provisions of that Act were applicable and hence their sentences were to be quashed and the criminal proceedings discontinued for lack of corpus delicti.", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Committee of Ministers of the Council of Europe", "1. Recommendation No. R(87)8 regarding Conscientious Objection to Compulsory Military Service", "40. The Committee of Ministers noted that “alternative service shall not be of a punitive nature. Its duration shall, in comparison to that of military service, remain within reasonable limits”.", "2. Recommendation CM/Rec(2010)4 of the Committee of Ministers to member States on human rights of members of the armed forces", "41. The Committee of Ministers recommended that member States should ensure that any limitations on the right to freedom of thought, conscience and religion of members of the armed forces complied with the requirements of Article 9 § 2 of the Convention, that conscripts should have the right to be granted conscientious objector status and that alternative service of a civilian nature should be proposed to them. The Explanatory Memorandum to this Recommendation noted, in particular, that the length of any alternative service to be performed by objectors should be reasonable in comparison with the length of ordinary military service. It further noted that the European Committee of Social Rights had deemed alternative service exceeding one ‑ and ‑ a ‑ half times the length of military service to be excessive.", "B. Parliamentary Assembly of the Council of Europe (PACE)", "1. General documents", "Recommendation 1518 (2001): Exercise of the right of conscientious objection to military service in Council of Europe member States", "42. PACE recommended that the Committee of Ministers invite those member States that had not yet done so to introduce into their legislation a genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.", "2. Armenia-specific documents", "(a) Opinion no. 221 (2000): Armenia’s application for membership of the Council of Europe", "43. PACE noted that Armenia had undertaken to honour the following commitment:", "“to adopt, within three years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose, when the law on alternative service had come into force, to perform non-armed military service or alternative civilian service.”", "(b) Resolution 1532 (2007): Honouring of obligations and commitments by Armenia", "44. As regards Armenia’s commitment to enact legislation on alternative service “in compliance with European standards” and “pardon all conscientious objectors sentenced to prison terms”, PACE noted with disappointment that the current law, as amended in 2005 and subsequently in June 2006, still did not offer conscientious objectors any guarantee of “genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character”, as provided for by Council of Europe standards. It was deeply concerned that, for lack of a genuine form of civilian service, dozens of conscientious objectors, most of whom were Jehovah’s Witnesses, continued to be imprisoned, since they preferred prison to an alternative service which was not of a truly civilian nature. PACE urged the Armenian authorities to amend the law on alternative service in accordance with the recommendations made by the Council of Europe experts and, in the meantime, to pardon the young conscientious objectors serving prison sentences.", "C. European Commission against Racism and Intolerance (ECRI)", "45. In its Second Report on Armenia, adopted on 30 June 2006, ECRI noted:", "“The overwhelming majority of conscientious objectors in Armenia are Jehovah’s Witnesses. They are thus disproportionately affected by the issue of alternative service. On this point, the Armenian Parliament passed, on 1 December 2003, the [Alternative Service Act] which took effect on 1 July 2004. This law provides for alternative military service of 36 months and an alternative civilian service of 42 months. ECRI notes that alternative civilian service, which lasts longer than actual military service, is carried out under military supervision. ECRI has further been informed that directors of institutions (which include hospitals) where conscientious objectors carry out their duty receive their instructions about the conditions and modalities of their service from the military. Moreover, conscientious objectors are sent to military hospitals for medical treatment, they are largely confined to their place of service and required to wear military uniform. They also receive assignments and changes of assignments which are determined by the military. ... ECRI wishes to point out that the aim of the [Alternative Service Act] was to prevent conscientious objectors from being imprisoned for refusing to carry out military service. However, as a number of people are currently in prison for leaving or refusing to join the alternative civilian service due to the military influence on this service, the aim of the [Alternative Service Act] has unfortunately not been met.”", "D. Commissioner for Human Rights of the Council of Europe", "46. In his report of 9 May 2011 following his visit to Armenia from 18 to 21 January 2011, the Commissioner stated:", "“The issue of imprisoned conscientious objectors – currently, all of whom are members of the Jehovah’s Witnesses community – has been on the table for many years. Conscientious objectors are not willing to perform an alternative service option which is under the supervision of the military. There is still no alternative to military service available in Armenia which can be qualified as genuinely civilian in nature. The Commissioner strongly believes that conscientious objectors should not be imprisoned and urges the authorities to put in place an alternative civilian service.", "...", "The right to conscientious objection remains an open issue in Armenia. Those asking to perform civilian service on the basis of conscientious objection are mainly members of the Jehovah’s Witnesses community. Over 70 persons are currently imprisoned for their refusal to serve in the army or to perform alternative military service. The conscientious objectors have all been sentenced under [Article] 327.1 of the Criminal Code to imprisonment ranging from 24 to 36 months.", "The Law on Alternative service was adopted in 2003 and entered into force in 2004. The performance of alternative service remains under the supervision of the military, which constitutes a major obstacle for members of the Jehovah’s Witnesses community on the basis of their religious beliefs. Another issue is the potentially punitive length of the civilian service, which currently amounts to 42 months, while regular military service is 24 months. In this respect, the European Committee of Social Rights of the Council of Europe has found that a period of alternative service which is double the duration of military service is excessively lengthy and contrary to Article 1.2 of the European Social Charter. Under this article, alternative service may not exceed one and a half times the length of armed military service.", "At their meeting with the Commissioner, officials from the Ministry of Defence expressed readiness to amend the [Alternative Service Act]. In particular, the Minister indicated that on the basis of the amendments, supervision will be exercised by a ministry designated for the implementation of alternative service (labour, health, defence, etc.), thereby suggesting that a genuinely civilian service would be available. The draft Law on Amendments to the [Alternative Service Act] was adopted by the government in April 2011.", "Conclusions and recommendations", "...", "The Commissioner finds that there is an urgent need to review the [Alternative Service Act] and to develop appropriate mechanisms in order to create a genuinely civilian service option in Armenia. It is also important that the length of the alternative service be adjusted – taking into consideration the duration of military service - in a way that it is not perceived as punitive, deterrent or discriminatory.”", "47. In their formal response to the Commissioner’s report, the Government admitted that the exercise of the right to conscientious objection was still flawed in Armenia, and that they intended to introduce further legislative amendments to promote civilian control over alternative service and completely to withdraw military control over such service. That function was to be assigned to a new body composed of representatives of the Ministry of Health, the Ministry of Labour and Social Affairs and strictly civil service officers of the Ministry of Defence.", "E. European Committee of Social Rights", "48. In its Conclusions XIX-1 of 24 October 2008 regarding compliance by Greece with Article 1 § 2 of the European Social Charter (The right to work: effective protection of the right of the worker to earn his living in an occupation freely entered upon), the European Committee of Social Rights noted:", "“The Committee notes that [the periods of alternative service to replace armed military service] are nearly double the length of armed military service. Admittedly, recognised conscientious objectors are in a better position than they are in countries that do no grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alternative service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than duty. Under Article 1 § 2 of the Charter, alternative service may not exceed one and a half times the length of armed military service.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "49. The applicants complained that the criminal proceedings against them and their convictions had violated their rights guaranteed by Article 9 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "50. The Government argued that the applicants had failed to exhaust domestic remedies. In particular, on 2 May 2013 amendments had been introduced to the Criminal Code Implementation Act, pursuant to which: (a) a person serving a sentence under Article 327 of the Criminal Code was to be released provided that he applied for alternative service before 1 August 2013 and his application was granted; (b) both pre-trial and trial proceedings were to be discontinued; (c) the criminal record of those concerned was to be deleted; and (d) the term of alternative service was to be reduced by the period of actual service of the sentence or the period of deprivation of liberty during criminal prosecution. After the introduction of those amendments, the Court of Cassation had quashed a number of convictions of conscientious objectors and discontinued the criminal proceedings for lack of corpus delicti. The amendments had been introduced while the applicants were still serving their sentences. Thus, they had had the opportunity to be afforded appropriate redress by means of acquittal and rehabilitation had they applied for alternative service before a specific date, but they had not seized that opportunity.", "51. The applicants contested the Government’s non-exhaustion claim and argued that the provisions of the Criminal Code Implementation Act as amended did not constitute an effective remedy as they did not provide a possibility for genuine rehabilitation or for compensation to be paid. Substituting the remainder of their sentences with alternative service would have led to a situation in which, having served twenty-four months in prison, they would still need to perform a further twelve months of alternative service, because one full day of imprisonment was equivalent to one eight-hour working day of alternative service. Such a scheme was punitive and akin to substituting their terms of imprisonment for a non ‑ custodial sentence and then increasing their sentences from thirty to thirty ‑ six months, which could not be considered an acquittal or rehabilitation. Moreover, the Government had failed to disclose that the National Commission, that is the authority entrusted with deciding on applications for alternative service, had not begun functioning until months after the amendments had been introduced, with its first hearing being held on 23 October 2013. By then, the applicants had already been released from prison.", "52. The Court considers that the Government’s objection of non ‑ exhaustion is closely linked to the substance of the applicants’ complaint and must be joined to the merits.", "53. Furthermore, although the parties did not contest the applicability of Article 9 to the case, the Court considers it necessary to address this question of its own motion. It reiterates in this regard that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case (see Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011; Erçep v. Turkey, no. 43965/04, § 47, 22 November 2011; Savda v. Turkey, no. 42730/05, § 91, 12 June 2012; and Papavasilakis v. Greece, no. 66899/14, § 36, 15 September 2016).", "54. In the present case, the applicants are Jehovah’s Witnesses, a religious group whose beliefs include the conviction that service, even unarmed, within the military is to be opposed. Article 9 has already been found to be applicable to such opposition to military service (see Bayatyan, cited above, § 111). However, in contrast to the case of Bayatyan, the applicants in the present case objected to performing not only military service but also the substitute service which had been available in Armenia since 2004, alleging that it was not of a genuinely civilian nature and was punitive in nature. Having regard to the overall circumstances of the case, the Court has no reason to doubt that the applicants’ objection to both military and alternative service was motivated by their religious beliefs, which were genuinely held and were in serious and insurmountable conflict with their obligation to perform such service. Accordingly, Article 9 is applicable to the applicants’ case.", "55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicants", "56. The applicants alleged that the alternative labour service was not of a genuinely civilian nature, referring to the arguments raised in that connection in their appeals (see paragraph 21 above). Although the physical work of an alternative labour serviceman was technically performed at a civilian institution, everything about that programme and all the activities of the serviceman were under military control and supervision. The military authorities could transfer an alternative labour serviceman at will to another assignment. He was required to be at his place of assignment twenty-four hours a day, seven days a week, and was ordered to wear a uniform provided by the military authorities, which was similar in appearance to a military uniform. The cover of the alternative labour serviceman’s record booklet bore the military insignia and once his service had been completed he would be discharged and registered in the military reserve. Any violation of the prescribed procedure gave rise to sanctions in accordance with military rules and any orders given to an alternative labour serviceman were to be implemented in accordance with a procedure prescribed by the Act Establishing the Internal Rules of Service in the Armed Forces. Alternative labour servicemen were at all times subject to military authority and discipline. Thus, it could not be said that the alternative labour service contained only a few formal elements of military supervision, as the Government claimed (see paragraph 58 below). In fact, from the perspective of religious conscience, it was the same as unarmed military service.", "57. The applicants further referred to the fact that the law had later been amended, arguing that the Government had conceded that it had been fundamentally flawed. One of the main defects identified when the amendments had been proposed was that the alternative labour service was under military control. Prior to those amendments there had been no genuine alternative service of a clearly civilian nature in Armenia. PACE and the Committee of Ministers had repeatedly called on the Armenian authorities to introduce a clearly civilian service. The applicants submitted that the fact that the law had eventually been amended in 2013 to remove all military control and supervision and to place the programme under a purely civilian administration also confirmed that it had not been necessary in a democratic society to prosecute and imprison them.", "(b) The Government", "58. The Government submitted that in 2003 Armenia had enacted a law on alternative service as part of the commitments undertaken upon joining the Council of Europe. Unfortunately, it had transpired that there were a number of omissions in that law and inconsistencies with the European standards. However, in deciding on the applicants’ criminal cases, the domestic courts had been bound to apply the law as in force at the material time. Referring to the findings of the Criminal Court of Appeal, the Government argued that the alternative labour service available at the material time had been of a civilian nature and contained only a few formal elements of military supervision in theory, not being directly controlled by the military in practice. Thus, the interference was legitimate and prescribed by law.", "59. The Government further submitted that the present case was to be distinguished from the Bayatyan case, since the applicants in the present case had had the possibility of substituting military service with alternative service of a civilian nature. Nevertheless, taking into account the shift in the case-law brought about by the Bayatyan judgment and a number of opinions and recommendations of various international bodies, including the Venice Commission, the domestic law had been amended on 2 May 2013 in order to provide a possibility for those who objected not only to the carrying of arms or performing other military activities but also to serving under any type of military command in general. In conclusion, there had been no interference with the applicants’ right to freedom of thought, conscience or religion and there had been no violation of Article 9 of the Convention.", "2. The Court’s assessment", "(a) Whether there was an interference", "60. The Government made contradictory submissions regarding the existence of an interference, arguing, on the one hand, that “the interference was legitimate and prescribed by law”, but, on the other hand, that there was no interference. In any event, the Court considers that the applicants’ refusal to be drafted for military and alternative service was a manifestation of their religious beliefs and their conviction for draft evasion therefore amounted to an interference with their freedom to manifest their religion, as guaranteed by Article 9 § 1 (see, mutatis mutandis, Bayatyan, cited above, § 112). Such interference will be contrary to Article 9 unless it is “ prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, among other authorities, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 98, ECHR 2016).", "(b) Whether the interference was justified", "(i) Prescribed by law and legitimate aim", "61. There is no dispute between the parties as to whether the interference was prescribed by law and pursued a legitimate aim.", "62. The Court considers it unnecessary to determine this question, since the interference was in any event incompatible with Article 9 for the reasons set out below (see, mutatis mutandis, Bayatyan, cited above, §§ 113-17).", "(ii) Necessary in a democratic society", "(α) General principles", "63. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 ‑ I; Leyla Şahin v. Turkey [GC], no. 44774/98, § 104, ECHR 2005 ‑ XI; and Bayatyan, cited above, § 118).", "64. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 60, ECHR 2000 ‑ XI, and Bayatyan, cited above, § 119).", "65. According to its settled case-law, the Court leaves to States Parties to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary. This margin of appreciation goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Leyla Şahin, cited above, § 110). Furthermore, in so far as the Court has had opportunity to consider this issue, it has made clear that a State which has not introduced alternatives to compulsory military service in order to reconcile the possible conflict between individual conscience and military obligations enjoys only a limited margin of appreciation and must advance convincing and compelling reasons to justify any interference. In particular, it must demonstrate that the interference corresponds to a “pressing social need” (see Bayatyan, cited above, § 123).", "66. The Court has also held that any system of compulsory military service imposes a heavy burden on citizens. It will be acceptable if it is shared in an equitable manner and if exemptions from this duty are based on solid and convincing grounds. However, a system which imposes on citizens an obligation which has potentially serious implications for conscientious objectors, such as the obligation to serve in the army, without making allowances for the exigencies of an individual’s conscience and beliefs, would fail to strike a fair balance between the interests of society as a whole and those of the individual (ibid., §§ 124 and 125).", "(β) Application of the above principles to the present case", "67. The Court notes that, in contrast to the Bayatyan case cited above, the applicants in the present case, as already noted above, had the opportunity at the material time to refuse compulsory military service for reasons of conscience and to perform “alternative labour service” instead, pursuant to sections 2 and 3 of the Alternative Service Act, since such service had been introduced in Armenia in 2004 and was performed outside the armed forces of Armenia (see paragraph 28 above). However, in the Court’s opinion, that fact alone is not sufficient to conclude that the authorities have discharged their obligations under Article 9 of the Convention. The Court must also verify that the allowances made were appropriate for the exigencies of an individual’s conscience and beliefs. In this connection, while accepting that the States Parties to the Convention enjoy a certain margin of appreciation regarding the manner in which their systems of alternative service are organised and implemented, the Court considers that the right to conscientious objection guaranteed by Article 9 of the Convention would be illusory if a State were allowed to organise and implement its system of alternative service in a way that would fail to offer – whether in law or in practice – an alternative to military service of a genuinely civilian nature and one which was not deterrent or punitive in character. It is therefore necessary to determine whether the alternative labour service available to the applicants at the material time complied with those requirements.", "68. The Court notes that it is not in dispute between the parties that the work performed by alternative labour servicemen was of a civilian nature. Such servicemen were assigned to various civilian institutions, such as orphanages, retirement homes, mental health institutions, institutions for disabled persons and hospitals, and performed the functions of an orderly (see paragraph 33 above). However, in the Court’s opinion, the nature of the work performed is only one of the factors to be taken into account when deciding whether alternative service is of a genuinely civilian nature. Such factors as authority, control, applicable rules and appearances may also be important for the determination of that question.", "69. The Court notes, firstly, that, while alternative labour servicemen were accountable and subordinate primarily to the heads of the civilian institutions where the service was performed, the military authorities were, nevertheless, actively involved in the supervision of that service. In particular, they carried out regular spot checks at the relevant civilian institutions, upon the order of the head of the General Staff of the Armed Forces of Armenia, for the purpose of “supervising the work discipline of alternative labour servicemen”. In the event of the unauthorised absence of an alternative labour serviceman, they were required to take measures to find him (see paragraph 37 above). Secondly, the military authorities had the power to influence an alternative labour serviceman’s service by ordering his transfer to another institution or place of service (see section 17(3) of the Alternative Service Act in paragraph 28 above). Thirdly, certain aspects of the alternative labour service were organised in accordance with the Internal Rules of Service in the Armed Forces (see section 18(2) of the Act in paragraph 28 above). The Court further refers to the findings of the European Commission against Racism and Intolerance, which the Government did not explicitly contest, according to which the heads of the civilian institutions where alternative labour service was performed received instructions about the conditions and modalities of the service from the military, while conscientious objectors were sent to military hospitals for medical treatment and received assignments and changes of assignments determined by the military (see paragraph 47 above). The Court therefore considers that the alternative labour service was not sufficiently separated hierarchically and institutionally from the military system at the material time. Furthermore, as regards appearances, the Court notes that alternative civilian servicemen were required to wear a uniform and to stay at their place of service. They also had “The Armed Forces of Armenia” written on the cover of their alternative labour serviceman’s record booklets. Thus, taking into account all the above-mentioned factors, the Court considers that the alternative labour service available to the applicants at the material time was not of a genuinely civilian nature.", "70. The Court turns to the question as to whether the alternative labour service could be perceived as being deterrent or punitive in character. It considers that the duration of the service may be a relevant factor to consider, among others, when determining this question. In this connection, the Court refers to the findings of the European Committee of Social Rights, also mentioned by the Commissioner for Human Rights of the Council of Europe in his report following his visit to Armenia in January 2011, to the effect that the length of alternative service may not exceed one and a half times the length of armed military service (see paragraphs 46 and 48 above). In Armenia, where armed military service lasts for a relatively long period of twenty-four months (see paragraph 31 above), the alternative labour service was significantly longer than one and a half times that period, lasting, at the material time, forty-two months (see section 5 of the Alternative Service Act in paragraph 28 above). In the Court’s opinion, such a significant difference in duration of service must have had a deterrent effect and can be said to have contained a punitive element.", "71. The Court also notes that the Government admitted that the system of alternative labour service, as provided for by the Alternative Service Act, had shortcomings. The Armenian parliament was even more explicit in its criticism of the alternative labour service, pointing out as two of its main shortcomings the military supervision and its duration (see paragraph 29 above). The Alternative Service Act was eventually amended in 2013 with the purpose of eliminating the shortcomings, and a number of relevant governmental decrees were subsequently also amended or repealed (see paragraphs 30, 34 and 36 above). The Court lastly notes that the shortcomings of the alternative labour service were also highlighted in a number of international and domestic reports (see paragraphs 39 and 44-47 above).", "72. In the light of the above, the Court concludes that the authorities failed, at the material time, to make appropriate allowances for the exigencies of the applicants’ conscience and beliefs and to guarantee a system of alternative service that struck a fair balance between the interests of society as a whole and those of the applicants, as required by Article 9 of the Convention. It follows that the applicants’ convictions constituted interferences which were not necessary in a democratic society within the meaning of that provision.", "73. Having reached this conclusion, the Court considers it necessary to address the Government’s non-exhaustion objection. The Court notes that the authorities introduced legislative amendments on 8 June 2013 which allowed the applicants to have their final convictions reviewed and to be released from prison, conditional on having submitted applications before 1 August 2013 seeking to perform alternative service and on such applications being granted by the relevant authority (see paragraph 32 above). By then, the applicants had already served almost two years of their sentences. Furthermore, that measure was introduced after the applicants had already lodged their applications with the Court. The Court notes that, while the measure could have potentially led to the commutation of the remainder of the applicants’ sentences with alternative service and the quashing of their final convictions for lack of corpus delicti, it does not appear from the case-law of the Court of Cassation – nor has it been argued by the Government – that it was meant to lead to an acknowledgment of a violation of their rights guaranteed by Article 9 of the Convention or to an award of compensation for any non-pecuniary damage suffered by the applicants as a result of an alleged violation of those rights (see paragraph 38 above). Moreover, that measure was conditional on the applicants’ performance of alternative service instead of serving the remainder of their sentences and depended on the positive exercise of a discretion by the relevant authority. In such circumstances, the Court considers that the measure in question was not an effective and adequate remedy capable of providing redress in respect of violations of the applicants’ rights. It therefore decides to dismiss the Government’s non-exhaustion objection.", "74. There has accordingly been a violation of Article 9 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION", "75. The first, third and fourth applicants complained that the courts had failed to provide relevant and sufficient reasons in their decisions to detain them. They relied on Article 5 § 1 of the Convention.", "76. The Government contested those allegations.", "77. Having regard to the facts of the case, the submissions of the parties and its findings under Article 9 of the Convention, the Court considers that it has examined the main legal question raised in the present application and that there is no need to give a separate ruling on this complaint (see, mutatis mutandis, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicants claimed 32,400 euros (EUR) each in respect of non ‑ pecuniary damage.", "80. The Government contested the claims and submitted that the amounts claimed were exorbitant.", "81. The Court considers that the applicants have undoubtedly suffered non-pecuniary damage as a result of their convictions and imprisonment. It awards them EUR 12,000 each in respect of such damage.", "B. Costs and expenses", "82. The applicants also claimed a total of EUR 11,900 for the costs of the two lawyers who had represented them before the domestic courts and EUR 9,000 for the costs of the two lawyers who had represented them before the Court. In support of their claims, the applicants submitted letters addressed to them by the lawyers requesting lump-sum payments for various portions of the work done.", "83. The Government submitted that the amounts requested were excessive and not duly substantiated. Firstly, the applicants had engaged an excessive number of lawyers. Secondly, the hourly rates claimed (EUR 200 to 300) were unheard of in Armenia. Thirdly, the amounts in question could not be said to have been actually incurred because the letters submitted by the applicants, in the absence of an actual contract between the parties or an invoice, could not serve as a proof of payment or of an obligation to pay. Fourthly, the applicants had failed to provide detailed information on the number of hours of work performed.", "84. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicants have failed to submit any legal document, such as a contract signed with their representatives or invoices issued by them, in support of their claim that they were bound to pay the amounts in question. The letters submitted by the applicants could not serve as such proof. In such circumstances, the Court rejects the applicants’ claim for legal costs.", "C. Default interest", "85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1990 and lives in St Petersburg.", "7. In 2014 the applicant graduated with a master ’ s degree in philosophy from the Herzen State Pedagogical University of Russia ( РГПУ им. А. И. Герцена ). He then became liable to be called up for military service.", "8. At the end of August 2014, in an attempt to find what he described as “a lawful way to avoid military service”, the applicant attended a legal seminar organised by the Committee of Soldiers ’ Mothers ( Комитет солдатских матерей ) in St Petersburg. He submitted that his participation in the seminar had finally allowed him to understand his adherence to pacifist philosophy.", "9. On 4 September 2014 the applicant applied to the local military commissariat to be assigned to civilian service instead of compulsory military service. In support of his application, the applicant attached his curriculum vitae and a letter of recommendation from his place of work.", "10. His application was examined by a military recruitment commission composed of seven members: a deputy head of the administration of the Frunzenskiy district of St Petersburg (the president of the commission); a head of the military commissariat of the Frunzenskiy district of St Petersburg; the secretary of the commission ( an employee of the military commissariat); a medical officer of the military commissariat responsible for the medical certification of individuals liable to be called up for military service; a deputy head of the local department of neighbourhood and juvenile police; a head of the educational department of the administration of the Frunzenskiy district of St Petersburg; and a deputy head of the employment office of the Frunzenskiy district of St Petersburg.", "11. On 25 November 2014 the applicant ’ s application was dismissed. According to the minutes of the relevant meeting of the commission, the documents and information provided by the applicant were not sufficiently persuasive for it to conclude that he was a genuine pacifist.", "12. On the following day the applicant brought a court action challenging that decision. The applicant attached his curriculum vitae and a letter of recommendation.", "13. On 9 February 2015, while the judicial proceedings were still pending, the applicant lodged a second application to be assigned to civilian service instead of military service. That application was rejected as repetitive without having been considered on the merits.", "14. On 25 February 2015 the Frunzenskiy District Court of St Petersburg dismissed a complaint lodged by the applicant, reasoning as follows:", "“ [The] court does not determine the existence of humanist or pacifist convictions from the personal file of the conscript, since [such convictions] are not mentioned in his curriculum vitae or [letter of recommendation from his place of work ]. His views regarding the impossibility of his performing military service should have been formed over a period of time ... spontaneously crystallised convictions cannot serve as grounds for requesting permission to perform alternative civilian service.", "Considering all the items of evidence provided and their intertwined nature, the court finds the circumstances relied on by the applicant to be not proven.”", "15. On 12 August 2015 the St Petersburg City Court upheld the judgment of 25 February 2015 on appeal. The applicant did not participate in the appeal hearing for unspecified reasons. He did not adduce any new evidence before the appeal court. The relevant parts of the judgment read as follows:", "“... the right to have compulsory military service replaced with its civilian alternative does not imply that a citizen can unconditionally choose between the military and civilian types of service, and it does not mean that an individual ’ s negative attitude towards military service in itself ... guarantees the right to have compulsory military service replaced.", "This position is also reflected in the practice of the European Court of Human Rights, which has stated that only when opposition to military service is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person ’ s conscience or his deeply and genuinely held religious or other beliefs does it constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 [of the Convention ] ...", "[The court] finds that it is not sufficient for a citizen to simply indicate that his personal convictions conflict with his obligation to serve in the army in order to have compulsory military service replaced.", "An individual must substantiate such an assertion, indicate the reasons and circumstances that impelled him to ask for the replacement [of military by civilian service], list facts confirming those of his deep beliefs that conflict with the [the obligation to perform ] military service, and adduce relevant evidence.", "...", "As can be seen from the facts of the case, [the applicant] ... presented his curriculum vitae, in which he listed his main periods of education, ... stated that his beliefs about human beings and their place in the world had been formed under the influence of several philosophers, and [stated] that his views on the army and the military way of life had been affected by his brother ’ s stories about his own army service. According to the applicant, his convictions had finally crystallised after he had attended a legal seminar organised by the Committee of Soldiers ’ Mothers in St Petersburg.", "A personal reference given to the applicant [by his employer] listed both his negative and positive qualities; however, like his curriculum vitae, it did not contain information demonstrating the existence of any deep convictions preventing him from performing military service.", "[The applicant] did not present any additional information [ ... ] before either the military recruitment commission, the first instance or the appeal court.", "[The applicant] has failed to prove ... the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions ...", "...", "[The applicant] was given an opportunity to bring to the attention of the military recruitment commission arguments [supporting] the existence of [his] convictions or religious beliefs ... However, no convictions objectively preventing him from performing compulsory military service were established.”", "16. Subsequent cassation appeals lodged by the applicant were dismissed on 3 November 2015 by the St Petersburg City Court and on 24 March 2016 by the Supreme Court. The cassation courts fully endorsed the appeal court ’ s reasoning." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution of the Russian Federation", "17. Article 59 of the Constitution reads, in the relevant part, as follows:", "“1. The defence of the Fatherland shall be the duty and obligation of citizens of the Russian Federation.", "...", "3. A citizen of the Russian Federation shall have the right to replace military service with alternative civilian service in the case that his convictions or religious beliefs preclude military service, and also in other cases provided by the federal law.”", "B. Civilian Service Act", "18. Alternative civilian service in Russia is regulated by the Civilian Service Act, Law No. 113-FZ of 25 July 2002 ( Федеральный закон от 25.07.2002 N 113-ФЗ « Об альтернативной гражданской службе » ).", "19. Section 2 of the Act provides that all citizens are entitled to have compulsory military service replaced by its civilian alternative if their personal convictions or religious beliefs conflict with the duty to perform military service.", "20. Section 10 ( 1 ) sets out a process by which citizens are assigned to alternative civilian service: an application is lodged for the replacement of military service by civilian service; the application is examined by a military recruitment commission; a medical examination is carried out; and the individual concerned is dispatched to his or her assigned duty station.", "21. Section 11 ( 1 ) indicates, inter alia, that individuals are to lodge such applications at least six months before the beginning of their scheduled draft service. Those who enjoy draft deferments ( such as for the purpose of university studies) are to lodge their applications within ten days of such deferment coming to an end.", "22. Under section 11 ( 1 ) ( in fine ), individuals have to substantiate that their beliefs are in conflict with the duty to perform military service.", "23. An application for the replacement of military service must indicate the reasons and circumstances prompting an individual to lodge it. The request should be accompanied by a curriculum vitae and a personal reference from that individual ’ s place of work and/or study. Other documents may be attached to the application, and the individual may give the names of persons willing to testify in support of his application ( section 11 ( 2 ) ).", "24. Section 12 provides that the military recruitment commission should only examine an application for the replacement of military service in the presence of an applicant. The military recruitment commission should consider : oral statements made by an applicant, together with statements by any individuals who have agreed to testify in support of his application; documents provided; and any additional material obtained by the commission. Decisions on applications are to be adopted by a simple majority. Two-thirds of the members of the military recruitment commission must be present in order to constitute a quorum. An application may be dismissed if, inter alia, the documents and other material submitted do not prove that the applicant ’ s personal convictions or beliefs are in conflict with the obligation to serve in the army. Where an application for the replacement of civilian service by military service is dismissed, the commission must produce a reasoned decision and provide a copy thereof to the applicant.", "25. All decisions adopted by the military recruitment commission may be challenged before the courts of general jurisdiction under Chapter 22 of the Code of Administrative Procedure. A disputed decision is automatically suspended pending the adoption of a final judgment by a domestic court ( section 15).", "C. Compulsory Military Service Act", "26. Section 2 5 § 1 of the Compulsory Military Service Act, Law No. 53 ‑ FZ of 28 March 2002 ( Федеральный закон от 28.03.1998 N 53-ФЗ «О воинской обязанности и военной службе » ) provides that as a general rule the military draft takes place twice a year : from 1 April until 15 July and from 1 October until 15 December.", "27. A military recruitment commission consists of: the head or a deputy head of a municipal entity, who serves as the president of the military recruitment commission; an officer of a military commissariat, who serves as the deputy president of the military recruitment commission; the secretary of the commission; a medical officer responsible for the medical certification of individuals liable to be called up for military service; a representative of a local internal affairs agency ( орган внутренних дел – a police body); a representative of an “ education governing agency ” ( орган, осуществляющий управление в сфере образования ); and a representative of an employment office ( section 27 ( 1).", "28. Under section 27 ( 2 ) of the Act, representatives of other agencies and organisations may sit on a military recruitment commission.", "D. Code of Administrative Procedure", "29. Under Article 186 § 1, a judgment becomes final upon the expiry of the time-limit set for parties to lodge an appeal, if that judgment has not been appealed against. Under Article 298 § 1, parties have one month to lodge an appeal from the moment of adoption of a judgment.", "30. Article 186 § 2 provides that where an appeal has been lodged, a judgment enters into force on the day on which it is upheld by the appeal court. In the event that the appeal court quashes or modifies the first ‑ instance judgment and adopts a new decision, the latter enters into force immediately.", "31. Chapter 22 of the Code of Administrative Procedure governs proceedings whereby individuals challenge decisions and acts by ( or inaction on the part of ) the public authorities.", "32. Under Article 226 § 8, domestic courts examine the lawfulness of a challenged decision ( or act / failure to act). Courts are not bound by arguments raised by claimants and are required to fully examine matters listed in paragraphs 9 and 10 of the same Article. In particular, courts must assess whether the rights and freedoms of a claimant were breached, whether domestic authorities acted ultra vires, and whether the requirements regarding ( i ) the grounds for a contested decision (or act/failure to act) and (ii) the procedure by that decision was adopted were observed.", "33. Courts are empowered to rule a decision or act ( or failure to act) challenged before them unlawful, in full or in part. In such a case a court may, where necessary, indicate steps required to be made by the relevant authorities in order to remedy a breach of the domestic law and the rights and freedoms of a claimant (Article 227 § 2).", "E. Decree of the Government of the Russian Federation No. 663 of 11 November 2006", "34. The Decree lays down procedural arrangements for the organisation of biannual military drafts. Section 22 of the Decree provides that at the end of a draft period a military recruitment commission, inter alia, must cancel all those of its military conscription decisions that have subsequently been overturned during that period by a regional military recruitment commission or a court.", "35. The Decree is furthermore complemented by Order of the Minister of Defence no. 400 of 2 October 2007, which specified the procedure to be followed in respect of its implementation. Section 7 of annex no. 33 to the Order provides that upon the end of a draft period all unimplemented military conscription decisions are to be revoked by a regional military recruitment commission.", "F. Ruling of the Constitutional Court no. 447-O of 17 October 2006", "36. Examining the compatibility of section 11 of the Civilian Service Act with the Constitution, the Constitutional Court ruled as follows:", "“ [It ] is not possible to limit by means of procedural rules an individual ’ s freedom of conscience and religion and, accordingly, his right [to be assigned to ] alternative civilian service .... Therefore, section 11 of the Civilian Service Act ... cannot be interpreted as laying down time - limits ... that cannot be renewed for good reasons.”", "III. RELEVANT INTERNATIONAL DOCUMENT", "37. On 9 April 1987 the Committee of Ministers adopted Recommendation No. R (87) 8 to Member States Regarding Conscientious Objection to Compulsory Military Service, which laid down, inter alia, the following basic principles:", "“A. Basic principle", "1. Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, under the conditions set out hereafter. Such persons may be liable to perform alternative service;", "B. Procedure", "2. States may lay down a suitable procedure for the examination of applications for conscientious objector status or accept a declaration by the person concerned giving his reasons;", "3. With a view to the effective application of the principles and rules of this recommendation, persons liable to conscription shall be informed in advance of their rights. For this purpose, the state shall provide them with all relevant information directly or allow the private organisations concerned to furnish that information;", "4. Applications for conscientious objector status shall be made in ways and within time-limits to be determined having due regard to the requirement that the procedure for the examination of an application should, as a rule, be completed before the individual concerned is actually conscripted into the armed forces;", "5. The examination of applications shall include all the necessary guarantees for a fair procedure;", "6. An applicant shall have the right to appeal against the decision at first instance;", "7. The appeal authority shall be separate from the military administration and composed in such a manner as to ensure its independence.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "38. The applicant complained under Article 9 of the Convention that his application for the replacement of his compulsory military service with its civilian alternative had been arbitrarily dismissed.", "39. Article 9 of the Convention reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions by the parties", "1. The applicant", "40. The applicant submitted that the denial of permission for him to perform alternative civilian service had interfered with his right under Article 9 of the Convention. He argued that the interference had not been prescribed by law and had not been necessary in a democratic society because there had been no independent mechanism in Russia for the examination of applications for the replacement of compulsory military service by its civilian alternative and that, in any event, the applicant ’ s application to be assigned to alternative civilian service had not been treated in a manner that had been in full compliance with the domestic procedure.", "41. The applicant indicated that the insignificant number of annual applications to be assigned to alterative civil service and the hardships attached to performing that service (such as its lengthier duration and the particular conditions under which such service is performed ) require that all applicants applying for such replacement should be presumed to be sincere in their beliefs. However, the authorities required him to provide evidence to substantiate his convictions.", "42. As regards the existence of an effective mechanism for the examination of applications for the replacement of the compulsory military service by civilian service, the applicant submitted that military recruitment commissions in Russia were not independent of the military authorities, given certain aspects of their composition and functioning.", "43. In particular, the applicant stressed that the standard composition of a recruitment commission comprised exclusively government officials. Typically they did not contain either any independent experts acting in a personal capacity or members of the public.", "44. Furthermore, the applicant indicated that recruitment commissions did not have their own funding and relied heavily on the administrative support of military commissariats. All decision made during recruitment commissions ’ sessions were de facto made by the heads of military commissariats.", "45. Referring to the circumstances of his case, the applicant submitted that, contrary to the requirements of the domestic law, he had not been given the full reasoning for the decision of the recruitment commission. That had rendered the subsequent judicial review (see paragraphs 14-16 above) ineffective.", "46. The applicant also disagreed with the statistical information provided by the respondent Government. According to the information obtained by the applicant ’ s representative from the St Petersburg Military Commissariat and the St Petersburg City administration, out of 560 applications for alternative civilian service lodged in St Petersburg from 2014 until 2017, only 325 were granted. That ran counter to the information provided by the Government in their observations (see below).", "47. He also observed that some of the examples of the domestic courts ’ rulings submitted by the Government (see below) were not relevant to the subject matter of the present case. At the same time, the applicant cited 123 cases considered between 2014 and 2017 where domestic courts had upheld decisions of the military recruitment commissions dismissing applications to be assigned to civilian service.", "48. Lastly, the applicant claimed that the judicial review process in Russia was overall ineffective, as courts were not empowered to allow applications for the replacement of military service with civilian service and were forced to return them to the commissions for reconsideration.", "2. The Government", "49. The Government submitted that the Russian law guaranteed the right of an individual to ask for the replacement of compulsory military service with its civilian alternative.", "50. They furthermore stated that there was an effective and independent domestic mechanism in Russia for the examination of replacement applications. Referring to the provisions of the law (see paragraphs 17 ‑ 28 above) they described the composition of military recruitment commissions, and the procedure for the examination of replacement applications.", "51. The Government furthermore indicated that the military recruitment commission in the applicant ’ s case had been created by a decree issued by the Governor of St Petersburg. The commission had consisted of seven members. Three of them were representatives of the Ministry of Defence. The remaining four members were independent of the military authorities.", "52. Both at the meeting of the recruitment commission on 25 November 2014 and during the court proceedings the applicant had been provided with an opportunity to present his explanations, to submit evidence and to question witnesses in support of his claims. The Government noted that the applicant had failed to secure presence of a witness in his support during the first instance hearing. They further stated that the replacement application had been dismissed, in full compliance with the domestic law, because he had failed to prove that he had held beliefs preventing him from serving in the army. The proceedings had not been tainted by arbitrariness or bias.", "53. The Government also provided statistical data on alternative civil service in Russia. According to information from the Ministry of Defence, from 2014 until 2017 individuals had made 4, 110 applications to be assigned to alternative civilian service. Almost 98 % of them had been allowed.", "54. As regards judicial review of refusals to replace military service with civilian service, the Government indicated that from 2014 until 2017 courts had allowed forty-four appeals against refusals by military recruitment commissions to allow the replacement of military service with its civilian alternative.", "3. Submissions by the third - party intervener", "55. The Movement of Conscientious Objectors, a non-governmental organisation working with conscientious objectors in Russia, acting as a third party, argued that recruitment commissions were not independent of the military authorities. Commissions relied on administrative and financial support from commissariats. In practice, the head of each military commissariat made all the decisions and the remaining members simply concurred with him. Procedural rules were quite frequently violated during the commissions ’ sessions.", "56. The third-party intervener provided statistics on applications to be assigned to alternative civil service lodged with its assistance from 2015 until 2017. Out of 242 applications only 115 had been allowed.", "57. The Movement of Conscientious Objectors also referred to fifty-six domestic court decisions delivered in 2016. Only four of those decisions had allowed appeals against decisions issued by military recruitment commissions.", "B. Assessment by the Court", "1. Admissibility", "58. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) The Court ’ s approach in the present case", "59. The Court reiterates that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person ’ s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 of the Convention. Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case (see Bayatyan v. Armenia [GC], no. 23459/03, §110, ECHR 2011 ).", "60. The Court furthermore notes that States are bound by primarily negative undertaking to abstain from any interference with the rights guaranteed by Article 9 of the Convention. The Court finds that interference will take place where an individual ’ s request, motivated by religious beliefs or convictions, to be drafted for alternative civilian service is dismissed by national authorities. Such interference will be contrary to Article 9 of the Convention unless it is “ prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, mutatis mutandis, Adyan and Others v. Armenia, no. 75604/11, § 60, 12 October 2017).", "61. In this regard, the Court also reiterates that it has previously found that denying an individual an opportunity to perform alternative civilian service would not be necessary in a democratic society within the meaning of Article 9 of the Convention, where, inter alia, this individual had provided solid and convincing reasons justifying his exemption from military service (see Bayatyan, cited above, §§ 125-28)", "62. At the same time, the Court is mindful that were an individual requests a special exemption bestowed upon him due to his religious beliefs or convictions, it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation of genuine belief and, if that substantiation is not forthcoming, to reach a negative conclusion ( see Kosteski v. the former Yugoslav Republic of Macedonia, no. 55170/00, § 39, 13 April 2006; Enver Aydemir v. Turkey, no. 26012/11, § 81, 7 June 2016; Papavasilakis v. Greece, no. 66899/14, § 54, 15 September 2016 ).", "63. Accordingly, States are allowed to establish procedures to assess the seriousness of the individual ’ s beliefs and to thwart any attempt to abuse the possibility of an exemption on the part of individuals who are in a position to perform their military service (see Papavasilakis, cited above, § 54). At the same time, there is a corresponding positive obligation on domestic authorities to ensure that procedures for establishing whether an applicant is entitled to conscientious objector status are effective and accessible (see Papavasilakis, cited above, §§ 50-53; Savda v. Turkey, no. 42730/05, § 99, 12 June 2012). One of the fundamental conditions for such procedure to be considered effective is the independence of the individuals examining requests for the replacement of military service (see Papavasilakis, cited above, § 60).", "64. In the light of the above observations, in order to establish whether the requirements of Article 9 of the Convention were met in the present case the Court will examine, firstly, whether domestic authorities managed to establish an appropriate framework in Russia and, secondly, whether the respondent State complied with their negative obligations in the applicant ’ s case.", "(b) Positive obligations of the respondent State", "( i ) Proceedings before a military commission", "65. The Court notes that the Constitution of the Russian Federation expressly provides the general right of conscientious objectors to have their obligatory military service replaced with its civilian alternative (see paragraph 17 above ).", "66. The replacement of military service is not unconditional. Applications are subject to the approval of a recruitment commission, in accordance with the provisions of the Civilian Service Act (see paragraphs 18 - 25 above ). In this regard the Court reiterates that an assessment of the seriousness of an individual ’ s convictions cannot in itself be regarded as being contrary to Article 9 of the Convention, given the necessity to identify conscripts who are simply pretending to be conscientious objectors (see Papavasilakis, cited above, § 54).", "67. The examination of a replacement application is undertaken by a recruitment commission in the presence of the claimant, who is able to present evidence and witness testimony without any restrictions. A commission is also able to collect on its own motion any information that it deems necessary.", "68. The Court furthermore reiterates that one of the fundamental conditions for an investigation to be considered effective is the independence of the individuals conducting it (see Papavasilakis, cited above, § 6 0 ).", "69. The Court observes that under the Compulsory Military Service Act (see paragraph 27 above ) a military recruitment commission is composed of at least seven members. Three of them are representatives of the Ministry of Defence. The remaining four members, including the president of the military commission, are officials of public bodies that are structurally independent of the military authorities.", "70. It follows that Russian military recruitment commissions are comprised of government officials ( either military or civil ). They do not comprise any civil society experts acting in a personal capacity or members of the public. The Court is mindful that the Compulsory Military Service Act provides for the possibility to have representatives of other agencies and organisations in the composition of recruitment commissions. However, the parties did not provide examples of such cases.", "71. Assessing the procedure further, the Court notes that, under the Civilian Service Act, a commission can deliver decisions if no less than two-thirds of its members are present. That could result in situations where the majority of its members are military officials.", "72. Therefore, in practice, the composition of a recruitment commission may vary not only from one region to another – it can also change between sessions. While such variability in the composition of the body that is responsible for deciding on replacement applications may be unfortunate, the question for the Court is whether the requirement that the military recruitment commission be independent has been complied with in the specific circumstances of the present case.", "73. In this connection, the Court also does not lose sight of the argument put forward both by the applicant and the third- party intervener that recruitment commissions relied heavily on administrative support from military commissariats and it was the heads of commissariats who de facto made all decisions during sessions of recruitment commissions.", "74. While it appears that military commissariats indeed provide premises for commissions ’ sessions, nothing suggests that individual members obtain any payments or incentives from the military authorities. They remain employed by their own State agencies and are not subject to any pressure or receive any instructions from the Ministry of Defence. Accordingly, the Court finds that the provision of ordinary administrative support cannot in itself be seen as affecting the independence of a commission ’ s members.", "75. Furthermore, the Court considers that the allegation (see the submissions of the applicant and the third party in paragraphs 4 4 and 5 5 above) that members of recruitment commissions did not have true voting powers and that all decisions were de facto made by the heads of the military commissariats is speculative and cannot be regarded as valid in the absence of any credible evidence to support it.", "( ii ) Proceedings before the domestic courts", "76. The Court observes that all decisions adopted by a military recruitment commission are amenable to an appeal before the national courts of general jurisdiction (see paragraph 25 above ). Courts are vested with broad powers of review with regard to military commissions ’ decisions. Judicial scrutiny covers all matters of fact and law as well as observance of the rights and freedoms of a claimant. Courts are empowered to declare a contested decision unlawful, as well as to order measures to remedy breaches of the law and individual rights and freedoms (see paragraphs 31 - 33 above).", "77. The Court furthermore notes that commissions ’ decisions are automatically suspended pending the adoption of a final judgment by a domestic court. This is an important safeguard preventing individuals from being conscripted into military service while court proceedings are still ongoing.", "78. The Court is mindful that under the Russian Code of Administrative Procedure a judgment becomes final on the day that it is upheld by an appeal court (see paragraphs 29 and 30 ). Consequently, a two-tier review in cassation proceedings before the regional courts and the Supreme Court has no suspensive effect. However, this would not automatically render cassation proceedings ineffective. Moreover, the applicant never argued that cassation appeal had not in practice been accessible to him or had otherwise been ineffective owing to the lack of any suspensive effect.", "( iii ) Statistical information", "79. The Court observes that both the applicant and the respondent Government relied on statistical data. However, there was a significant discrepancy between the respective information submitted.", "80. According to the applicant, from 2014 until 2017 approximately 60 % of all applications for the replacement of military service lodged in St Petersburg were granted (325 applications out of 560). By contrast, the Government indicated an almost 98 % approval rate regarding such applications for the entire country in the same period, which would amount to a total of approximately eighty-eight dismissals out of 4, 110 replacement applications lodged country-wide. Information provided by the third - party intervener indicated that approximately 50 % of all applications lodged with their assistance were approved in the period in question.", "81. The Court is not in a position to determine whether the reasons for such a significant discrepancy were due to the differences in statistical technology or to calculation errors. Nonetheless, all three approaches confirm the absence of institutional bias against individuals seeking the replacement of military service with its civilian alternative. The Court will, therefore, proceed with that in mind.", "( iv ) Conclusion", "82. To sum up, the Court considers that the existing mechanism in Russia for the examination of applications for the replacement of compulsory military service with its alternative civilian version provides wide scope for an examination of individual circumstances and encompasses sufficient procedural guarantees for a fair procedure as required by international standards (see paragraph 37 ) and the Court ’ s case law (see paragraph 6 3 ). While in practice, in certain circumstances, the composition of a commission may raise doubts as to its independence, the general rule, as can be seen from the regulatory framework and the examples provided by the parties, is that a recruitment commission, given the structural detachment of the majority of its members from the military authorities, satisfies the prima facie requirement of independence (see, a contrario, Papavasilakis, cited above, §§ 61-64).", "83. Furthermore, any procedural defects occurring at the commission level could be subsequently remedied during the judicial proceedings, given the scope of the judicial review process and the courts ’ wide powers.", "84. Accordingly, the Court concludes that the Russian authorities complied with their positive obligations under Article 9 of the Convention to establish an effective and accessible procedure for determining whether an applicant is entitled to conscientious objector status.", "(c) Negative obligations of the respondent State", "85. The Court reiterates that interference will take place where an individual ’ s request for the replacement of the compulsory military service by civilian service, motivated by serious religious beliefs or convictions, is dismissed by national authorities (see paragraph 6 0 above).", "86. The Court furthermore notes that States are generally allowed to assess the seriousness of the individual ’ s beliefs while examining whether he is entitled to conscientious objector status (see paragraphs 62 and 63 above).", "87. The Court must retain its supervisory function. It is not its task to evaluate the meaning of an applicant ’ s statements before domestic authorities and the way in which they were interpreted, this being first and foremost the role of the national authorities (see Papavasilakis, cited above, § 58 in fine ). Accordingly, save for the instances of arbitrariness or manifest unreasonableness, the Court will rely on the conclusions reached by an effective domestic mechanism after examination of an individual request.", "88. Turning to the circumstances of the present case, the Court observes that the military recruitment commission in the applicant ’ s case had a standard composition and consisted of seven members. Four of them, including the president of the commission, were structurally independent of the Ministry of Defence (see paragraph 10 above).", "89. Consequently, the Court is satisfied that the composition of the commission afforded the requisite guarantees of independence to the applicant ( compare Papavasilakis, cited above, § 61).", "90. The Court furthermore notes that the applicant ’ s request for the replacement of military service was dismissed by the commission as not sufficiently persuasive. The applicant challenged the dismissal in courts. He did not complain about scarcity of reasons before the national authorities.", "91. The domestic courts did not limit the scope of the review to the decision of the commission. The applicant ’ s replacement application was examined anew. The applicant was afforded an opportunity to put forward arguments and to adduce evidence of his beliefs ( including by introducing witness testimony ). However, he did not bring any new evidence or witnesses before the domestic courts. He adduced his curriculum vitae and a letter of recommendation (see paragraphs 12 and 15).", "92. Moreover, neither party argued that the judicial proceedings had been tainted by a violation of fair-trial guarantees; nor was there any indication that the courts held any presumptions of facts or of law against the applicant.", "93. The Court reiterates that it is not its task to substitute its own assessment of factual evidence for that of the national courts. The Court sees no reason to doubt the domestic authorities ’ assessment of the seriousness of the applicant ’ s convictions.", "94. The Court therefore accepts that the applicant has failed to substantiate the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions.", "95. Accordingly, there has been no violation of Article 9 of the Convention." ]

[ "the circumstances of the case", "7. The applicants were elected to the General Grand Council (the parliament of the Republic of San Marino) in elections held on 30 May 1993.", "8. Shortly afterwards, they requested permission from the Captains-Regent, who act as the heads of government in San Marino, to take the oath required by section 55 of the Elections Act (Law no. 36 of 1958) without making reference to any religious text. The Act in question referred to a decree of 27 June 1909, which laid down the wording of the oath to be taken by members of the Republic’s parliament as follows:", "“I, …, swear on the Holy Gospels ever to be faithful to and obey the Constitution of the Republic, to uphold and defend freedom with all my might, ever to observe the Laws and Decrees, whether ancient, modern or yet to be enacted or issued and to nominate and vote for as candidates to the Judiciary and other Public Office only those whom I consider apt, loyal and fit to serve the Republic, without allowing myself to be swayed by any feelings of hatred or love or by any other consideration.”", "9. In support of their request the applicants referred to Article 4 of the Declaration of Rights of 1974, which guarantees the right to freedom of religion, and Article 9 of the Convention.", "10. At the General Grand Council session of 18 June 1993 the applicants took the oath in writing, in the form of words laid down in the decree of 27 June 1909 save for the reference to the Gospels, which they omitted. At the same time, the first applicant drew attention to the obligations undertaken by the Republic of San Marino when it became a party to the European Convention on Human Rights.", "11. On 12 July 1993 the Secretariat of the General Grand Council gave an opinion, at the request of the Captains-Regent, on the form of the oath sworn by the applicants, to the effect that it was invalid, and referred the matter to the Council.", "12. At its session of 26 July 1993 the General Grand Council adopted a resolution proposed by the Captains-Regent ordering the applicants to retake the oath, this time on the Gospels, on pain of forfeiting their parliamentary seats.", "13. The applicants complied with the Council’s order and took the oath on the Gospels, albeit complaining that their right to freedom of religion and conscience had been infringed.", "14. Subsequently – before ever the applicants applied to the Commission – Law no. 115 of 29 October 1993 (“Law no. 115/1993”) introduced a choice for newly elected members of the General Grand Council between the traditional oath and one in which the reference to the Gospels was replaced by the words “on my honour”. The traditional wording is still mandatory for other offices, such as that of Captain-Regent or of a member of the government." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "15. Mr Buscarini, Mr Della Balda and Mr Manzaroli applied to the Commission on 17 November 1995. Relying on Article 9 of the Convention, they complained of an infringement of their right to freedom of religion and conscience.", "16. The Commission declared the application (no. 24645/94) admissible on 7 April 1997. In its report of 2 December 1997 (former Article 31 of the Convention), it concluded unanimously that there had been a violation of Article 9. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "17. The Government raised three preliminary objections and asked the Court to declare the application inadmissible or, in the alternative, to dismiss it as ill-founded and devoid of purpose.", "18. Mr Buscarini and Mr Della Balda requested the Court to dismiss the Government’s objections to admissibility and to find that there had been a breach of Article 9 of the Convention.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "A. The Government’s preliminary objections", "19. The Government raised three pleas of inadmissibility as they had before the Commission, arguing that the application was an abuse of process, that it had been lodged out of time and that domestic remedies had not been exhausted.", "1. Whether the application amounted to an abuse of process", "20. The Government asserted that the applicants had improperly made the application for political ends, as was clear from their statements announcing their intention of approaching the Commission. In support of that assertion the Government cited, inter alia, the official record of the General Grand Council session of 26 and 27 July 1993 and a number of articles which had appeared in the press after the event, even as late as October 1998.", "21. Like the Commission, the Court notes that the documents in the case file show that after taking the oath in its traditional form, Mr Buscarini and Mr Della Balda merely announced their intention of bringing the matter to the attention of “the Strasbourg Court”, a move which cannot be regarded as an abuse of the right of individual petition. Accordingly, this objection must be dismissed.", "2. Whether the application was lodged out of time", "22. The Government submitted that the application form was sent to the Commission after the time-limit laid down in former Article 26 (now Article 35 § 1) of the Convention of six months from the date of the final domestic decision. Further, they argued that, since Mr Buscarini had no power of attorney from Mr Della Balda and was not a lawyer, he could not validly act on the latter’s behalf in Commission proceedings. The Commission rejected the objection, taking the view that the applicants had complied with the six-month time-limit laid down by the Convention.", "23. The Court points out that the running of the six-month period is interrupted by the first letter from an applicant summarily setting out the object of the application, unless the letter is followed by a long delay before the application is completed. What is important is that the applicant should be clearly identifiable before that period has expired and should have submitted his or her complaints, at least in substance. Further, it is not required by either the Convention or Rule 36 of the Rules of Court that an applicant should be represented at that stage of the proceedings.", "In the instant case the first applicant, in a letter of 17 November 1993 to the Commission, set out the object of the application with precision and stated that he was acting on behalf of the other two applicants as well as in his own name. Two application forms, one signed by the first applicant and one by the second, were received by the Commission on 1 and 18 July 1994; the third applicant formally joined in the application on 24 August 1995. The application was thus lodged by all three applicants within the period laid down by former Article 26 (now Article 35 § 1) of the Convention and was duly completed later.", "Consequently, this objection must likewise be dismissed.", "3. Whether domestic remedies have been exhausted", "24. Arguing that the General Grand Council’s resolution requiring the oath to be sworn on the Gospels was a political act, the Government maintained that the applicants should have brought a civil action for redress of the alleged prejudice to them before turning – if the domestic courts held that they had no jurisdiction – to the Commission. According to the Government, such a remedy would have been both accessible and effective, as the domestic judgments that had been produced to the Commission demonstrated.", "25. Like the applicants, the Delegate of the Commission emphasised that, even supposing that a claim could as a matter of law have been brought in the civil courts, those courts would have had no choice but to “refer the matter to the General Grand Council, which would then have been a judge in its own cause”.", "26. The Court reiterates that the rule of exhaustion of domestic remedies referred to in former Article 26 (now Article 35 § 1) of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, in particular, the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3286, § 85, and the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52).", "27. In the instant case the domestic decisions relied on by the Government to show that the civil courts would have had jurisdiction to deal with the matter are irrelevant, since they concern applications for San Marinese nationality and for building permits. While the civil courts have the power to rule on whether the conditions for acquiring citizenship have been fulfilled (as in the first instance) and to award damages to a plaintiff (as in the second), they cannot in any circumstances review and quash political decisions of the General Grand Council.", "Consequently, the Court considers that the Government have not demonstrated that the remedy in question is an effective one. It follows that this objection must be dismissed.", "28. The Government also stated, both in the Commission proceedings and in their memorial to the Court, that the applicants could have brought proceedings in the Administrative Court or applied to the Sindacato della Reggenza (the body with power to review acts of the Captains-Regent). The Commission considered those remedies ineffective on the grounds that, by law, the first of them could not be used to challenge acts of the General Grand Council, and the second likewise did not cover that body’s decisions.", "The Court concurs in that conclusion.", "B. Compliance with Article 9 of the Convention", "29. Article 9 of the Convention provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "30. Mr Buscarini and Mr Della Balda submitted that the obligation which the General Grand Council imposed on them on 26 July 1993 demonstrated that in the Republic of San Marino at the material time the exercise of a fundamental political right, such as holding parliamentary office, was subject to publicly professing a particular faith, in breach of Article 9.", "31. The Commission agreed with that analysis; the Government contested it.", "32. The Government maintained that the wording of the oath in question was not religious but, rather, historical and social in significance and based on tradition. The Republic of San Marino had, admittedly, been founded by a man of religion but it was a secular State in which freedom of religion was expressly enshrined in law (Article 4 of the Declaration of Rights of 1974). The form of words in issue had lost its original religious character, as had certain religious feast-days which the State recognised as public holidays.", "The act complained of therefore did not amount to a limitation on the applicants’ freedom of religion.", "33. The applicants and the Commission rejected that assertion.", "34. The Court reiterates that: “As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it” (see the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31). That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.", "In the instant case, requiring Mr Buscarini and Mr Della Balda to take an oath on the Gospels did indeed constitute a limitation within the meaning of the second paragraph of Article 9, since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats. Such interference will be contrary to Article 9 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”.", "1. “Prescribed by law”", "35. As the Commission noted in its report (paragraph 38), “the interference in question was based on section 55 of the Elections Act, Law no. 36 of 1958, which referred to the decree of 27 June 1909 laying down the wording of the oath to be sworn by members of parliament … Therefore, it was ‘prescribed by law’ within the meaning of the second paragraph of Article 9 of the Convention”. That point was not disputed.", "2. Legitimate aim and whether “necessary in a democratic society”", "36. The Government emphasised the importance, in any democracy, of the oath taken by elected representatives of the people, which, in their view, was a pledge of loyalty to republican values. Regard being had to the special character of San Marino, deriving from its history, traditions and social fabric, the reaffirmation of traditional values represented by the taking of the oath was necessary in order to maintain public order.", "The history and traditions of San Marino were linked to Christianity, since the State had been founded by a saint; today, however, the oath’s religious significance had been replaced by “the need to preserve public order, in the form of social cohesion and the citizens’ trust in their traditional institutions”.", "It would therefore be inappropriate for the Court to criticise the margin of appreciation which San Marino had to have in this matter.", "In any event, the Government maintained, the applicants had had no legal interest in pursuing the Strasbourg proceedings since the entry into force of Law no. 115 of 29 October 1993 (“Law no. 115/1993”), which did not require persons elected to the General Grand Council to take the oath on the Gospels.", "37. According to Mr Buscarini and Mr Della Balda, the resolution requiring them to take the oath in issue was in the nature of a “premeditated act of coercion” directed at their freedom of conscience and religion. It aimed to humiliate them as persons who, immediately after being elected, had requested that the wording of the oath should be altered so as to conform with, inter alia, Article 9 of the Convention.", "38. The Court considers it unnecessary in the present case to determine whether the aims referred to by the Government were legitimate within the meaning of the second paragraph of Article 9, since the limitation in question is in any event incompatible with that provision in other respects.", "39. The Court notes that at the hearing on 10 December 1998 the Government sought to demonstrate that the Republic of San Marino guaranteed freedom of religion; in support of that submission they cited its founding Statutes of 1600, its Declaration of Rights of 1974, its ratification of the European Convention in 1989 and a whole array of provisions of criminal law, family law, employment law and education law which prohibited any discrimination on the grounds of religion. It is not in doubt that, in general, San Marinese law guarantees freedom of conscience and religion. In the instant case, however, requiring the applicants to take the oath on the Gospels was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion, a requirement which is not compatible with Article 9 of the Convention.", "As the Commission rightly stated in its report, it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs.", "40. The limitation complained of accordingly cannot be regarded as “necessary in a democratic society”. As to the Government’s argument that the application ceased to have any purpose when Law no. 115/1993 was enacted, the Court notes that the oath in issue was taken before the passing of that legislation.", "41. In the light of the foregoing, there has been a violation of Article 9 of the Convention.", "II. application of article 41 of the Convention", "42. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "43. Mr Buscarini and Mr Della Balda claimed no more than one Italian lira for the damage which they alleged they had suffered as a result of being required to take the oath on the Gospels.", "44. The Government did not express a view on this point.", "45. Although the applicants did not expressly say so, their claim obviously relates to non-pecuniary damage. Like the Delegate of the Commission, the Court considers that in the circumstances of the case the finding of a violation of Article 9 of the Convention constitutes sufficient just satisfaction under Article 41.", "B. Costs and expenses", "46. The applicants also sought reimbursement of their costs and expenses but did not specify an amount.", "47. The Government did not make any submissions on this point. The Delegate of the Commission wished to leave the matter to the Court’s discretion.", "48. By Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. Since the applicants did not quantify their claim, the Court dismisses it." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. Mr Minos Kokkinakis, a retired businessman of Greek nationality, was born into an Orthodox family at Sitia ( Crete ) in 1919. After becoming a Jehovah ’ s Witness in 1936, he was arrested more than sixty times for proselytism. He was also interned and imprisoned on several occasions.", "The periods of internment, which were ordered by the administrative authorities on the grounds of his activities in religious matters, were spent on various islands in the Aegean (thirteen months in Amorgos in 1938, six in Milos in 1940 and twelve in Makronisos in 1949).", "The periods of imprisonment, to which he was sentenced by the courts, were for acts of proselytism (three sentences of two and a half months in 1939 - he was the first Jehovah ’ s Witness to be convicted under the Laws of the Metaxas Government (see paragraph 16 below) -, four and a half months in 1949 and two months in 1962), conscientious objection (eighteen and a half months in 1941) and holding a religious meeting in a private house (six months in 1952).", "Between 1960 and 1970 the applicant was arrested four times and prosecuted but not convicted.", "7. On 2 March 1986 he and his wife called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her. Mrs Kyriakaki ’ s husband, who was the cantor at a local Orthodox church, informed the police, who arrested Mr and Mrs Kokkinakis and took them to the local police station, where they spent the night of 2-3 March 1986.", "A. Proceedings in the Lasithi Criminal Court", "8. The applicant and his wife were prosecuted under section 4 of Law no. 1363/1938 making proselytism an offence (see paragraph 16 below) and were committed for trial at the Lasithi Criminal Court ( trimeles plimmeliodikio ), which heard the case on 20 March 1986.", "9. After dismissing an objection that section 4 of that Law was unconstitutional, the Criminal Court heard evidence from Mr and Mrs Kyriakaki, a defence witness and the two defendants and gave judgment on the same day:", "\"[The defendants], who belong to the Jehovah ’ s Witnesses sect, attempted to proselytise and, directly or indirectly, to intrude on the religious beliefs of Orthodox Christians, with the intention of undermining those beliefs, by taking advantage of their inexperience, their low intellect and their naïvety. In particular, they went to the home of [Mrs Kyriakaki] ... and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encouraging her by means of their judicious, skilful explanations ... to change her Orthodox Christian beliefs.\"", "The court found Mr and Mrs Kokkinakis guilty of proselytism and sentenced each of them to four months ’ imprisonment, convertible (under Article 82 of the Criminal Code) into a pecuniary penalty of 400 drachmas per day ’ s imprisonment, and a fine of 10,000 drachmas. Under Article 76 of the Criminal Code, it also ordered the confiscation and destruction of four booklets which they had been hoping to sell to Mrs Kyriakaki.", "B. The proceedings in the Crete Court of Appeal", "10. Mr and Mrs Kokkinakis appealed against this judgment to the Crete Court of Appeal ( Efetio ). The Court of Appeal quashed Mrs Kokkinakis ’ s conviction and upheld her husband ’ s but reduced his prison sentence to three months and converted it into a pecuniary penalty of 400 drachmas per day. The following reasons were given for its judgment, which was delivered on 17 March 1987 :", "\"... it was proved that, with the aim of disseminating the articles of faith of the Jehovah ’ s Witnesses sect ( airesi ), to which the defendant adheres, he attempted, directly and indirectly, to intrude on the religious beliefs of a person of a different religious persuasion from his own, [namely] the Orthodox Christian faith, with the intention of changing those beliefs, by taking advantage of her inexperience, her low intellect and her naïvety. More specifically, at the time and place indicated in the operative provision, he visited Mrs Georgia Kyriakaki and after telling her he brought good news, pressed her to let him into the house, where he began by telling her about the politician Olof Palme and by expounding pacifist views. He then took out a little book containing professions of faith by adherents of the aforementioned sect and began to read out passages from Holy Scripture, which he skilfully analysed in a manner that the Christian woman, for want of adequate grounding in doctrine, could not challenge, and at the same time offered her various similar books and importunately tried, directly and indirectly, to undermine her religious beliefs. He must consequently be declared guilty of the above-mentioned offence, in accordance with the operative provision hereinafter, while the other defendant, his wife Elissavet, must be acquitted, seeing that there is no evidence that she participated in the offence committed by her husband, whom she merely accompanied ...\"", "One of the appeal judges dissented, and his opinion, which was appended to the judgment, read as follows:", "\"... the first defendant should also have been acquitted, as none of the evidence shows that Georgia Kyriakaki ... was particularly inexperienced in Orthodox Christian doctrine, being married to a cantor, or of particularly low intellect or particularly naïve, such that the defendant was able to take advantage and ... [thus] induce her to become a member of the Jehovah ’ s Witnesses sect.\"", "According to the record of the hearing of 17 March 1987, Mrs Kyriakaki had given the following evidence:", "\"They immediately talked to me about Olof Palme, whether he was a pacifist or not, and other subjects that I can ’ t remember. They talked to me about things I did not understand very well. It was not a discussion but a constant monologue by them. ... If they had told me they were Jehovah ’ s Witnesses, I would not have let them in. I don ’ t recall whether they spoke to me about the Kingdom of Heaven. They stayed in the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don ’ t know why they told it to me. I could not know at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs .... [However,] the discussion did not influence my beliefs ...\"", "C. The proceedings in the Court of Cassation", "11. Mr Kokkinakis appealed on points of law. He maintained, inter alia, that the provisions of Law no. 1363/1938 contravened Article 13 of the Constitution (see paragraph 13 below).", "12. The Court of Cassation ( Arios Pagos ) dismissed the appeal on 22 April 1988. It rejected the plea of unconstitutionality for the following reasons:", "\"Section 4 of Law no. 1363/1938, substituted by section 2 of Law no. 1672/1939 providing for the implementation of Articles 1 and 2 of the Constitution and enacted under the 1911 Constitution then in force, Article 1 of which prohibited proselytism and any other interference with the dominant religion in Greece, namely the Christian Eastern Orthodox Church, not only does not contravene Article 13 of the 1975 Constitution but is fully compatible with the Constitution, which recognises the inviolability of freedom of conscience in religious matters and provides for freedom to practise any known religion, subject to a formal provision in the same Constitution prohibiting proselytism in that proselytism is forbidden in general whatever the religion against which it is directed, including therefore the dominant religion in Greece, in accordance with Article 3 of the 1975 Constitution, namely the Christian Eastern Orthodox Church.\"", "It also noted that the Crete Court of Appeal had given detailed reasons for its judgment and had complied with the 1975 Constitution in applying the impugned provisions.", "In the opinion of a dissenting member, the Court of Cassation should have quashed the judgment of the court below for having wrongly applied section 4 of Law no. 1363/1938 in that it had made no mention of the promises whereby the defendant had allegedly attempted to intrude on Mrs Kyriakaki ’ s religious beliefs and had given no particulars of Mrs Kyriakaki ’ s inexperience and low intellect.", "III. THE JEHOVAH ’ S WITNESSES IN GREECE", "22. The Jehovah ’ s Witnesses movement appeared in Greece at the beginning of the twentieth century. Estimates of its membership today vary between 25,000 and 70,000. Members belong to one of 338 congregations, the first of which was formed in Athens in 1922.", "23. Since the revision of the Constitution in 1975 the Supreme Administrative Court has held on several occasions that the Jehovah ’ s Witnesses come within the definition of a \"known religion\" (judgments nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985, 790 and 3533/1986 and 3601/1990). Some first-instance courts, however, continue to rule to the contrary ( Heraklion Court of First Instance, judgments nos. 272/1984 and 87/1986). In 1986 the Supreme Administrative Court held (in judgment no. 3533/1986) that a ministerial decision refusing the appointment of a Jehovah ’ s Witness as a literature teacher was contrary to freedom of conscience in religious matters and hence to the Greek Constitution.", "24. According to statistics provided by the applicant, 4,400 Jehovah ’ s Witnesses were arrested between 1975 (when democracy was restored) and 1992, and 1,233 of these were committed for trial and 208 convicted. Earlier, several Jehovah ’ s Witnesses had been convicted under Law no. 117/1936 for the prevention of communism and its effects and Law no. 1075/1938 on preserving the social order.", "The Government have not challenged the applicant ’ s figures. They have, however, pointed out that there have been signs of a decline in the frequency of convictions of Jehovah ’ s Witnesses, only 7 out of a total of 260 people arrested having been convicted in 1991 and 1992." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Statutory provisions", "1. The Constitution", "13. The relevant Articles of the 1975 Constitution read as follows:", "Article 3", "\"1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it ( omodoxi ), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.", "2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.", "3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople .\"", "Article 13", "\"1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual ’ s religious beliefs.", "2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.", "3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.", "4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.", "5. No oath may be required other than under a law which also determines the form of it.\"", "14. The Christian Eastern Orthodox Church, which during nearly four centuries of foreign occupation symbolised the maintenance of Greek culture and the Greek language, took an active part in the Greek people ’ s struggle for emancipation, to such an extent that Hellenism is to some extent identified with the Orthodox faith.", "A royal decree of 23 July 1833 entitled \"Proclamation of the Independence of the Greek Church\" described the Orthodox Church as \"autocephalous\". Greece ’ s successive Constitutions have referred to the Church as being \"dominant\". The overwhelming majority of the population are members of it, and, according to Greek conceptions, it represents de jure and de facto the religion of the State itself, a good number of whose administrative and educational functions (marriage and family law, compulsory religious instruction, oaths sworn by members of the Government, etc.) it moreover carries out. Its role in public life is reflected by, among other things, the presence of the Minister of Education and Religious Affairs at the sessions of the Church hierarchy at which the Archbishop of Athens is elected and by the participation of the Church authorities in all official State events; the President of the Republic takes his oath of office according to Orthodox ritual (Article 33 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church.", "15. Under the reign of Otto I (1832-62), the Orthodox Church, which had long complained of a Bible society ’ s propaganda directed at young Orthodox schoolchildren on behalf of the Evangelical Church, managed to get a clause added to the first Constitution (1844) forbidding \"proselytism and any other action against the dominant religion\". The Constitutions of 1864, 1911 and 1952 reproduced the same clause. The 1975 Constitution prohibits proselytism in general (Article 13 para. 2 in fine - see paragraph 13 above): the ban covers all \"known religions\", meaning those whose doctrines are not apocryphal and in which no secret initiation is required of neophytes.", "2. Laws nos. 1363/1938 and 1672/1939", "16. During the dictatorship of Metaxas (1936-40) proselytism was made a criminal offence for the first time by section 4 of Law ( anagastikos nomos ) no. 1363/1938. The following year that section was amended by section 2 of Law no. 1672/1939, in which the meaning of the term \"proselytism\" was clarified:", "\"1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender.", "The term of imprisonment may not be commuted to a fine.", "2. By ‘ proselytism ’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion ( eterodoxos ), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety.", "3. The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance.\"", "B. Case-law", "17. In a judgment numbered 2276/1953 a full court of the Supreme Administrative Court ( Symvoulio tis Epikratias ) gave the following definition of proselytism:", "\"Article 1 of the Constitution, which establishes the freedom to practise any known religion and to perform rites of worship without hindrance and prohibits proselytism and all other activities directed against the dominant religion, that of the Christian Eastern Orthodox Church, means that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of the Constitution.\"", "18. The Greek courts have held that persons were guilty of proselytism who had: likened the saints to \"figures adorning the wall\", St Gerasimos to \"a body stuffed with cotton\" and the Church to \"a theatre, a market, a cinema\"; preached, while displaying a painting showing a crowd of wretched people in rags, that \"such are all those who do not embrace my faith\" (Court of Cassation, judgment no. 271/1932, Themis XVII, p. 19); promised Orthodox refugees housing on specially favourable terms if they adhered to the Uniate faith (Court of Appeal of the Aegean, judgment no. 2950/1930, Themis B, p. 103); offered a scholarship for study abroad (Court of Cassation, judgment no. 2276/1953); sent Orthodox priests booklets with the recommendation that they should study them and apply their content (Court of Cassation, judgment no. 59/1956, Nomiko Vima, 1956, no. 4, p. 736); distributed \"so-called religious\" books and booklets free to \"illiterate peasants\" or to \"young schoolchildren\" (Court of Cassation, judgment no. 201/1961, Criminal Annals XI, p. 472); or promised a young seamstress an improvement in her position if she left the Orthodox Church, whose priests were alleged to be \"exploiters of society\" (Court of Cassation, judgment no. 498/1961, Criminal Annals XII, p. 212).", "The Court of Cassation has ruled that the definition of proselytism in section 4 of Law no. 1363/1938 does not contravene the principle that only the law can define a crime and prescribe a penalty. The Piraeus Criminal Court followed it in an order ( voulevma ) numbered 36/1962 (Greek Lawyers ’ Journal, 1962, p. 421), adding that the expression \"in particular\" in section 4 of Law no. 1363/1938 (see paragraph 16 above) referred to the means used by the person committing the offence and not to the description of the actus reus.", "19. Until 1975 the Court of Cassation held that the list in section 4 was not exhaustive. In a judgment numbered 997/1975 (Criminal Annals XXVI, p. 380) it added the following clarification:", "\"... it follows from the provisions of section 4 ... that proselytism consists in a direct or indirect attempt to impinge on religious beliefs by any of the means separately listed in the Law.\"", "20. More recently courts have convicted Jehovah ’ s Witnesses for professing the sect ’ s doctrine \"importunately\" and accusing the Orthodox Church of being a \"source of suffering for the world\" ( Salonika Court of Appeal, judgment no. 2567/1988); for entering other people ’ s homes in the guise of Christians wishing to spread the New Testament ( Florina Court of First Instance, judgment no. 128/1989); and for attempting to give books and booklets to an Orthodox priest at the wheel of his car after stopping him ( Lasithi Court of First Instance, judgment no. 357/1990).", "In a judgment numbered 1304/1982 (Criminal Annals XXXII, p. 502), on the other hand, the Court of Cassation quashed a judgment of the Athens Court of Appeal (no. 5434/1981) as having no basis in law because, when convicting a Jehovah ’ s Witness, the Court of Appeal had merely reiterated the words of the indictment and had thus not explained how \"the importunate teaching of the doctrines of the Jehovah ’ s Witnesses sect\" or \"distribution of the sect ’ s booklets at a minimal price\" had amounted to an attempt to intrude on the complainants ’ religious beliefs, or shown how the defendant had taken advantage of their \"inexperience\" and \"low intellect\". The Court of Cassation remitted the case to a differently constituted bench of the Court of Appeal, which acquitted the defendant.", "Similarly, it has been held in several court decisions that the offence of proselytism was not made out where there had merely been a discussion about the beliefs of the Jehovah ’ s Witnesses, where booklets had been distributed from door to door ( Patras Court of Appeal, judgment no. 137/1988) or in the street (Larissa Court of Appeal, judgment no. 749/1986) or where the tenets of the sect had been explained without any deception to an Orthodox Christian ( Trikkala Criminal Court, judgment no. 186/1986). Lastly, it has been held that being an \"illiterate peasant\" is not sufficient to establish the \"naïvety\", referred to in section 4, of the person whom the alleged proselytiser is addressing (Court of Cassation, judgment no. 1155/1978).", "21. After the revision of the Constitution in 1975, the Jehovah ’ s Witnesses brought legal proceedings to challenge the constitutionality of section 4 of Law no. 1363/1938. They complained that the description of the offence was vague, but above all they objected to the actual title of the Law, which indicated that the Law was designed to preserve Articles 1 and 2 of the Constitution in force at the time (the 1911 Constitution - see paragraph 12 above), which prohibited proselytism directed against the dominant religion. In the current Constitution this prohibition is extended to all religions and furthermore is no longer included in the chapter concerning religion but in the one dealing with civil and social rights, and more particularly in Article 13, which guarantees freedom of conscience in religious matters.", "The courts have always dismissed such objections of unconstitutionality, although they have been widely supported in legal literature.", "PROCEEDINGS BEFORE THE COMMISSION", "25. Mr Kokkinakis applied to the Commission on 22 August 1988. He claimed that his conviction for proselytism was in breach of the rights secured in Articles 7, 9 and 10 (art. 7, art. 9, art. 10) of the Convention. He also relied on Article 5 para. 1 and Article 6 paras. 1 and 2 (art. 5-1, art. 6-1, art. 6-2).", "26. The Commission declared the application (no. 14307/88) admissible on 7 December 1990 except for the complaints based on Articles 5 and 6 (art. 5, art. 6), which it declared inadmissible as being manifestly ill-founded. In its report of 3 December 1991 (made under Article 31) (art. 31), the Commission expressed the opinion that", "(a) there had been no violation of Article 7 (art. 7) (by eleven votes to two);", "(b) there had been a violation of Article 9 (art. 9) (unanimously); and", "(c) no separate issue arose under Article 10 (art. 10) (by twelve votes to one).", "The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [*].", "AS TO THE LAW", "27. Mr Kokkinakis complained of his conviction for proselytism; he considered it contrary to Articles 7, 9 and 10 (art. 7, art. 9, art. 10) of the Convention, and to Article 14 taken together with Article 9 (art. 14+9).", "I. ALLEGED VIOLATION OF ARTICLE 9 (art. 9)", "28. The applicant ’ s complaints mainly concerned a restriction on the exercise of his freedom of religion. The Court will accordingly begin by looking at the issues relating to Article 9 (art. 9), which provides:", "\"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.\"", "29. The applicant did not only challenge what he claimed to be the wrongful application to him of section 4 of Law no. 1363/1938. His submission concentrated on the broader problem of whether that enactment was compatible with the right enshrined in Article 9 (art. 9) of the Convention, which, he argued, having been part of Greek law since 1953, took precedence under the Constitution over any contrary statute. He pointed to the logical and legal difficulty of drawing any even remotely clear dividing-line between proselytism and freedom to change one ’ s religion or belief and, either alone or in community with others, in public and in private, to manifest it, which encompassed all forms of teaching, publication and preaching between people.", "The ban on proselytism, which was made a criminal offence during the Metaxas dictatorship, was not only unconstitutional, Mr Kokkinakis submitted, but it also formed, together with the other clauses of Law no. 1363/1938, \"an arsenal of prohibitions and threats of punishment\" hanging over the adherents of all beliefs and all creeds.", "Mr Kokkinakis complained, lastly, of the selective application of this Law by the administrative and judicial authorities; it would surpass \"even the wildest academic hypothesis\" to imagine, for example, the possibility of a complaint being made by a Catholic priest or by a Protestant clergyman against an Orthodox Christian who had attempted to entice one of his flock away from him. It was even less likely that an Orthodox Christian would be prosecuted for proselytising on behalf of the \"dominant religion\".", "30. In the Government ’ s submission, there was freedom to practise all religions in Greece; religious adherents enjoyed the right both to express their beliefs freely and to try to influence the beliefs of others, Christian witness being a duty of all Churches and all Christians. There was, however, a radical difference between bearing witness and \"proselytism that is not respectable\", the kind that consists in using deceitful, unworthy and immoral means, such as exploiting the destitution, low intellect and inexperience of one ’ s fellow beings. Section 4 prohibited this kind of proselytism - the \"misplaced\" proselytism to which the European Court referred in its Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976 (Series A no. 23, p. 28, para. 54) - and not straightforward religious teaching. Furthermore, it was precisely this definition of proselytism that had been adopted by the Greek courts.", "A. General principles", "31. As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a \"democratic society\" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.", "While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to \"manifest [one ’ s] religion\". Bearing witness in words and deeds is bound up with the existence of religious convictions.", "According to Article 9 (art. 9), freedom to manifest one ’ s religion is not only exercisable in community with others, \"in public\" and within the circle of those whose faith one shares, but can also be asserted \"alone\" and \"in private\"; furthermore, it includes in principle the right to try to convince one ’ s neighbour, for example through \"teaching\", failing which, moreover, \"freedom to change [one ’ s] religion or belief\", enshrined in Article 9 (art. 9), would be likely to remain a dead letter.", "32. The requirements of Article 9 (art. 9) are reflected in the Greek Constitution in so far as Article 13 of the latter declares that freedom of conscience in religious matters is inviolable and that there shall be freedom to practise any known religion (see paragraph 13 above). Jehovah ’ s Witnesses accordingly enjoy both the status of a \"known religion\" and the advantages flowing from that as regards observance (see paragraphs 22-23 above).", "33. The fundamental nature of the rights guaranteed in Article 9 para. 1 (art. 9-1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 (art. 8-2, art. 10-2, art, 11-2) which cover all the rights mentioned in the first paragraphs of those Articles (art. 8-1, art. 10-1, art. 11-1), that of Article 9 (art. 9-1) refers only to \"freedom to manifest one ’ s religion or belief\". In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone ’ s beliefs are respected.", "34. According to the Government, such restrictions were to be found in the Greek legal system. Article 13 of the 1975 Constitution forbade proselytism in respect of all religions without distinction; and section 4 of Law no. 1363/1938, which attached a criminal penalty to this prohibition, had been upheld by several successive democratic governments notwithstanding its historical and political origins. The sole aim of section 4 was to protect the beliefs of others from activities which undermined their dignity and personality.", "35. The Court will confine its attention as far as possible to the issue raised by the specific case before it. It must nevertheless look at the foregoing provisions, since the action complained of by the applicant arose from the application of them (see, mutatis mutandis, the de Geouffre de la Pradelle v. France judgment of 16 December 1992, Series A no. 253-B, p. 42, para. 31).", "B. Application of the principles", "36. The sentence passed by the Lasithi Criminal Court and subsequently reduced by the Crete Court of Appeal (see paragraphs 9-10 above) amounts to an interference with the exercise of Mr Kokkinakis ’ s right to \"freedom to manifest [his] religion or belief\". Such an interference is contrary to Article 9 (art. 9) unless it is \"prescribed by law\", directed at one or more of the legitimate aims in paragraph 2 (art. 9-2) and \"necessary in a democratic society\" for achieving them.", "1. \"Prescribed by law\"", "37. The applicant said that his submissions relating to Article 7 (art. 7) also applied to the phrase \"prescribed by law\". The Court will therefore examine them from this point of view.", "38. Mr Kokkinakis impugned the very wording of section 4 of Law no. 1363/1938. He criticised the absence of any description of the \"objective substance\" of the offence of proselytism. He thought this deliberate, as it would tend to make it possible for any kind of religious conversation or communication to be caught by the provision. He referred to the risk of \"extendibility\" by the police and often by the courts too of the vague terms of the section, such as \"in particular\" and \"indirect attempt\" to intrude on the religious beliefs of others. Punishing a non-Orthodox Christian even when he was offering \"moral support or material assistance\" was tantamount to punishing an act that any religion would prescribe and that the Criminal Code required in certain emergencies. Law no. 1672/1939 (see paragraph 16 above) had, without more, stripped the initial wording of section 4 of its \"repetitive verbiage\"; it had retained all the \"extendible, catch-all\" expressions, merely using a more concise but equally \"pedantic\" style designed to ensure that non-Orthodox Christians were permanently gagged. Consequently, no citizen could regulate his conduct on the basis of this enactment.", "Furthermore, section 4 of Law no. 1363/1938 was incompatible with Article 13 of the Constitution.", "39. The Government, on the other hand, maintained that section 4 defined proselytism precisely and specifically; it listed all the ingredients of the offence. The use of the adverbial phrase \"in particular\" was of no importance, as it related only to the means by which the offence could be committed; indicative lists of this kind were, moreover, commonly included in criminal statutes.", "Lastly, the objective substance of the offence was not lacking but consisted in the attempt to change the essentials of the religious beliefs of others.", "40. The Court has already noted that the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, for example and mutatis mutandis, the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 20, para. 29). Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depend on practice.", "In this instance there existed a body of settled national case-law (see paragraphs 17-20 above). This case-law, which had been published and was accessible, supplemented the letter of section 4 and was such as to enable Mr Kokkinakis to regulate his conduct in the matter.", "As to the constitutionality of section 4 of Law no. 1363/1938, the Court reiterates that it is, in the first instance, for the national authorities, and in particular the courts, to interpret and apply domestic law (see, as the most recent authority, the Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 18, para. 42). And the Greek courts that have had to deal with the issue have ruled that there is no incompatibility (see paragraph 21 above).", "41. The measure complained of was therefore \"prescribed by law\" within the meaning of Article 9 para. 2 (art. 9-2) of the Convention.", "2. Legitimate aim", "42. The Government contended that a democratic State had to ensure the peaceful enjoyment of the personal freedoms of all those living on its territory. If, in particular, it was not vigilant to protect a person ’ s religious beliefs and dignity from attempts to influence them by immoral and deceitful means, Article 9 para. 2 (art. 9-2) would in practice be rendered wholly nugatory.", "43. In the applicant ’ s submission, religion was part of the \"constantly renewable flow of human thought\" and it was impossible to conceive of its being excluded from public debate. A fair balance of personal rights made it necessary to accept that others ’ thought should be subject to a minimum of influence, otherwise the result would be a \"strange society of silent animals that [would] think but ... not express themselves, that [would] talk but ... not communicate, and that [would] exist but ... not coexist\".", "44. Having regard to the circumstances of the case and the actual terms of the relevant courts ’ decisions, the Court considers that the impugned measure was in pursuit of a legitimate aim under Article 9 para. 2 (art. 9-2), namely the protection of the rights and freedoms of others, relied on by the Government.", "3. \"Necessary in a democratic society\"", "45. Mr Kokkinakis did not consider it necessary in a democratic society to prohibit a fellow citizen ’ s right to speak when he came to discuss religion with his neighbour. He was curious to know how a discourse delivered with conviction and based on holy books common to all Christians could infringe the rights of others. Mrs Kyriakaki was an experienced adult woman with intellectual abilities; it was not possible, without flouting fundamental human rights, to make it a criminal offence for a Jehovah ’ s Witness to have a conversation with a cantor ’ s wife. Moreover, the Crete Court of Appeal, although the facts before it were precise and absolutely clear, had not managed to determine the direct or indirect nature of the applicant ’ s attempt to intrude on the complainant ’ s religious beliefs; its reasoning showed that it had convicted the applicant \"not for something he had done but for what he was\".", "The Commission accepted this argument in substance.", "46. The Government maintained, on the contrary, that the Greek courts had based themselves on plain facts which amounted to the offence of proselytism: Mr Kokkinakis ’ s insistence on entering Mrs Kyriakaki ’ s home on a false pretext; the way in which he had approached her in order to gain her trust; and his \"skilful\" analysis of the Holy Scriptures calculated to \"delude\" the complainant, who did not possess any \"adequate grounding in doctrine\" (see paragraphs 9-10 above). They pointed out that if the State remained indifferent to attacks on freedom of religious belief, major unrest would be caused that would probably disturb the social peace.", "47. The Court has consistently held that a certain margin of appreciation is to be left to the Contracting States in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court ’ s task is to determine whether the measures taken at national level were justified in principle and proportionate.", "In order to rule on this latter point, the Court must weigh the requirements of the protection of the rights and liberties of others against the conduct of which the applicant stood accused. In exercising its supervisory jurisdiction, the Court must look at the impugned judicial decisions against the background of the case as a whole (see, inter alia and mutatis mutandis, the Barfod v. Denmark judgment of 22 February 1989, Series A no. 149, p. 12, para. 28).", "48. First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.", "Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case.", "49. The Court notes, however, that in their reasoning the Greek courts established the applicant ’ s liability by merely reproducing the wording of section 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding.", "That being so, it has not been shown that the applicant ’ s conviction was justified in the circumstances of the case by a pressing social need. The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued or, consequently, \"necessary in a democratic society ... for the protection of the rights and freedoms of others\".", "50. In conclusion, there has been a breach of Article 9 (art. 9) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 7 (art. 7)", "51. Mr Kokkinakis also relied on Article 7 (art. 7), which provides:", "\"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.\"", "In his submission, for a criminal provision to be compatible with this Article (art. 7) it must be sufficiently precise and clear (see paragraphs 37-38 above). This was not the case, he said, with section 4 of Law no. 1363/1938.", "52. The Court points out that Article 7 para. 1 (art. 7-1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused ’ s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him liable.", "It appears that this was indeed so in the present case; on this point the Court refers to paragraphs 40-41 of this judgment.", "53. In conclusion, there has been no breach of Article 7 (art. 7) of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "54. The applicant further relied on his freedom of expression, as secured in Article 10 (art. 10). His conviction, he said, struck not only at the dissemination of his religious opinions but also at that of general socio-philosophical opinions, since the Crete Court of Appeal had noted that he had talked to Mrs Kyriakaki about the politician Olof Palme and had expounded pacifist views.", "55. Having regard to its decision on Article 9 (art. 9) (see paragraph 50 above), the Court, like the Commission, considers it unnecessary to examine this complaint.", "IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 9 (art. 14+9)", "56. In his memorial of 5 August 1992 the applicant also claimed to be the victim of discrimination contrary to Article 14 taken together with Article 9 (art. 14+9). He submitted that discrimination arose from the defects in section 4 of Law no. 1363/1938 or from the use made of it.", "57. Although not raised before the Commission, this complaint relates to the same facts as do those made under Articles 7 and 9 (art. 7, art. 9); having regard to the conclusion in paragraph 50 above, however, the Court holds that it is unnecessary to deal with it.", "V. APPLICATION OF ARTICLE 50 (art. 50)", "58. Under Article 50 (art. 50) of the Convention,", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "59. At the hearing the applicant sought, firstly, compensation in the amount of 500,000 drachmas (GRD) for non-pecuniary damage.", "The Court considers that he has sustained such damage and that, notwithstanding the Government ’ s opinion to the contrary, a finding of a breach is not sufficient to compensate him for it. Making its assessment on an equitable basis as required by Article 50 (art. 50), it awards him GRD 400,000 under this head.", "60. For costs and expenses relating to the proceedings in Greece and before the Convention institutions Mr Kokkinakis sought the sum of GRD 2,789,500, of which he provided particulars.", "The Government judged this amount to be excessive. More especially, they contested the need (a) for the applicant to be represented by two lawyers in the Greek courts and before the European Court and for him to be defended by Athenian lawyers in the Cretan courts; and (b) for Mr Kokkinakis to have attended the Court of Cassation hearing.", "Like the Delegate of the Commission, the Court nevertheless finds the claim reasonable, and consequently allows it in full." ]

[ "THE CIRCUMSTANCES OF THE CASE", "7. The first applicant, Mr Dimitrios Larissis, was born in 1949 and lives in Tanagra Viotias. The second applicant, Mr Savvas Mandalarides, was born in 1948 and lives at Agria Volou. The third applicant, Mr Ioannis Sarandis, was born in 1951 and lives in Kamatero Attikis.", "At the time of the events in question, the three applicants were officers in the same unit of the Greek air force. They were all followers of the Pentecostal Church, a Protestant Christian denomination which adheres to the principle that it is the duty of all believers to engage in evangelism.", "The alleged acts of proselytism", "The alleged proselytising of airman Georgios Antoniadis by the first and second applicants", "8. In the evidence he gave for the purposes of the prosecution against the applicants (see paragraph 13 below), airman Antoniadis said that he was transferred to the applicants’ unit in 1986, two months after joining the air force, and was placed under the command of the second applicant in the teletyping service. On approximately seven occasions the first and second applicants engaged him in religious discussions, reading aloud extracts from the Bible and encouraging him to accept the beliefs of the Pentecostal Church. The second applicant told him that some members of the sect were able to speak in foreign languages with the assistance of divine power. Whenever airman Antoniadis returned from leave, the second applicant asked him if he had visited the Pentecostal Church. The former testified that he felt obliged to take part in these discussions because the applicants were his superior officers.", "The alleged proselytising of airman Athanassios Kokkalis by the first and third applicants", "9. In his statement before the Athens Permanent Air Force Court (see paragraph 13 below), airman Kokkalis testified that he served in the applicants’ unit between spring 1987 and October 1988, although he was not under the direct command of any of them. During that time the first applicant engaged him in theological discussions on approximately thirty occasions, and the third applicant on approximately fifty occasions, initially concealing the fact that they were not Orthodox Christians but subsequently criticising some of the tenets of that faith and urging airman Kokkalis to accept their beliefs. The third applicant repeatedly asked him to visit the Pentecostal Church in Larissa while he was on leave, telling him that miracles took place there including the acquisition by believers of the ability to speak in foreign languages, and gave him the Pentecostal newspaper Christianismos to read. The applicants were very good officers and were always polite to him, but their approaches bothered him nonetheless.", "The alleged proselytising of airman Nikolaos Kafkas by the first and third applicants", "10. Airman Nikolaos Kafkas was unable to give evidence at the first- instance hearing because his wife was ill, but he told the Courts-Martial Appeal Court (see paragraph 21 below) that he had served in the same unit as the applicants, under the command of the third applicant, between winter 1988 and August 1989. The applicants did not put any pressure on him to become a member of the Pentecostal Church. He himself approached the third applicant and asked why he was so peaceful, to which the latter replied that this was the result of reading the Gospel. When, at the suggestion of the first and third applicants, he started to read the Bible, he noticed a number of points of divergence between it and the teachings of the Orthodox Church. He did not have any discussions with the applicants concerning the Orthodox and Pentecostal Churches, although he did seek their advice whenever he had any questions concerning the Bible and always found their replies convincing. They never gave him any Pentecostal literature or told him to go to the Pentecostal Church. The third applicant never authorised his absence for purposes related to the Pentecostal Church, which he had visited for the first time in September 1989, after he had been discharged from the armed forces.", "Airman Kafkas’s father, Mr Alexandros Kafkas, told the first-instance court that his son had been converted from the Orthodox to the Pentecostal Church while serving in the air force under the orders of the third applicant. According to his father, shortly after he joined the unit his behaviour changed. He stopped seeing his friends, spent long periods of time in his room studying the Bible and listening to taped sermons and brought back from the barracks his television and radio sets and the books from which he used to study for university entrance examinations. He told his father that he had met two officers who were real Christians, unlike his father. When his parents followed him on one of his visits to the Pentecostal Church, he left home and went to live in Athens. He returned after twenty days, when he reconverted to the Orthodox Church, explaining to his father that the first and third applicants had converted him to the Pentecostal Church, taking advantage of their rank to exert pressure on him and using special skills of persuasion. They had told him that he would be given leave of absence if he promised to visit their church. When Alexandros Kafkas left to go on a trip, Nikolaos reconverted to the Pentecostal Church. His father concluded that his son had no will of his own and always did as he was told by other members of the Pentecostal Church.", "The alleged proselytising of the Baïramis family and their neighbours by the second applicant", "11. According to the statement of Captain Ilias Baïramis, his brother-in-law, Mr Charalampos Apostolidis, a member of the Pentecostal Church, began one day to rage at his wife, telling her that he saw Satan in her. The second applicant was summoned, and as soon as he arrived Mr Apostolidis became calmer. The second applicant then preached a sermon to the members of the Baïramis family and some neighbours who had come to see what was going on, in the course of which he urged them all to convert to the Pentecostal religion.", "The alleged proselytising of Mrs Anastassia Zounara by the second and third applicants", "12. In a statement prepared for the purposes of an administrative inquiry against the applicants, Mrs Anastassia Zounara explained that her husband had joined the Pentecostal Church, which led to the breakdown of her family life with him. In an attempt to understand her husband’s behaviour, Mrs Zounara visited the Pentecostal Church and the applicants’ homes on several occasions over a period of about five months. During this time the applicants, particularly the second and third applicants, used to visit her and urge her to join their Church. They told her that they had received signs from God and could predict the future, and that Mrs Zounara and her children were possessed by the devil. Eventually she developed psychological problems and severed all links with the applicants and the Pentecostal Church.", "B. The trial at first instance", "13. On 18 May 1992, the applicants appeared before the Permanent Air Force Court ( Diarkes Stratodikio Aeroporias ) in Athens, composed of one officer with legal training and four other officers. They were tried for various offences of proselytism, under section 4 of Law no. 1363/1938 as amended (henceforth, “section 4” – see paragraph 27 below).", "14. In a decision delivered on the day of the hearing (no. 209/92), the court rejected the defence’s argument that the law against proselytism was unconstitutional, finding that no issue could arise under the principle nullum crimen sine lege certa because of the non-exhaustive enumeration in the statute of the means by which an intrusion on another person’s religious beliefs could be brought about. It found all three applicants guilty of proselytism, holding in particular as follows.", "1. The first applicant", "15. In respect of the first applicant, the court observed:", "“The accused, while he was a military officer ... serving in Unit X, committed the offence of proselytism in the military camp of this unit between November 1986 and December 1987 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He acted with the aim of intruding on and changing the religious beliefs of airman Georgios Antoniadis, an Orthodox Christian who served in the same unit. Abusing the trust placed in him by airman Antoniadis, who was his hierarchical subordinate, the accused tried on approximately twenty occasions to persuade airman Antoniadis to become a member of the sect of the Pentecostal Church by engaging in discussions on theology with him in the course of which the accused contested the correctness of the teachings of the university department of theology concerning God and the Orthodox dogma. He also encouraged airman Antoniadis to read the Bible in the light of the accused’s own beliefs as a member of the Pentecostal Church, questioned the holy traditions and recommended that he visit the church of the Pentecostal sect in Athens.", "Acting in the same capacity, the accused committed the offence of proselytism between May 1987 and February 1988 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He acted with the aim of intruding on and changing the religious beliefs of airman Athanassios Kokkalis, an Orthodox Christian who served in the same unit. On approximately thirty occasions the accused tried to persuade airman Kokkalis to become a member of the sect of the Church of Pentecost by engaging, persistently and importunately, in discussions with him about the correctness of his beliefs as a member of the sect of the Pentecostal Church, questioning the holiness of the Christian Orthodox Church and inviting airman Kokkalis to listen to taped recordings on the beliefs of the Pentecostal sect. The accused took advantage of the trust inherent in the relationship between a subordinate and a superior and of airman Kokkalis’s naïvety, inexperience and youth, telling him that in his Church some people started speaking foreign languages under the effect of the Holy Spirit.", "Acting in the same capacity, the accused committed the offence of proselytism between spring 1989 and 18 August 1989, in the place mentioned above, by … acting with the aim of intruding on and changing the religious beliefs of airman Nikolaos Kafkas, who served under his orders in the same unit. Taking advantage of the trust inherent in the relationship between a subordinate and a superior, and of the young man’s naïvety and inexperience, the accused tried to persuade airman Kafkas to become a member of the sect of the Church of Pentecost by continually, persistently and importunately expounding on his beliefs concerning the sect of the Pentecostal Church, reading and explaining the Bible in the light of his beliefs and providing him with copies of a tract entitled Christianismos. The accused succeeded in converting airman Kafkas by taking advantage of the latter's inexperience in theological matters and the influence he had on him due to his position and rank.”", "The court also found the first applicant guilty of proselytising another airman, Stefanos Voikos.", "16. It sentenced him to five months’ imprisonment for proselytising airman Antoniadis, five months’ imprisonment for proselytising airman Kokkalis, five months’ imprisonment for proselytising airman Voikos and seven months’ imprisonment for proselytising airman Kafkas. Overall, however, because some of these periods were to run concurrently, the first applicant was ordered to spend thirteen months in prison. The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following three years.", "2. The second applicant", "17. In respect of the second applicant, the court held as follows:", "“The accused, while he was a military officer ... serving in Unit X, committed the offence of proselytism in the military camp of this unit between November 1986 and December 1987 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He took advantage of the authority exercisable by him due to the difference in rank over airman Georgiades Antoniadis, who served in the same unit. On approximately seven occasions, on dates which have not been specified, the accused tried to intrude on and change the religious beliefs of airman Antoniadis by means of skilful discussions with him concerning religion. The accused urged airman Antoniadis, because of his youth, to study nothing but the Gospel, where he told him he would find the truth, which differed from the Orthodox dogma. He also tried, by means of skilful interpretation of extracts from the Holy Gospel in accordance with the beliefs of the sect of the Pentecost, to convince him that the Orthodox faith was not correct and that he should adopt the beliefs of the accused, urging him at the same time in a pressing manner to visit during his leave the church of the Pentecostal sect in Athens.", "The accused also committed the offence of proselytism in Vólos in 1988 by … taking advantage of the inexperience and intellectual weakness of Mrs Anastassia Zounara. He tried on several occasions, on dates which have not been specified, to intrude on and change her religious beliefs by engaging in a skilful analysis of the beliefs of the sect of the Pentecost and their difference from those of the Orthodox faith. Elaborating on the correctness of the former, he tried persistently to convince her that the followers of the Pentecostal Church bore marks given to them by God, that they could prophesy the future, that she and her children were possessed by the devil who was fighting to keep control over her, that she worshipped idols and demons and that the Pentecostal Church held the truth. He also urged her in a pressing manner to be baptised and become a member of the Pentecostal Church.", "The accused also committed the offence of proselytism in Vólos on a date which has not been specified towards the beginning of June 1989. Having been summoned by Captain Ilias Baïramis, the accused went to the house of Mr Apostolos Baïramis, Captain Baïramis’s brother, where Mr Charalampos Apostolidis, the brother-in-law of the Baïramis brothers and a follower of the sect of the Pentecostal Church, was in a delirious state under the influence of his religious beliefs. He was foaming at the mouth, invoking Christ’s name and saying ‘Thank you Christ, because I have known the truth, I see the devil in my wife’s and children’s faces’. The mere fact of the accused’s presence calmed Mr Apostolidis, and the former skilfully took advantage of this by attempting to intrude upon and change the religious beliefs of Apostolos Baïramis and Marigoula, Sotirios and Evangelis Baïrami, who were present during the incident and had been impressed by it, and of a number of neighbours who gathered afterwards. He preached to them, elaborating on the beliefs of the sect of the Pentecostal Church and telling them that these, and not those of the Orthodox Church, were correct and that in 1992 the world would come to an end and the Church would be ‘captured’. He urged them persistently and importunately to believe in the true Christ and told them that, by virtue of being Christian Orthodox, they had taken sides with the devil.”", "18. The second applicant was sentenced to five months’ imprisonment for proselytising airman Antoniadis, five months’ imprisonment for proselytising Mrs Zounara, and eight months’ imprisonment for proselytising the Baïramis family and their neighbours, although he was only to serve twelve months overall. The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following three years.", "3. The third applicant", "19. In respect of the third applicant, the court held as follows:", "“The accused, while he was a military officer ... serving in Unit X, committed the offence of proselytism in the military camp of this unit between May 1987 and February 1988 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He acted with the aim of intruding on and changing the religious beliefs of airman Athanassios Kokkalis, an Orthodox Christian who served in the same unit. Taking advantage of the trust inherent in the relationship between a subordinate and a superior, the accused tried more than fifty times to convince airman Kokkalis that the teachings of the Orthodox faith were not correct on a number of issues, such as the virginity of the Holy Mother, the ranks of the priests and the power of the Holy Spirit. He engaged with airman Kokkalis in persistent and importunate discussions regarding the teachings of the sect of the Pentecostal Church, of which the accused was a follower, telling him that the teachings of the sect, rather than those of the Orthodox Church, were correct. He urged him to visit a place in Larissa where the followers of the Pentecostal Church used to gather and to become a member of the sect and he gave him a free copy of a periodical published by the followers of the Pentecostal Church entitled Christianismos. In the course of these encounters the accused intentionally failed to reveal to airman Kokkalis that he was a member of the Pentecostal sect.", "Acting in the same capacity, the accused committed the offence of proselytism in the same place for a period of four to five months in 1988, … acting with the aim of intruding on and changing the religious beliefs of Mrs Anastassia Zounara, an Orthodox Christian. He skilfully took advantage of her inexperience in religious matters and her intellectual weakness, resulting from her low level of education, and tried importunately to persuade her to be baptised and become a member of the sect of the Pentecostal Church. He told her constantly that he bore signs given to him by God, that he could foresee the future and that she and her children were possessed. His intention was to undermine her faith in Orthodoxy and convert her to the sect of the Pentecostal Church.", "Acting in the same capacity, the accused committed the offence of proselytism in the same place between spring 1989 and 18 August 1989, … acting with the aim of intruding on and changing the religious beliefs of airman Nikolaos Kafkas, an Orthodox Christian who served in the same unit. Taking advantage of the trust inherent in the relationship between a subordinate and a superior and of airman Kafkas’s naïvety and inexperience, the accused tried to persuade him to adhere to the sect of the Pentecostal Church. He engaged in continual, persistent and importunate analysis of his beliefs regarding the sect of the Pentecostal Church, continually reading the Gospel which he interpreted in accordance with his beliefs. He gave airman Kafkas publications of his sect and took him to his place of worship. In this way, he succeeded in converting airman Kafkas, taking advantage of his inexperience in religious matters and the influence he had on him because of his position and rank.”", "The court also found that the third applicant had engaged in the proselytising of a warrant officer, Adjutant Theophilos Tsikas.", "20. He was sentenced to eight months’ imprisonment for proselytising airman Kokkalis, five months’ imprisonment for proselytising Mrs Zounara, five months’ imprisonment for proselytising Adjutant Tsikas and seven months’ imprisonment for proselytising airman Kafkas. He was to serve fourteen months overall. The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following three years.", "C. The appeal to the Courts-Martial Appeal Court", "21. The applicants appealed immediately to the Courts-Martial Appeal Court ( Anatheoritiko Dikastirio ), a court composed of five military judges. Their appeal was heard on 7 October 1992.", "22. In a judgment pronounced immediately after the hearing (no. 390/1992), the Appeal Court rejected the defence’s argument to the effect that the accused had merely exercised a constitutional right and upheld most of their convictions, using the same reasoning as the first- instance court. It did, however, reverse the conviction of the first applicant for proselytising airman Voikos and that of the third applicant for proselytising Adjutant Tsikas (see paragraphs 15 and 19 above).", "23. The Appeal Court maintained the penalties imposed by the first-instance court on the first and third applicants in respect of the convictions it had upheld. However, because of the quashing of the two convictions, their overall sentences were reduced to eleven and twelve months respectively.", "It reduced the second applicant’s sentence to four months’ imprisonment for proselytising airman Antoniadis, four months for proselytising Mrs Zounara, and six months for proselytising the Baïramis family and neighbours. His overall sentence was reduced to ten months’ imprisonment.", "24. As none of the overall sentences imposed involved more than one year's imprisonment, they were automatically converted by the court into pecuniary penalties of 1,000 drachmas per day. The court ordered that the penalties should not be enforced provided that the applicants did not commit new criminal offences in the following three years.", "D. The appeal to the Court of Cassation", "25. The applicants appealed in cassation.", "In a judgment delivered on 30 July 1993 (no. 1266/1993), the Court of Cassation ( Arios Pagos ) found as follows:", "“It follows from section 4(1) and (2) of Law no. 1363/1938 [see paragraph 27 below] that in order for the crime of proselytism … to be established, there must be a direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion with the aim of undermining those beliefs, provided that the attempt is made using the means enumerated in a non-exhaustive fashion in the above-mentioned section, namely by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person’s inexperience, trust, need, low intelligence or naïvety.", "The above-mentioned provisions of this section … are not contrary to [ the provisions of the Greek Constitution guaranteeing the principle nullum crimen, nulla poena sine lege ]; moreover, they are perfectly consistent with Article 13 of the Constitution [see paragraph 26 below], which provides that all known religions are free since, under Article 13, proselytism is prohibited… The argument to the contrary finds no support in the fact that under [the previous Constitutions] the prohibition of proselytism was designed to protect the then (and still) dominant religion, whereas under the present Constitution that prohibition is associated with freedom of conscience in religious matters relating to all known religions. This reasoning is undeniably consistent with both the letter and the spirit [of section 4], pursuant to which protection from proselytism employing the unlawful means set out therein is provided for the religious convictions of all persons of different persuasions,", "i.e. all those belonging to a religion or dogma other than that of the author of the proselytism, and not exclusively those professing the principles of the Orthodox Church.", "Furthermore, freedom of conscience in religious matters and of thought, protected as a human right by the present Constitution and by Articles 18 and 19 of the United Nations’ Universal Declaration and Articles 9 and 14 of the European Convention on Human Rights, is not undermined by the above-mentioned criminal provision, since it does not sanction the holding of religious beliefs, which is completely free, but only any attempt to intrude on another person’s religious beliefs with the aim of changing them. Such attempts are quite incompatible with religious freedom, which creates an obligation to respect the religious convictions of all those who hold different beliefs.”", "The court therefore dismissed the applicants’ appeal." ]

[ "II. Relevant domestic law", "The right to religious freedom under the Greek Constitution", "26. Article 13 of the Greek Constitution provides, as relevant:", "“1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.", "2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.”", "The law on proselytism", "27. Section 4 of Law no. 1363/1938, as amended by Law no. 1672/1939, provides as follows:", "“1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender.", "2. By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion ( eterodoxos ), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person’s inexperience, trust, need, low intellect or naïvety.", "3. The commission of such an offence in a school or other educational establishment or philanthropic institution shall constitute a particularly aggravating circumstance.”", "There is a considerable body of case-law interpreting and applying this section: see the Court’s Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 13–15, §§ 17–21.", "proceedings before the commission", "28. In their applications lodged with the Commission on 28 January 1994 (nos. 23372/94, 26377/94 and 26378/94), Mr Larissis, Mr Mandalarides and Mr Sarandis claimed that section 4 of Law no. 1363/1938 was too broad and vague to be compatible with the requirements of legal certainty under Articles 7, 9 § 2 and 10 § 2 of the Convention. In addition, they complained that their convictions for proselytism amounted to violations of their rights to freedom of religion and expression under Articles 9 and 10 of the Convention, and were discriminatory, contrary to Article 14 taken in conjunction with Article 9.", "29. On 27 November 1995, the Commission ordered the joinder of the three applications under Rule 35 of its Rules of Procedure and declared them admissible.", "30. In its report of 12 September 1996 (Article 31), the Commission expressed the opinion that there had been violations of Article 9 of the Convention in so far as the second applicant was convicted of proselytising the Baïramis family and their neighbours (unanimously) and in so far as the second and third applicants had been convicted of proselytising Mrs Zounara (twenty-four votes to five). However, it found no violation of Article 9 in so far as the first and second applicants were convicted of proselytising airman Antoniadis and the first and third applicants were convicted of proselytising airman Kokkalis (twenty-eight votes to one), and in so far as the first and third applicants were convicted of proselytising airman Kafkas (twenty-three votes to six).", "It further concluded that there had been no violation of Article 7 of the Convention (twenty-eight votes to one) and that no separate issue arose under Article 10 of the Convention (unanimously) nor under Article 9 in conjunction with Article 14 in so far as the second applicant was convicted of proselytising the Baïramis family and neighbours and the second and third applicants were convicted of proselytising Mrs Zounara (unanimously). Finally, it concluded that there had been no violation of Articles 9 and 14 taken together in so far as the first and second applicants were convicted of proselytising airman Antoniadis and the first and third applicants were convicted of proselytising airmen Kokkalis and Kafkas (unanimously).", "The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment. [4]", "final submissions to the court", "31. In their memorial and at the hearing before the Court, the Government maintained that no violation of the Convention had arisen in the applicants’ case.", "The applicants, however, asked the Court to find violations of Articles 7, 9, 10 and 14 of the Convention and to award them just satisfaction under Article 50.", "as to the law", "i. alleged violation of article 7 of the convention", "32. The applicants contended that the law against proselytism failed to comply with Article 7 of the Convention, which provides:", "“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”", "They argued that the Greek law violated the principle enshrined in Article 7 that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ), since it was impossible to predict whether certain types of behaviour would lead to a prosecution for proselytism. They contended that this deficiency in the law was evident both from the text of section 4(2) (see paragraph 27 above) and the jurisprudence which had arisen from it.", "For example, the use of the words “in particular” implied that the subsequent definition was only one form of proselytism punishable under the statute, and other expressions employed, such as “direct or indirect” and “any kind of inducement or promise of an inducement or moral support or material assistance” were so broad and vague as to embrace almost any form of practical evangelism. The case-law which had grown out of section 4 (see the examples set out in the Court’s Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 13, § 18), showed that no one in Greece could possibly determine in advance whether or not his religious actions would constitute the offence of proselytism.", "33. The Government and the Commission, referring to the above-mentioned Kokkinakis judgment, were both of the opinion that there had been no violation of this provision.", "34. The Court recalls its finding in the above-mentioned Kokkinakis case ( op. cit., p. 22, § 52) that the definition of the offence of proselytism contained in section 4, together with the settled body of national case-law interpreting and applying it, satisfied the conditions of certainty and foreseeability prescribed by Article 7.", "It is not persuaded that the position in Greek law has become any less clear in the period of under five years since that evaluation. Bearing in mind that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (ibid., p. 19, § 40), it sees no reason to reverse its previous decision.", "35. It follows that there has been no violation of Article 7 of the Convention.", "ii. alleged violation of article 9 of the convention", "36. The applicants claimed that their prosecution, conviction and punishment for proselytism amounted to violations of Article 9 of the Convention, which states:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "The Government denied that there had been any such breach. The Commission found that there had been no violation with regard to the measures taken against the applicants for the proselytising of the airmen, although it found that Article 9 had been violated in so far as the proselytising of civilians was concerned (see paragraph 31 above).", "37. The Court must consider whether the applicants’ Article 9 rights were interfered with and, if so, whether such interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” within the meaning of Article 9 § 2.", "A. Interference", "38. The Court considers, and indeed it was not disputed by those appearing before it, that the prosecution, conviction and punishment of the applicants for offences of proselytism amounted to interferences with the exercise of their rights to “freedom … to manifest [their] religion or belief” (see the Kokkinakis judgment cited at paragraph 32 above, p.18, § 36).", "B. “Prescribed by law”", "39. The applicants, for the same reasons they had advanced in support of a finding of violation of Article 7 (see paragraph 32 above), contended that the measures taken against them were not “prescribed by law”, as required by Article 9 § 2.", "The Government and the Commission were of the contrary opinion, again relying on the Court’s Kokkinakis judgment.", "40. The Court recalls that the expression “prescribed by law” in Article 9 § 2 requires, inter alia, that the law in question must be both adequately accessible to the individual and formulated with sufficient precision to enable him to regulate his conduct (see, mutatis mutandis, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49).", "41. It refers to its finding in the above-mentioned Kokkinakis case that the measures taken against that applicant under section 4 were “prescribed by law” (op. cit. , pp. 19–20, §§ 40–41). As the Court has already concluded in relation to Article 7 (see paragraphs 34–35 above), it is not satisfied that the position in Greek law has changed subsequently or that it should depart from its earlier assessment for any other reason.", "42. In conclusion, the measures in question were “prescribed by law” within the meaning of Article 9 § 2.", "C. Legitimate aim", "43. The Government, with whom the Commission agreed, reasoned that the relevant action was taken against the applicants with the aim of protecting the rights and freedoms of others and also, as far as the measures taken following the proselytising of the airmen were concerned, with the aim of preventing disorder in the armed forces and thus protecting public safety and order.", "The applicants made no particular submission in this connection.", "44. Having regard to the circumstances of the case and, particularly, the terms of the national courts’ decisions, the Court considers that the impugned measures essentially pursued the legitimate aim of protecting the rights and freedoms of others (see also the above-mentioned Kokkinakis judgment, p. 20, § 44).", "D. “Necessary in a democratic society”", "45. The Court emphasises at the outset that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion”, including the right to try to convince one’s neighbour, for example through “teaching” (ibid. , p. 17, § 31).", "Article 9 does not, however, protect every act motivated or inspired by a religion or belief. It does not, for example, protect improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a Church (ibid ., p. 21, § 48).", "46. The Court’s task is to determine whether the measures taken against the applicants were justified in principle and proportionate. In order to do this, it must weigh the requirements of the protection of the rights and liberties of others against the conduct of the applicants (ibid. , p. 21, § 47). Since different factors come into the balance in relation to the proselytising of the airmen and that of the civilians, it will assess the two matters separately.", "1. The proselytising of the airmen", "47. The Government contended that the applicants had abused the influence they enjoyed as air force officers and had committed the acts in question in a systematic and repetitive manner. The measures taken against them were justified by the need to protect the prestige and effective operation of the armed forces and to protect individual soldiers from ideological coercion.", "48. The applicants submitted that the practice of evangelism within a superior/subordinate relationship could not without more be equated to an abuse of trust. They emphasised that the airmen were adults, able to die for their country, and that there was no evidence that the applicants had used their positions to coerce or override the wills of their subordinates. To interpret Article 9 so as to restrict evangelism to “equals” would be a severe limitation of religious freedom, both within the armed forces and in other contexts.", "49. The Commission found that the interference could be justified as ensuring that the three airmen’s religious beliefs were respected, in view in particular of the special character of the relationship between a superior and a subordinate in the armed forces, which rendered the subordinate more susceptible to influence in a variety of matters including religious beliefs.", "50. The Court observes that it is well established that the Convention applies in principle to members of the armed forces as well as to civilians. Nevertheless, when interpreting and applying its rules in cases such as the present, it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 23, § 54, and, mutatis mutandis, the Grigoriades v. Greece judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2589–90, § 45).", "51. In this respect, the Court notes that the hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power. It must be emphasised that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within this category. Nonetheless, where the circumstances so require, States may be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces.", "52. The Court refers to the evidence adduced in the domestic proceedings (see paragraphs 8–10 above).", "It notes that airmen Antoniadis and Kokkalis testified that the applicants approached them on a number of occasions in order to persuade them to convert and to visit the Pentecostal Church. Mr Antoniadis stated that he felt obliged to take part in the discussions because the applicants were his superior officers, and Mr Kokkalis said that the applicants’ approaches bothered him. As the Commission found, there is no evidence that the applicants used threats or inducements. Nonetheless, it appears that they were persistent in their advances and that these two airmen felt themselves constrained and subject to a certain degree of pressure owing to the applicants’ status as officers, even if this pressure was not consciously applied.", "53. The Court notes that, contrary to the evidence given by his father at first instance, airman Kafkas testified before the Courts-Martial Appeal Court that the applicants did not apply any pressure to him to become a member of the Pentecostal Church and that he himself initiated the religious discussions that took place between them (see paragraph 10 above). However, the Appeal Court, having had the opportunity to assess the evidence, including Mr Kafkas’s demeanour and credibility, upheld the first-instance court’s decision that the first and third applicants had unlawfully taken advantage of the influence they had over Mr Kafkas due to their position and rank (see paragraphs 15, 18 and 22 above). The Court, considering that the domestic courts were better placed than itself to determine the facts of the case, and taking into account the matters referred to in paragraph 51 above, is of the view that Mr Kafkas, like the other two airmen, must have felt to a certain extent constrained, perhaps obliged to enter into religious discussions with the applicants, and possibly even to convert to the Pentecostal faith.", "54. In view of the above, the Court considers that the Greek authorities were in principle justified in taking some measures to protect the lower ranking airmen from improper pressure applied to them by the applicants in their desire to promulgate their religious beliefs. It notes that the measures taken were not particularly severe and were more preventative than punitive in nature, since the penalties imposed were not enforceable if the applicants did not reoffend within the following three years (see paragraphs 16, 18, 20 and 24 above). In all the circumstances of the case, it does not find that these measures were disproportionate.", "55. It follows that there has been no violation of Article 9 with regard to the measures taken against the first applicant for the proselytising of airmen Antoniadis, Kokkalis and Kafkas, those taken against the second applicant for the proselytising of airman Antoniadis or those taken against the third applicant for the proselytising of airmen Kokkalis and Kafkas.", "2. The proselytising of the civilians", "56. The Government reminded the Court that under section 4, only improper proselytism is punishable. They contended that the second and third applicants had systematically exploited the family problems and psychological distress suffered by the Baïramis family and Mrs Zounara and had thus applied unlawful pressure. Furthermore, the penalties imposed on them were not particularly onerous.", "57. The Commission, with whom the applicants agreed, considered that the circumstances leading to the conviction of the second and third applicants for proselytising the Baïramis family and Mrs Zounara were similar to those of the Kokkinakis case (cited at paragraph 32 above), in that the “targets” of the proselytism were not military personnel and the domestic courts established the defendants’ guilt by reciting the words of section 4 without adequately explaining in what way the methods employed by the accused had been “improper”. It had not been satisfactorily demonstrated that their convictions on these counts were “necessary in a democratic society”.", "58. The Court recalls that the second applicant was convicted under section 4 for preaching on a single occasion to the Baïramis family and their neighbours, following an incident when he had managed to calm a member of the Baïramis family who was in a delirious state. Together with the third applicant, he was also convicted for the proselytising of Mrs Zounara, whom they had attempted to convert on a number of occasions during a period when she was experiencing marital problems (see paragraphs 11, 12, 17 and 19 above).", "59. The Court finds it of decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen.", "With regard to the Baïramis family and their neighbours, none of the evidence indicates that they felt obliged to listen to the applicant or that his behaviour towards them was improper in any way.", "As for Mrs Zounara, it was not disputed before the domestic courts that she initially sought out the applicants in an attempt to understand the reasons behind her husband’s behaviour. Whilst it is clear that during the period she was in contact with them she was in a state of distress brought on by the breakdown of her marriage, the Court does not find it established that her mental condition was such that she was in need of any special protection from the evangelical activities of the applicants or that they applied improper pressure to her, as was demonstrated by the fact that she was able eventually to take the decision to sever all links with the Pentecostal Church.", "60. For the above reasons, the Court does not consider that the second and third applicants’ convictions on the charges in question were justified in the circumstances of the case.", "61. It follows that there has been a violation of Article 9 with regard to the measures taken against the second applicant for the proselytising of the Baïramis family and their neighbours and those taken against the second and third applicants for the proselytising of Mrs Zounara.", "iii. alleged violation of article 10 of the convention", "62. The applicants claimed that the measures taken against them had also interfered with their rights to freedom of expression, in breach of Article 10 of the Convention, which states, as relevant:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "63. The Commission, with whom the Government agreed, found that no separate issue arose under this provision.", "64. Having regard to its scrutiny of this case in the context of Article 9, the Court also agrees that no separate issue arises in relation to Article 10.", "iv. alleged violation of article 14 of the convention taken together with article 9", "65. The applicants alleged that they had been the victims of discrimination contrary to Article 14 of the Convention, which provides:", "“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .”", "They contended that the law against proselytism was applied only to members of religious minorities in Greece, no follower of the Orthodox Church ever having been convicted of the offence under section 4.", "66. The Government made no particular submission in relation to this complaint.", "67. The Commission found that no separate issue arose under Articles 9 and 14 taken together in relation to the measures directed against the second and third applicants for the proselytising of the civilians. As far as the measures taken against the applicants for the proselytising of the airmen were concerned, since no material was provided to substantiate the complaint under Articles 9 and 14, it reached a finding of no violation.", "68. The Court notes that the applicants alleged in their memorial that the Greek law against proselytism was applied in a discriminatory manner. However, they have not produced any evidence to suggest that an officer in the armed forces who attempted to convert his subordinates to the Orthodox Church in a manner similar to that adopted by the applicants would have been treated any differently. It follows that no violation of Articles 9 and 14 taken together has been established in connection with the proselytising of the airmen.", "69. Having found a violation of Article 9 with regard to the measures taken against the second and third applicants for the proselytising of the Baïramis family and Mrs Zounara, the Court considers that no separate issue arises in that connection under Articles 9 and 14 taken together.", "V. application of article 50 of the convention", "70. The applicants requested just satisfaction under Article 50 of the Convention, which provides:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Non-pecuniary damage", "71. The applicants sought 500,000 drachmas (GRD) each to compensate them for moral and material prejudice. This was the amount that the Court had awarded to Mr Kokkinakis in 1993 (op. cit., p. 23, § 60).", "72. At the hearing before the Court, the Government submitted that, in the event of the Court finding a violation, such finding would in itself constitute sufficient just satisfaction.", "73. On the same occasion, the Commission’s Delegate commented that the fact that the domestic courts had not sought to take the Court’s case-law into account was a particular element to be taken into consideration under Article 50.", "74. The Court observes that it has found violations of the Convention in respect only of the measures taken against the second applicant for the proselytising of the Baïramis family and the second and third applicants for the proselytising of Mrs Zounara (see paragraphs 58–61 above). The first applicant is not, therefore, entitled to any just satisfaction under Article 50.", "Making its assessment on an equitable basis, it awards GRD 500,000 each to Mr Mandalarides and Mr Sarandis.", "B. Costs and expenses", "75. The applicants also requested 11,800 pounds sterling (GBP) to cover the legal costs and expenses of the proceedings before the Commission and Court in Strasbourg.", "76. The Government considered the amount claimed to be excessive and submitted that the sum awarded should not exceed GRD 1,000,000.", "77. The Court again notes in this context that it does not find any violation of the Convention in respect of the first applicant and that it finds in favour of the second and third applicants in connection with only one part of their complaints, namely in relation to the measures taken against them for the proselytising of civilians.", "In the light of the above, it awards to the second and third applicants part of the costs and expenses claimed, in total GBP 6,000, together with any value-added tax which may be payable, less the amount received by way of legal aid from the Council of Europe.", "C. Default interest", "78. According to the information available to the Court, the relevant statutory rates of interest applicable at the date of adoption of the present judgment are 6% per annum in Greece and 8% per annum in the United Kingdom." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The applicants", "9. Mr Fikri Sali Hasan (“the first applicant”) was Chief Mufti of the Bulgarian Muslims from 1992 until the events complained of. Mr Ismail Ahmed Chaush (“the second applicant”) was formerly a teacher at the Islamic Institute in Sofia.", "In his submissions to the Court the second applicant stated that from February 1995 he had also worked on a part-time basis as secretary to the Chief Mufti's Office ( Главно мюфтийство ), the national leadership of the Muslim religious organisation, and editor of Musulmanin, its newspaper. The Government disputed these assertions.", "B. Background to the case", "10. At the end of 1989 a process of democratisation commenced in Bulgaria. Soon thereafter some Muslim believers and activists of the Muslim religion in the country sought to replace the leadership of their religious organisation. They considered that Mr Gendzhev, who was the Chief Mufti at that time, and the members of the Supreme Holy Council ( Висш духовен съвет ) had collaborated with the communist regime. The old leadership, with Mr Gendzhev as Chief Mufti of the Bulgarian Muslims, also had supporters. This situation caused divisions and internal conflict within the Muslim community in Bulgaria.", "11. Following general elections held in Bulgaria in October 1991 a new government, formed by the Union of Democratic Forces (СДС) and the Movement for Rights and Freedoms (ДПС), took office towards the end of 1991.", "On 10 February 1992 the Directorate of Religious Denominations ( Дирекция по вероизповеданията ), a governmental agency attached to the Council of Ministers, declared the election of Mr Gendzhev in 1988 as Chief Mufti of the Bulgarian Muslims null and void and proclaimed his removal from that position. On 21 February 1992 the Directorate registered a three ‑ member Interim Holy Council as a temporary governing body of the Muslims' religious organisation, pending the election of a new permanent leadership by a national conference of all Muslims.", "12. Following these events Mr Gendzhev, who claimed that he remained Chief Mufti of the Bulgarian Muslims, challenged the decision of 10 February 1992 before the Supreme Court. On 28 April 1992 the Supreme Court rejected his appeal. The court found that the decision of the Directorate of Religious Denominations was not subject to judicial appeal. The ensuing petition for review, submitted by Mr Gendzhev against the Supreme Court's decision, was examined by a five-member Chamber of the Supreme Court. On 7 April 1993 the Chamber dismissed the petition. While confirming the rejection of Mr Gendzhev's appeal, the Chamber also discussed the merits of the appeal. It found, inter alia, that the Directorate's decision to declare Mr Gendzhev's election null and void had been within its competence. In so far as the impugned decision had also proclaimed “the removal” of Mr Gendzhev from his position of Chief Mufti, this had been ultra vires. However, it was unnecessary to annul this part of the Directorate's decision as in any event it had no legal consequences.", "13. The National Conference of Muslims, organised by the interim leadership, took place on 19 September 1992. It elected Mr Fikri Sali Hasan (the first applicant) as Chief Mufti of the Bulgarian Muslims and also approved a new Statute of the Religious Organisation of Muslims in Bulgaria ( Устав за духовното устройство и управление на мюсюлманите в България ). On 1 October 1992 the Directorate of Religious Denominations registered the statute and the new leadership in accordance with sections 6 and 16 of the Religious Denominations Act.", "C. Events of 1994 and early 1995", "14. While the leadership dispute between Mr Gendzhev and Mr Hasan continued, the official position of the Directorate of Religious Denominations, throughout 1993 and at least the first half of 1994, remained that the first applicant was the legitimate Chief Mufti of the Bulgarian Muslims.", "15. On 29 July 1994 the Directorate of Religious Denominations wrote a letter to Mr Hasan urging him to organise a national conference of all Muslims to solve certain problems arising from irregularities in the election of local religious leaders. The irregularities in question apparently concerned alleged inconsistencies with the internal statute of the Muslim religious organisation, and not breaches of the law.", "16. On 2 November 1994 the supporters of Mr Gendzhev held a national conference. The conference proclaimed itself the legitimate representative of Muslim believers, elected an alternative leadership and adopted a statute. Mr Gendzhev was elected President of the Supreme Holy Council. After the conference the newly elected leaders applied to the Directorate of Religious Denominations for registration as the legitimate leadership of the Bulgarian Muslims.", "17. On 3 January 1995 the Supreme Holy Council presided over by the first applicant decided to convene a national conference on 28 January 1995.", "18. At the end of 1994, parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party (БСП) obtained a majority in Parliament and formed a new government, which took office in January 1995.", "19. On 16 January 1995 the Directorate of Religious Denominations wrote a letter to the first applicant in his capacity of Chief Mufti urging him to postpone the conference. The letter stated, inter alia :", "“As the Directorate of Religious Denominations was concerned with [the] irregularities [as regards the election of local muftis] as early as the middle of 1994, it repeatedly ... urged the rapid resolution of the problems ... Unfortunately no specific measures were undertaken ... As a result the conflicts in the religious community deepened, and discontent among Muslims increased, leading to the holding of an extraordinary national conference on 2 November 1994. This brought to light a new problem, related to the shortcomings of the statute of the Muslim religious community... [The statute] does not clarify the procedure for convening a national conference ... Issues concerning the participants, and the manner in which they are chosen ..., are not regulated.", "Therefore, for the executive branch of the State it becomes legally impossible to decide whether the national conference is in conformity with the statute [of the Muslim religion] and, accordingly, whether its decisions are valid. These decisions, quite understandably, could be challenged by some of the Muslims in Bulgaria. Any other national conference, except one organised by a joint committee [of the rival leaderships], would raise the same problem. Moreover, the decision of 3 January 1995 of the Supreme Holy Council to hold an extraordinary national conference on 28 January 1995 is signed only by six legitimate members of the Holy Council... [and] ... cannot be regarded as being in conformity with the statute.", "The Directorate of Religious Denominations cannot disregard the findings of the [Chamber of the] Supreme Court in its decision of 7 [April] 1993. It is mentioned therein that the Directorate had acted ultra vires when removing Mr Gendzhev from his position of Chief Mufti and that the decision of the Directorate of 10 February 1992 could not have legal consequences.", "Extremely worried as regards the current situation and deeply concerned over the well-being of the Muslims in Bulgaria, the Directorate of Religious Denominations supports the opinion of the Chief Mufti [the first applicant] that it is not advisable to rush ahead with the holding of an extraordinary conference before overcoming the conflicts in the religious community ...", "Firmly convinced that the disputed questions in the religious community should not be decided by administrative means by the executive branch of the State ... the Directorate appeals to you to show good will and reach a consensus for the holding of a united conference ...”", "20. On 27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national conference until 6 March 1995.", "D. Removal of the first applicant from his position of Chief Mufti", "21. On 22 February 1995 Mr Shivarov, Deputy Prime Minister of Bulgaria, issued Decree R-12, which reads as follows:", "“In accordance with Decree KV-15 of 6 February 1995 of the Council of Ministers read in conjunction with section 6 of the Religious Denominations Act, I approve the statute of the Muslim religion in Bulgaria, based in Sofia.”", "22. The statute of the Muslim religion in Bulgaria mentioned in the decree was apparently the one adopted at the rival national conference, organised by Mr Gendzhev and held on 2 November 1994. Decree KV-15, referred to in Decree R-12, determined that Deputy Prime Minister Shivarov should be in charge of supervising the activity of the Directorate of Religious Denominations.", "23. On 23 February 1995 the Directorate of Religious Denominations of the Council of Ministers issued a decision which stated that, in accordance with sections 6, 9 and 16 of the Religious Denominations Act and Decree R ‑ 12 of the Deputy Prime Minister, it had registered a new leadership of the Bulgarian Muslim community. The leadership thus registered included Mr Gendzhev as President of the Supreme Holy Council and, apparently, those elected at the conference of 2 November 1994.", "24. Neither Decree R-12 nor the decision of the Directorate of Religious Denominations gave any reasons or any explanation regarding the procedure followed. The decisions were not formally served on Mr Hasan, who learned about them from the press.", "25. On 27 February 1995 the newly registered leadership of the Muslim community accompanied by private security guards entered the premises of the Chief Mufti's Office in Sofia, forcibly evicted the staff working there, and occupied the building. The applicants submit that the police, who arrived after the surprise action, immediately stepped in to protect the new occupants of the building. Following the action of 27 February 1995 the new leadership took over all documents and assets belonging to the religious organisation of Bulgarian Muslims in Sofia and, in the months which followed, in various other towns in the country. The Directorate of Religious Denominations allegedly sent letters to the banks where the Muslim religious organisation had its accounts, informing them of the change of leadership. In the following weeks several municipalities, allegedly upon the instructions of the Directorate, registered new regional muftis. Also, the staff of the Chief Mufti's Office and ten Islamic teachers, the second applicant among them, were allegedly dismissed de facto as they were prevented from continuing their work.", "26. On 27 February 1995, immediately after the take-over, the first applicant submitted to the Chief Public Prosecutor's Office ( Главна прокуратура ) a request for assistance, stating that there had been an unlawful mob action and that the persons who had occupied the building of the Chief Mufti's Office were squatters who had to be evicted. By decisions of 8 and 28 March 1995 the prosecuting authorities refused to take action. They found, inter alia, that the new occupants of the building had legal grounds to stay there as they were duly registered by the Directorate of Religious Denominations and represented the religious leadership of the Muslim community in the country.", "E. The appeal to the Supreme Court against Decree R-12", "27. On 23 March 1995, apparently in reply to a request from the first applicant, the Directorate of Religious Denominations sent him, in his capacity as a private person, a letter which stated, inter alia :", "“The Muslim religious community in Bulgaria ... has, in 1888, 1891, 1919, 1949, 1986, 1992 and 1995, repeatedly changed its statute as concerns its organisational structure ..., but never as regards its religious foundation. Decree R-12 of 22 February 1995 ... sanctions an [organisational] change, which the religious community itself wished to undertake ...”", "This letter was apparently the first document originating from the competent State bodies which implied clearly that the statute of the Muslim religious community approved by Decree R-12 had replaced the previous statute and that the new registered leadership had replaced the first applicant.", "28. On 18 April 1995 the first applicant, acting on behalf of the Chief Mufti's Office which he headed, lodged an appeal against Decree R-12 with the Supreme Court. He stated that, on the face of it, Decree R-12 stipulated nothing more than the registration of a new religious organisation. However, from the decisions and the letter of the Directorate of Religious Denominations which had followed, it had become clear that what had taken place was the replacement of the statute and the leadership of an existing religious denomination. Furthermore, it transpired that the motivation behind this act had been the understanding that the Muslim religion in Bulgaria could have only one leadership and one statute. The State did not have the right to impose such a view on Muslims, multiple religious organisations of one and the same religion being normal in other countries, as in Bulgaria. Therefore the Council of Ministers had acted beyond its powers. The resulting interference in the internal disputes of the Muslim religious community was unlawful. At the oral hearing held by the Supreme Court the first applicant also stated that there had been an unlawful interference with Muslims' religious liberties, as enshrined in the Constitution.", "29. The first applicant also submitted that the conference of 2 November 1994 had been organised by people outside the Muslim religious organisation over which he presided. Accordingly, they could register their own religious organisation but could not claim to replace the leadership of another. The second applicant asked the Supreme Court either to declare Decree R-12 null and void as being against the law, or to declare that it constituted the registration of a new religious community, the existing Muslim organisation being unaffected.", "30. On 27 July 1995 the Supreme Court dismissed the appeal. The court stated that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision as to whether or not to register the statute of a given religion. The Supreme Court's jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with. In that respect Decree R-12 was lawful. As regards the request for interpretation of Decree R-12, it was not open to the Supreme Court, in the framework of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations.", "F. The national conference of 6 March 1995 and the appeal to the Supreme Court against the Council of Ministers' refusal to register its decisions", "31. The national conference of Muslims in Bulgaria organised by Mr Hasan took place as planned on 6 March 1995. The minutes of the conference establish that it was attended by 1,553 persons, of whom 1,188 were official delegates with voting rights. These were representatives of eleven local chapters and of the central leadership. The conference adopted some amendments of the statute of the Muslim community and elected its leadership. The first applicant was re-elected Chief Mufti.", "32. On 5 June 1995 the first applicant, acting as Chief Mufti, submitted a petition to the Council of Ministers requesting the registration of the new statute and leadership of Muslims in Bulgaria, as adopted by the conference of 6 March 1995. On 6 October 1995 he repeated the request. However, there was no response from the Council of Ministers.", "33. On an unspecified date the first applicant appealed to the Supreme Court against the tacit refusal of the Council of Ministers to register the decisions of the March 1995 conference.", "34. On 14 October 1996 the Supreme Court delivered its judgment. It noted that in 1992 the Chief Mufti's Office as represented by Mr Hasan had been duly registered as a religious denomination under section 6 of the Religious Denominations Act and had thus obtained legal personality of which it had not been subsequently deprived. Therefore the Council of Ministers was under an obligation, pursuant to sections 6 and 16 of the Act, to examine a request for registration of a new statute or of changes in the leadership in the existing religious denomination. Accordingly, the Supreme Court ruled that the tacit refusal of the Council of Ministers had been unlawful and ordered the transmission of the file to the Council of Ministers, which was required to examine it.", "35. On 19 November 1996 Deputy Prime Minister Shivarov refused to register the 1995 statute and leadership of the Chief Mufti's Office as represented by Mr Hasan. He sent him a letter stating, inter alia, that the Council of Ministers had already registered a leadership of the Muslim community in Bulgaria, which was that elected by the November 1994 conference with Mr Gendzhev as President of the Supreme Holy Council. The Deputy Prime Minister concluded that the first applicant's request “[could not] be granted as it [was] clearly contrary to the provisions of the Religious Denominations Act”.", "36. On 5 December 1996 the first applicant, acting as Chief Mufti, appealed to the Supreme Court against the refusal of the Deputy Prime Minister.", "37. On 13 March 1997 the Supreme Court quashed that refusal on the ground that it was unlawful and contrary to Article 13 of the Constitution. The refusal constituted “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration.", "38. Despite these Supreme Court judgments the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan.", "G. The 1997 unification conference and subsequent events", "39. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. At the general elections which followed in April 1997 the Union of Democratic Forces obtained a majority in Parliament and formed a new government.", "40. On 24 March 1997 the first applicant again requested the Council of Ministers to register the 1995 statute and leadership. There followed informal contacts between the Muslim leadership of Mr Hasan and representatives of the government. The applicants were allegedly told that the government would only agree to register a new leadership of the Muslims if it was elected at a unification conference.", "41. The Directorate of Religious Denominations urged the two rival leaderships of Mr Hasan and of Mr Gendzhev to negotiate a solution. On 12 September 1997 the leadership headed by Mr Hasan decided to accept the holding of a unification conference under certain conditions. A five-member contact group was appointed to hold negotiations. On 30 September 1997 representatives of the two rival leaderships signed an agreement to convene a national conference of all Muslim believers on 23 October 1997. The agreement, which was also signed by Deputy Prime Minister Metodiev and the Director of Religious Denominations, provided, inter alia, that the parties would not obstruct the unification process, failing which the Directorate would take appropriate administrative measures. In addition, the leadership of Mr Gendzhev undertook not to dispose of any Muslim property or assets before the conference.", "42. The Directorate of Religious Denominations took an active part in organising the national conference. The mayors in many localities distributed to the local chapters forms bearing the seal of the Directorate. These forms were filled out at the meetings of the local chapters which elected delegates to the national conference and were certified by the mayors' signatures.", "43. On 23 October 1997, 1,384 delegates attended the conference. Only delegates whose election had been certified by the mayors were allowed to participate. The conference adopted a new statute of the Muslim denomination in Bulgaria and elected a new leadership comprising members of the leadership of Mr Hasan and others. Mr Hasan apparently attended the conference and approved of the new leadership. Six leaders of the group led by him were elected to the new Supreme Holy Council. Mr Hasan was not among them. On 28 October 1997 the government registered the newly elected leadership.", "44. Although the religious community which accepted Mr Gendzhev's authority was involved in the unification process, Mr Gendzhev himself and some of his supporters did not sign the agreement of 30 September 1997 and did not attend the conference, considering that it was manipulated by the State. The conference voted a resolution authorising the new leadership to conduct an audit and seek the prosecution of Mr Gendzhev for alleged unlawful transactions.", "45. Mr Gendzhev, who claimed that he remained the Chief Mufti, appealed to the Supreme Administrative Court ( Върховен административен съд ) against the government's decision to register the new leadership. By a judgment of 16 July 1998 the Supreme Administrative Court rejected the appeal as being inadmissible. It found that the Chief Mufti's Office of Mr Gendzhev had no locus standi to lodge an appeal as it had never been validly registered. Decree R-12 of 22 February 1995 had been signed by Deputy Prime Minister Shivarov, who had not been duly authorised by the Council of Ministers. Decree KV-15 did not contain an express authorisation for the Deputy Prime Minister to approve the statutes of religious denominations. As a result the Chief Mufti's Office of Mr Gendzhev had never legally existed and all its acts between 1995 and 1997 were null and void." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "46. The relevant provisions of the 1991 Constitution read as follows:", "Article 13", "“(1) Religions shall be free.", "(2) Religious institutions shall be separate from the State.", "(3) Eastern Orthodox Christianity shall be considered the traditional religion in the Republic of Bulgaria.", "(4) Religious institutions and communities, and religious beliefs shall not be used for political ends.”", "Article 37", "“(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers.", "(2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.”", "47. The Constitutional Court's judgment no. 5 of 11 June 1992 provides a legally binding interpretation of the above provisions. It states, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules. The State may interfere with the activity of a religious community or institution only in the cases contemplated in Articles 13 § 4 and 37 § 2 of the Constitution. An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution.", "48. The Religious Denominations Act came into force in 1949 and has been amended several times since then. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows.", "Section 6", "“(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose.", "(2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.”", "Section 9", "“(1) Every religious denomination shall have a leadership accountable to the State.", "(2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ...”", "Section 16", "“(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.”", "49. The Act also lays down rules regarding the activities of a religious denomination, imposes requirements as regards its clergy and gives the Directorate of Religious Denominations certain supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable.", "50. The applicants contended that as a consequence of the provisions of section 6 of the Act, and since there is no public register for recognised religious denominations, in practice a religious community can establish its existence as a legal entity only by producing a copy of a letter or a decision to that effect issued by the Directorate of Religious Denominations. The same applies to the leader of a religious denomination when he needs to provide accreditation.", "51. Under Decree no. 125 of the Council of Ministers of 6 December 1990, as amended, the competence of the Directorate of Religious Denominations includes “contacts between the State and religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications.", "52. There are no procedural provisions under Bulgarian law specifically applicable to the examination by the Council of Ministers, or by a deputy prime minister, of a petition for authorisation of a religious denomination. Section 3 of the Administrative Procedure Act ( Закон за административното производство ), which contains a general legal regime on the procedure for the issuing of and appeal against administrative decisions, provides that the Act is not applicable as regards decisions of the Council of Ministers.", "THE LAW", "I. THE gOVERNMENT'S PRELIMINARY OBJECTION", "53. Before the Court the Government maintained that the application should be rejected for failure to exhaust domestic remedies, regard being had to the fact that the domestic judicial appeals had been submitted by the first applicant on behalf of the Chief Mufti's Office, and not in his individual capacity.", "The applicants stated that they had no standing to institute proceedings in their individual capacity. The only possibility was an appeal on behalf of the community. Furthermore, the appeals on behalf of the Chief Mufti's Office had proved to be ineffective. The applicants referred to their complaint under Article 13 of the Convention.", "54. The Court reiterates that objections of the kind now made by the Government should be raised before the admissibility of the application is considered (see, among other authorities, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, p. 31, § 57; the Artico v. Italy judgment of 13 May 1980, Series A no. 37, pp. 13-14, § 27; and Brumărescu v. Romania [GC], no. 28342/95, §§ 52-53, ECHR 1999-VII). However, the Government's objection was first raised on 25 August 1998, after the Commission's decision declaring the application admissible (see paragraph 12 of the Commission's report of 26 October 1999). There is, therefore, estoppel.", "II. alleged violation of ARTICLE 9 OF THE CONVENTION", "55. The applicants complained that the alleged forced replacement of the leadership of the Muslim religious community in Bulgaria in 1995 and the ensuing events up to October 1997 had given rise to a violation of their rights under Article 9 of the Convention. Article 9 reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Applicability of Article 9", "1. Arguments before the Court", "(a) The applicants", "56. The applicants maintained that the right to manifest one's religion in community with others meant that the community should be allowed to organise itself according to its own rules. In their view any interference in the internal life of the organisation was a matter of concern not only to the organisation but also to every person who belonged to the religious community and, in particular, to those directly involved in the religious or organisational leadership.", "The applicants stated that for a religious community the organisational structure was not simply a form of their existence, but had a substantive meaning. The identity of the leaders of the community was crucial, history abounding with examples of religious leaders converting believers or founding new religions. No less important for the individual believer was the way in which the organisation managed its places of worship and its property.", "The applicants were thus of the opinion that the alleged forced removal of the leadership of their religious community concerned their individual rights protected by Article 9 of the Convention, the more so given the first applicant's position of Chief Mufti and the second applicant's involvement in the life of the community.", "(b) The Government", "57. The Government maintained that in the Convention organs' practice an application submitted in terms of Article 9 together with other provisions of the Convention would normally be examined under the other provisions relied on. They therefore concentrated in their memorial on Article 11 of the Convention. In their view not every act motivated by religious belief could constitute a manifestation of religion, within the meaning of Article 9.", "58. The Government further submitted that in Bulgaria freedom of religion was guaranteed by the Constitution. Religious institutions being independent, the State had a duty to maintain a climate of tolerance and mutual respect between them without interfering in their internal organisational life. Thus, the Muslim religion was officially registered under the Religious Denominations Act. Muslim believers attended more than 1,000 mosques in the country. They had several religious schools and a newspaper, and maintained international contacts freely.", "Against that background the Government asserted that the facts relied on by the applicants had no bearing on their right to practise their religion, individually or collectively, in private or in public, to observe religious holidays, or to teach in schools.", "(c) The Commission", "59. The Commission considered that the organisation of a religious community was an important part of religious life and that participation therein is a manifestation of one's religion. The applicants' complaints therefore fell within the ambit of Article 9 of the Convention.", "2. The Court's assessment", "60. The Court recalls that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Serif v. Greece, no. 38178/97, § 49, ECHR 1999-IX, and the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 17-18, §§ 31 and 33).", "While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one's religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 27).", "61. In the present case the parties differ on the question whether or not the events under consideration, which all relate to the organisation and leadership of the Muslim community in Bulgaria, concern the right of the individual applicants to freedom to manifest their religion and, consequently, whether or not Article 9 of the Convention applies. The applicants maintained that their religious liberties were at stake, whereas the Government analysed the complaints mainly from the angle of Article 11 of the Convention.", "62. The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one's religion, protected by Article 9 of the Convention.", "Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual's freedom of religion would become vulnerable.", "63. There is no doubt, in the present case, that the applicants are active members of the religious community. The first applicant was an elected Chief Mufti of the Bulgarian Muslims. The Court need not establish whether the second applicant, who used to work as an Islamic teacher, was also employed as a secretary to the Chief Mufti's Office, it being undisputed that Mr Chaush is a Muslim believer who actively participated in religious life at the relevant time.", "64. It follows that the events complained of concerned both applicants' right to freedom of religion, as enshrined in Article 9 of the Convention. That provision is therefore applicable.", "65. Further, the Court does not consider that the case is better dealt with solely under Article 11 of the Convention, as suggested by the Government. Such an approach would take the applicants' complaints out of their context and disregard their substance.", "The Court finds, therefore, that the applicants' complaints fall to be examined under Article 9 of the Convention. In so far as they touch upon the organisation of the religious community, the Court reiterates that Article 9 must be interpreted in the light of the protection afforded by Article 11 of the Convention.", "B. Compliance with Article 9", "1. Arguments before the Court", "(a) The applicants", "66. The applicants contended that the State authorities had interfered twice with the organisational life of the Muslim community. Firstly, in February 1995, they had replaced the legitimate leadership of the community led by the first applicant and then, in the following years, they had refused recognition of the re-elected leadership of the first applicant.", "In the applicants' view the measures undertaken by the State had profound consequences and amounted to replacement of the whole organisational structure of the Muslim community and a complete destruction of normal community life. All income was frozen, offices were seized by force, control over mosques was transferred, and any use of the communities' documents and property by the leadership of the first applicant was made impossible. Mr Hasan was thus compelled to continue his activities as head of the second largest religious community in Bulgaria “from the street, with zero financial resources”. Moreover, following the registration in February 1995 by the Directorate of Religious Denominations of Mr Gendzhev's leadership, no court, government body or indeed no person would recognise Mr Hasan as a legitimate representative of the Muslim believers.", "67. The applicants further maintained that State interference with the internal affairs of the religious community had not been based on clear legal rules. They considered that the law in Bulgaria, in matters concerning religious communities, did not provide clarity and guarantees against abuse of administrative discretion. In their view the relations between the State and religious communities in Bulgaria were governed not by law, but by politics. Indeed, the replacement of the leadership of the Muslim religious community had curiously coincided with the change of government in Bulgaria.", "The relevant law, which had remained unchanged since the events complained of, provided for a discretionary power of the government to change religious leaderships at will. In the absence of a clear procedure in this respect or a public register of the by-laws and the representation of religious denominations, the system of ad hoc letters, issued by the Directorate of Religious Denominations to confirm the representation of the community to interested third parties and even to courts, created vast opportunities for arbitrary exercise of powers. In the applicant's view the authorities had failed in their duty to enact an adequate legal framework in this respect.", "68. The applicants further claimed that Decree R-12 was in breach of the relevant law as it sanctioned a leadership which had not been elected in accordance with the statute and the by-laws of the Muslim community. These rules provided for a procedure for the election of leaders at a national conference convened by decision of the Supreme Holy Council, the Chief Mufti, and the Control Commission. Having recognised these rules in 1992, the authorities should not have registered leaders elected in breach thereof.", "Furthermore, in the applicants' view the replacement of the leadership had been achieved through arbitrary decrees which gave no reasons and had been issued without the parties concerned even being informed. The refusal of the Council of Ministers to comply with two judgments of the Supreme Court had been another arbitrary interference with the internal life of the community. The prosecuting authorities' refusal to intervene and remedy what the applicants saw as a blatant criminal act, namely the forcible eviction of the first applicant and the staff from the building of the Chief Mufti's Office on 27 February 1995 had also been a clear breach of domestic law.", "69. The applicants further asserted that the interference with their rights under Article 9 of the Convention had no legitimate aim. It could not be argued seriously that the government's purpose was to ensure clarity as to the representation of the Muslim religious community. Its actions at the material time had replaced one leadership of the community with another.", "(b) The Government", "70. The Government submitted that there had not been any interference with the applicants' rights under Article 9 of the Convention. The acts of the Directorate of Religious Denominations were of a declarative nature. They did not give rise to rights and obligations and consequently were not capable of affecting the legal rights of others. According to the Court's case-law a registration requirement in religious matters was not as such incompatible with the Convention.", "71. In the Government's view nothing prevented the applicants from freely participating in the organisation of the Muslim community during the period of time under consideration. There was no evidence that the applicants could not hold meetings or could not be elected to the leadership of the Muslim community. Indeed, on 6 March 1995 they had freely organised a new national conference at which the first applicant had been re-elected Chief Mufti. The fact that there was another national conference, that of 2 November 1994, which elected other leaders, could not be imputed to the State. It had been an expression of the free exercise of the right to freedom of association.", "Therefore, in the Government's view, it was not the State that had replaced the first applicant as Chief Mufti, but the independent will of the Muslim believers. In fact, Mr Hasan did not meet the age and qualification requirements for the position of Chief Mufti, as provided for in the statute of the Muslim religion in Bulgaria.", "72. The Government also submitted that the State had continued to pay subsidies to the Muslim community. The question of who managed these funds had been decided freely by the community. The Government further rejected as unsubstantiated and ill-founded the first applicant's allegation that he could not address the faithful through the media on the occasion of religious holidays, the media being free and independent from the State. In the Government's view all complaints concerning the alleged indirect effects of the registration of another leadership were ill-founded.", "73. In the Government's opinion the applicants were pursuing their own personal career by falsely presenting before the Court the events complained of as involving human rights issues. If their logic was followed, every leader of a religious community who had lost the confidence of the believers could lodge an application. That would create a dangerous precedent. The Government urged the Court to distance itself from such essentially political disputes. They reiterated that the Parliamentary Assembly of the Council of Europe had noted the progress made in Bulgaria in respect of religious freedoms and informed the Court that a new law on religious denominations was being drafted.", "(c) The Commission", "74. The Commission found unanimously that there had been an unlawful State interference with the internal organisation of the Muslim community and the applicants' right to freedom of religion.", "2. The Court's assessment", "(a) Whether there has been an interference", "75. The Court must examine whether there has been State interference with the internal organisation of the Muslim community and, consequently, with the applicants' right to freedom of religion.", "76. The Government's position was entirely based on the assertion that the impugned acts of the Directorate of Religious Denominations could not be regarded as an interference with the internal organisation of the community as they had been of a purely declaratory nature and had constituted nothing more than an administrative registration. The applicants alleged that these acts had had serious legal and practical consequences and had been aimed directly at removing the legitimate leadership of the Muslim community and replacing it by leaders politically associated with the government of the day.", "77. The Court does not deem it necessary to decide in abstracto whether acts of formal registration of religious communities and changes in their leadership constitute an interference with the rights protected by Article 9 of the Convention.", "78. Nevertheless, the Court considers, like the Commission, that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers' freedom to manifest their religion within the meaning of Article 9 of the Convention. It recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership (see Serif, cited above, § 52).", "79. In the present case the Court notes that by virtue of Decree R-12 and the decision of the Directorate of Religious Denominations of 23 February 1995 the executive branch of government in Bulgaria proclaimed changes in the leadership and statute of the Muslim religious community. No reasons were given for this decision. There was no explanation why preference was to be given to the leaders elected at the national conference of 2 November 1994, which was organised by Mr Gendzhev's followers, and not to the first applicant, who had the support of another part of the community, as evidenced by the results of the national conference held on 6 March 1995.", "The Court further observes that in Bulgaria the legitimacy and representation powers of the leadership of a religious denomination are certified by the Directorate of Religious Denominations. The first applicant was thus deprived of his representation powers in law and in practice by virtue of the impugned decisions of February 1995. He was refused assistance by the prosecuting authorities against the forced eviction from the offices of the Chief Mufti precisely on the ground that Decree R-12 proclaimed another person as the Chief Mufti. He was apparently not able to retain control over at least part of the property belonging to the community, although Mr Hasan undoubtedly had the support of a significant proportion of its members. The impugned decisions thus clearly had the effect of putting an end to the first applicant's functions as Chief Mufti, removing the hitherto recognised leadership of the religious community and disallowing its statute and by-laws.", "The resulting situation remained unchanged throughout 1996 and until October 1997 as the authorities repeatedly refused to give effect to the decisions of the national conference organised by the first applicant on 6 March 1995.", "80. It is true that in its judgments of 14 October 1996 and 13 March 1997 the Supreme Court implicitly refused to accept that the registration of a new leadership of the divided religious community had the effect of removing the previously recognised leadership of the rival faction. It therefore found that the Council of Ministers was under an obligation to examine the first applicant's request for registration of a new statute. However, those judgments did not have any practical effect, the Council of Ministers having refused to comply with them.", "81. The Government's argument that nothing prevented the first applicant and those supporting him from organising meetings is not an answer to the applicants' grievances. It cannot be seriously maintained that any State action short of restricting the freedom of assembly could not amount to an interference with the rights protected by Article 9 of the Convention even though it adversely affected the internal life of the religious community.", "82. The Court therefore finds, like the Commission, that Decree R-12, the decision of the Directorate of Religious Denominations of 23 February 1995, and the subsequent refusal of the Council of Ministers to recognise the existence of the organisation led by Mr Hasan were more than acts of routine registration or of correcting past irregularities. Their effect was to favour one faction of the Muslim community, granting it the status of the single official leadership, to the complete exclusion of the hitherto recognised leadership. The acts of the authorities operated, in law and in practice, to deprive the excluded leadership of any possibility of continuing to represent at least part of the Muslim community and of managing its affairs according to the will of that part of the community.", "There was therefore an interference with the internal organisation of the Muslim religious community and with the applicants' right to freedom of religion as protected by Article 9 of the Convention.", "83. Such an interference entails a violation of that provision unless it is prescribed by law and necessary in a democratic society in pursuance of a legitimate aim (see Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 75 and 84, ECHR 2000-VII).", "(b) Whether the interference was justified", "84. The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49; the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).", "For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Rotaru, cited above, § 55).", "The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup, cited above, § 31, and the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, § 68).", "85. The Court notes that in the present case the relevant law does not provide for any substantive criteria on the basis of which the Council of Ministers and the Directorate of Religious Denominations register religious denominations and changes of their leadership in a situation of internal divisions and conflicting claims for legitimacy. Moreover, there are no procedural safeguards, such as adversarial proceedings before an independent body, against arbitrary exercise of the discretion left to the executive.", "Furthermore, Decree R-12 and the decision of the Directorate were never notified to those directly affected. These acts were not reasoned and were unclear to the extent that they did not even mention the first applicant, although they were intended to, and indeed did, remove him from his position as Chief Mufti.", "The Court has already found that these acts and the subsequent refusal of the Council of Ministers to recognise the leadership of Mr Hasan had the effect of arbitrarily favouring one faction of the divided religious community. It is noteworthy in this context that the replacement of the community's leadership in 1995, as well as in 1992 and 1997, occurred shortly after a change of government.", "86. The Court finds, therefore, that the interference with the internal organisation of the Muslim community and the applicants' freedom of religion was not “prescribed by law” in that it was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability.", "87. The Court further agrees with the Commission that the repeated refusal of the Council of Ministers to comply with the judgments of the Supreme Court of 1996 and 1997 was a clearly unlawful act of particular gravity. The rule of law, one of the fundamental principles of a democratic society, is inherent in all Articles of the Convention and entails a duty on the part of the State and any public authority to comply with judicial orders or decisions against it (see the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, pp. 510-11, §§ 40-41, and Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).", "88. In view of these findings the Court deems it unnecessary to continue the examination of the applicants' complaints in respect of the “legitimate aim” and “necessary in a democratic society” requirements. Such an examination can only be undertaken if the aim of the interference is clearly defined in domestic law.", "89. There has, therefore, been a violation of Article 9 of the Convention.", "III. alleged violation of ARTICLE 11 OF THE CONVENTION", "90. The applicants complained that the State interference with the internal organisation of the Muslim religious community also violated their rights under Article 11 of the Convention. The Government denied that the Muslim community was an “association” and maintained that in any event there had not been any State interference with rights protected by that Article. The Commission considered that it was not necessary to examine the applicants' complaints under Article 11 of the Convention separately.", "91. The Court, like the Commission, considers that no separate issue arises under Article 11 of the Convention. It has already dealt with the complaint concerning State interference with the internal organisation of the Muslim religious community under Article 9 of the Convention, interpreted in the light of Article 11 (see paragraphs 62 and 65 above).", "IV. alleged violation of ARTICLE 13 OF THE CONVENTION", "92. The applicants complained that they did not have an effective remedy against the interference with their right to freedom of religion. They relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "1. Arguments before the Court", "93. The applicants submitted, inter alia, that the procedure before the Supreme Court, which ended with a judgment of 27 July 1995, was not an effective remedy. Although the Supreme Court could have granted appropriate relief by quashing Decree R-12, it had chosen not to deal with the applicants' arguments on the merits. This had been the consequence of what the applicants described as “the doctrine of full discretion”. In the applicants' submission the Bulgarian Supreme Court had repeatedly adhered to the position that in numerous areas the executive enjoyed full discretion which was not subject to judicial review.", "94. The Government replied that the applicants had not instituted any proceedings in their capacity as individuals. In these circumstances they could not claim in abstracto that the law did not guarantee effective remedies.", "In the Government's view the applicants could have requested the institution of criminal proceedings under Articles 164 and 165 of the Criminal Code, which concern hate speech and impeding the free manifestation of religion through force or duress.", "95. The Commission considered that the applicants did not have an effective remedy and that there had been a violation of Article 13 of the Convention.", "2. The Court's assessment", "96. The Court recalls that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as “arguable” in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations under Article 13. The remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV).", "97. In the present case the Court has found that the applicants' rights under Article 9 of the Convention were infringed. They therefore had an arguable claim within the meaning of the Court's case-law.", "98. The Court further considers that the scope of the obligation under Article 13 varies depending on the nature of the Convention right relied on. Like the Commission, it takes the view that in the context of the present case Article 13 cannot be seen as requiring a possibility for every believer, such as the second applicant, to institute in his individual capacity formal proceedings challenging a decision concerning the registration of his religious community's leadership. Individual believers' interests in this respect can be safeguarded by their turning to their leaders and supporting any legal action which the latter may initiate.", "99. The Court thus finds that in such a case the State's obligation under Article 13 may well be discharged by the provision of remedies which are only accessible to representatives of the religious community aggrieved by a State interference with its internal organisation. In the present case the first applicant, Mr Hasan, was the leader of the faction of the Muslim organisation which was replaced through the State decisions complained of. The Court will therefore examine whether effective remedies existed for the first applicant in his capacity as religious leader.", "100. The Court observes that Mr Hasan, acting as Chief Mufti, attempted to obtain a remedy against the interference with the internal organisation of the religious community by challenging Decree R-12 before the Supreme Court. The Supreme Court did not question Mr Hasan's locus standi and accepted the case for examination. A representative of the religious community was thus provided access to a judicial remedy.", "However, the Supreme Court refused to study the substantive issues, considering that the Council of Ministers enjoyed full discretion whether or not to register the statute and leadership of a religious denomination, and only ruled on the formal question whether Decree R-12 was issued by the competent body.", "The appeal to the Supreme Court against Decree R-12 was not, therefore, an effective remedy.", "101. The other two appeals to the Supreme Court, which were submitted by the first applicant against the refusal of the Council of Ministers to register the results of the national conference of 6 March 1995, were not effective remedies either. Although the Supreme Court upheld these appeals, the Council of Ministers refused to comply with its judgments.", "102. The Government suggested that the applicants could have requested the institution of criminal proceedings against persons who might have impeded the exercise of their freedom of religion.", "The Court observes, however, that the first applicant did in fact turn to the prosecuting authorities for assistance, but to no avail (see paragraph 26 above).", "Furthermore, the Government have not indicated how criminal proceedings, if instituted, could have led to an examination of the substance of the applicants' complaints, which concern decisions issued by a Deputy Prime Minister and the Directorate of Religious Denominations and found by the Supreme Court, in its judgment of 27 July 1995, to have been formally lawful. It is unclear how such proceedings could have remedied the situation complained of.", "103. The Government have not indicated any other remedy which could be used by the applicants or other representatives of the religious community.", "104. The Court finds, therefore, that the leadership of the faction led by Mr Hasan were unable to mount an effective challenge to the unlawful State interference in the internal affairs of the religious community and to assert their right to organisational autonomy, as protected by Article 9 of the Convention.", "It follows that neither applicant had an effective remedy in respect of the violation of Article 9. There has, therefore, been a violation of Article 13 of the Convention.", "V. alleged violation of ARTICLE 6 OF THE CONVENTION", "105. The applicants complained that they did not have access to a court for the determination of certain civil rights. In their view Decree R-12 was decisive for some of their civil rights. These were the first applicant's right, in his capacity of Chief Mufti, to manage the religious affairs of the community, to administer its funds and property, and his right to remuneration for his services as Chief Mufti, and the second applicant's right to continue his job of an Islamic teacher, from which he was allegedly de facto dismissed. The applicants asserted that the determination of their civil rights without them having been parties to any proceedings, and without the Supreme Court having examined in substance the challenge against Decree R-12, was contrary to Article 6 of the Convention.", "106. The Government submitted that the misfortunes in the applicants' careers were not the consequence of the impugned decisions. The applicants had not been parties to the proceedings before the Supreme Court against Decree R-12. Furthermore, if the second applicant had had an employment contract, he could have challenged its termination before the courts.", "107. The Commission considered that the applicants' complaints under Article 6 were unsubstantiated.", "108. The Court notes that the applicants have not substantiated the legal basis and the content of their alleged civil rights. Furthermore, they have not shown that there existed any obstacles preventing them from bringing civil actions before the courts in respect of their alleged right to remuneration.", "The Court therefore finds that there has been no violation of Article 6 of the Convention.", "VI. alleged violation of ARTICLE 1 of protocol No. 1", "109. The Court notes that the applicants did not reiterate their complaints made before the Commission under Article 1 of Protocol No. 1.", "In those circumstances the Court sees no reason to deal with them of its own motion.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "110. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "111. The first applicant claimed 9,240 new levs (BGN) in respect of lost salary for the period between his removal from the position of Chief Mufti in February 1995 and November 1997, when a Chief Mufti elected at a unification conference took office.", "He also claimed costs for maintaining his activities as Chief Mufti between February 1995 and November 1997 (rent for an office and publication of the Musulmanin newspaper) in the amount of 5,500 United States dollars (USD).", "The second applicant claimed BGN 6,060 in lost salary as secretary to the Chief Mufti's Office and editor of the Musulmanin newspaper for the period between February 1995 and November 1997.", "112. The applicants supported their claims by copies of contracts for the rent of two flats, receipts concerning expenses for the publication of the Musulmanin newspaper and for the holding of local meetings of the religious community, and a declaration from a Mr Velev who certified that he knew the applicants, that the second applicant used to perform “secretarial functions” at the Chief Mufti's Office and used to be the editor of the Musulmanin newspaper, and that as far as he remembered the applicants' monthly salaries were the equivalent of BGN 280 for the first applicant and BGN 200 for the second applicant.", "The applicants stated that they were unable to present other documentary proof as all documents concerning their income had remained in the building of the Chief Mufti's Office from where they had been evicted by force on 27 February 1995.", "113. The Government submitted that all claims were unsubstantiated and not supported by sufficient evidence. In particular, the claims in respect of lost salary were without any basis, the applicants not having presented a single payment slip. Furthermore, a number of documents submitted by the applicants were unclear and contained numerous contradictions. The contracts for the rent of two flats mentioned that the flats were to be used by the tenant not only as offices but also as residences. There was no proof that the tenants had actually moved in or had paid the rent. In one contract the figure “1995” had clearly been overwritten to read “1996”.", "The Government further pointed out that the applicants had used arbitrary methods of calculation. In particular, the first applicant claimed that as of February 1995 his salary was 10,000 “old” levs (BGL) and that this amount was the equivalent of BGN 280. However, this calculation had apparently been made on the basis of the exchange rate of the lev with another currency. In fact, in July 1999 BGL 1,000 (“old” levs ) became BGN 1 (“new” lev ). Thus, BGL 10,000 would be the equivalent of BGN 10.", "114. As regards the expenses for the publication of the Musulmanin newspaper, the Government contended that there were contradictions between the initial submissions of the applicants where they had claimed expenses in respect of three issues of the newspaper, and their later submissions, where they mentioned two issues and then four issues. Furthermore, the trade name of the newspaper had been registered by a third person and nothing demonstrated that the applicants could claim expenses in respect of the publication of this newspaper.", "115. In respect of the second applicant the Government submitted a copy of a letter dated 8 May 2000 from the Chief Mufti's Office which certified that Mr Chaush had not worked at the Chief Mufti's Office as claimed by him. He had occasionally taught at the Islamic Institute in Sofia. Furthermore, the Government drew attention to a contradiction between the claims of the second applicant and his declaration of means made on 31 January 2000 and submitted for the purposes of his legal aid request. In the latter document the second applicant had stated that he had variable income, during the school year only, at the average level of BGN 40 to 80 per month.", "116. The Government finally asserted that in February 1995 the first applicant had ceased to be Chief Mufti and could not therefore claim sums in respect of expenses allegedly incurred in his activities as Chief Mufti.", "117. The Court considers that Mr Chaush, the second applicant, has not established a direct causal link between the violation found in the present case and the loss of income or other pecuniary damage allegedly suffered by him. The present case did not concern the circumstances of the second applicant's alleged dismissal from his position of an Islamic teacher, but the interference with his right to freedom of religion resulting from the forced removal of the leadership of the religious community to which he adhered as an active member. His claim for pecuniary damage is therefore dismissed.", "118. In respect of the first applicant, it appears that some of the amounts claimed by him, such as sums for rent of offices and publication of a newspaper, concern the Chief Mufti's Office, which initially submitted an application to the Commission but then withdrew from the proceedings (see paragraph 2 above). Such amounts notwithstanding, the Court considers that the first applicant personally must have suffered some pecuniary damage as a result of his unlawful removal from the position of Chief Mufti and the forced eviction from the building of the Chief Mufti's Office. His claim in this respect, however, is not supported by reliable documentary evidence. As regards the alleged loss of income he has only submitted a declaration by a person who allegedly knew the amount of his salary. The Court finds therefore that the claim for pecuniary damage cannot be granted (see Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 54, ECHR 1999-VIII).", "Nevertheless, the Court accepts that the first applicant's inability to furnish documentary proof may to a certain extent be due to the fact that he was evicted by force from his office in February 1995 and denied access to his documentation. It will therefore take these circumstances into account when deciding on the first applicant's claim for non-pecuniary damage.", "2. Non-pecuniary damage", "119. The first applicant claimed USD 50,000 and the second applicant USD 30,000 under this head.", "The applicants submitted that they had suffered considerable distress over a long period of time. The first applicant had been the head of the second largest religious community in the country. His duty and responsibility vis-à-vis the thousands of believers who had placed their trust in him as their representative had been to ensure the functioning of the legitimate leadership of the religious community. The fact that he could not succeed in this task on account of the unlawful interference of the State with the internal organisation of the Muslim religion caused him acute emotional suffering. This situation was aggravated by the complete disrespect of the authorities for the rule of law between February 1995 and October 1997 when the applicants made numerous attempts to obtain justice, but were simply ignored. Throughout this period of time they continued to work facing enormous difficulties.", "120. The Government invited the Court to reject the applicants' claims and to accept that the finding of a violation would be sufficient just satisfaction.", "The Government stated that the applicants had not shown damage to their reputation or their health and could not therefore claim non-pecuniary damage. Their personal emotional reactions to the events complained of were of a purely subjective nature and could not serve as grounds for a quantified claim.", "In the Government's submission the amounts claimed were in any event excessive and did not find support in the Court's case-law or the practice of the Committee of Ministers. Furthermore, the applicants' claims were exorbitant in view of the standard of living in Bulgaria, where, for the period 1992-98, on average, the minimum monthly salary was the equivalent of about USD 30 and the monthly salary of a judge at regional level about USD 140.", "121. The Court considers that the unlawful State interference with the organisation of the Muslim community has undoubtedly caused distress to the first applicant, who was removed from his position as head of the second largest religious community in Bulgaria. This situation was aggravated by the continuous disrespect for his rights, the lack of any clear legal foundation for the acts of the authorities and their failure to provide an effective remedy.", "The Court considers, however, that the claims are excessive, regard being had to its case-law (see Thlimmenos v. Greece [GC], no. 34369/97, § 70, ECHR 2000-IV; Ceylan v. Turkey [GC], no. 23556/94, § 50, ECHR 1999-IV; and the following judgments cited above: Kokkinakis, p. 23, § 59; Serif, § 61; and Larissis and Others, p. 384, § 74).", "Making its assessment on an equitable basis, the Court awards BGN 10,000 to the first applicant.", "As regards the second applicant the Court holds that the finding of violations of the Convention constitutes sufficient just satisfaction.", "B. Costs and expenses", "122. The applicants claimed USD 3,150 for 105 hours of work (at the rate of USD 30 per hour) by their lawyer on the proceedings before the Commission and the Court, an additional USD 640 for 16 hours of legal work on the hearing before the Court and USD 2,685 for expenses related to the hearing in Strasbourg on 29 May 2000. The latter amount included USD 1,560 in air fares for the two applicants and their lawyer, USD 1,080 in subsistence expenses for three days (on the basis of USD 120 per day per person) and USD 55 paid for French visas.", "The amount claimed by the applicants is equivalent to about BGN 13,500.", "123. The Government pointed out that part of the legal work concerned the initial complaints of the Chief Mufti's Office before the Commission. However, the Chief Mufti's Office withdrew its complaints. The Government further objected to the hourly rate applied by the applicant's lawyer, which was many times superior to the normal rate charged by lawyers in Bulgaria, and submitted that the “time sheet” presented by the lawyer was unreliable. Finally, the amounts claimed in respect of air fares and subsistence expenses were not supported by invoices.", "124. The Court agrees with the Government that a certain reduction should be applied in view of the fact that part of the costs were incurred in relation to the complaints which were disjoined and struck out by the Commission on 17 September 1998 (see paragraph 2 above). The remainder of the claim does not appear excessive in the light of the Court's case-law (see the Lukanov v. Bulgaria judgment of 20 March 1997, Reports 1997-II, p. 546, § 56; the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3305, §§ 176-78; Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; and Velikova v. Bulgaria, no. 41488/98, § 104, ECHR 2000-VI).", "The Court accordingly awards the sum of BGN 10,000 in respect of costs and expenses, together with any value-added tax that may be chargeable, less 18,655.87 French francs received by the applicants by way of legal aid, to be converted into levs at the rate applicable on the date of settlement.", "C. Default interest", "125. According to the information available to the Court, the statutory rate of interest applicable in Bulgaria at the date of adoption of the present judgment is 13.85% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The first applicant, the Metropolitan Church of Bessarabia, is an autonomous Orthodox Church having canonical jurisdiction in the territory of the Republic of Moldova. The other applicants are Moldovan nationals who are members of the eparchic council of the first applicant. They are: Mr Petru Păduraru, Archbishop of Chişinău, Metropolitan of Bessarabia and living in Chişinău; Mr Petru Buburuz, prosyncellus, living in Chişinău; Mr Ioan Eşanu, protosyncellus, living in Călăraşi; Mr Victor Rusu, protopresbyter, living in Lipnic, Ocniţa; Mr Anatol Goncear, a priest living in Zubreşti, Străşeni; Mr Valeriu Cernei, a priest living in Sloveanca, Sângerei; Mr Gheorghe Ioniţă, a priest living in Crasnoarmeisc, Hânceşti; Mr Valeriu Matciac, a priest living in Chişinău; Mr Vlad Cubreacov, member of the Moldovan parliament and of the Parliamentary Assembly of the Council of Europe, and living in Chişinău, Mr Anatol Telembici, living in Chişinău; and Mr Alexandru Magola, Chancellor of the Metropolitan Church of Bessarabia, living in Chişinău.", "A. Creation of the applicant Church and proceedings to secure its official recognition", "1. Creation of the Metropolitan Church of Bessarabia", "10. On 14 September 1992 the applicant natural persons joined together to form the applicant Church – the Metropolitan Church of Bessarabia – a local, autonomous Orthodox Church. According to its articles of association, it took the place, from the canon-law point of view, of the Metropolitan Church of Bessarabia which had existed until 1944.", "In December 1992 it was attached to the patriarchate of Bucharest.", "11. The Metropolitan Church of Bessarabia adopted articles of association which determined, among other matters, the composition and administration of its organs, the training, recruitment and disciplinary supervision of its clergy, the ecclesiastical hierarchy and rules concerning its assets. In the preamble to the articles of association the principles governing the organisation and operation of the applicant Church are defined as follows:", "“The Metropolitan Church of Bessarabia is a local, autonomous Orthodox Church attached to the patriarchate of Bucharest. The traditional ecclesiastical denomination ‘Metropolitan Church of Bessarabia’ is of a historically conventional nature and has no link with current or previous political situations. The Metropolitan Church of Bessarabia has no political activities and will have none in future. It shall carry on its work in the territory of the Republic of Moldova. The Metropolitan Church of Bessarabia shall have the status of an exarchate of the country. According to canon law, communities of the Moldovan diaspora may also become members. No charge shall be made for the accession of individual members and communities living abroad.", "In the context of its activity in the Republic of Moldova, it shall respect the laws of the State and international human rights law. Communities abroad which have adhered for the purposes of canon law to the Metropolitan Church of Bessarabia shall establish relations with the authorities of the States concerned, complying with their legislation and the relevant provisions of international law. The Metropolitan Church of Bessarabia shall cooperate with the authorities of the State in the sphere of culture, education and social assistance. The Metropolitan Church of Bessarabia does not make any claim of an economic or any other kind against other Churches or religious organisations. The Metropolitan Church of Bessarabia maintains ecumenical relations with other Churches and religious movements and considers that fraternal dialogue is the only proper form of relationship between Churches.", "Priests of the Metropolitan Church of Bessarabia working in Moldovan territory shall be Moldovan citizens. When nationals of foreign States are invited to come to Moldova to carry on a religious activity or citizens of the Republic of Moldova are sent abroad for the same purpose, the legislation in force must be complied with.", "Members of the Metropolitan Church of Bessarabia shall be citizens of the Republic of Moldova who have joined together on a voluntary basis to practise their religion in common, in accordance with their own convictions, and on the basis of the precepts of the Gospel, the Apostolic Canons, Orthodox canon law and Holy Tradition.", "Religious services held in all the communities of the Metropolitan Church of Bessarabia shall include special prayers for the authorities and institutions of the State, couched in the following terms: ‘We pray, as always, for our country, the Republic of Moldova, for its leaders and for its army. May God protect them and grant them peaceful and honest lives, spent in obedience to the canons of the Church.’ ”", "12. To date, the Metropolitan Church of Bessarabia has established 117 communities in Moldovan territory, three communities in Ukraine, one in Lithuania, one in Latvia, two in the Russian Federation and one in Estonia. The communities in Latvia and Lithuania have been recognised by the State authorities and have legal personality.", "Nearly one million Moldovan nationals are affiliated to the applicant Church, which has more than 160 clergy.", "The Metropolitan Church of Bessarabia is recognised by all the Orthodox patriarchates with the exception of the patriarchate of Moscow.", "2. Administrative and judicial proceedings to secure official recognition of the applicant Church", "13. Pursuant to the Religious Denominations Act (Law no. 979-XII of 24 March 1992), which requires religious denominations active in Moldovan territory to be recognised by means of a government decision, the applicant Church applied for recognition on 8 October 1992. It received no reply.", "14. It made further applications on 25 January and 8 February 1995. On a date which has not been specified the Religious Affairs Department refused these applications.", "15. On 8 August 1995 the applicant Petru Păduraru, relying on Article 235 of the Code of Civil Procedure (which governs judicial review of administrative acts contrary to recognised rights), brought civil proceedings against the government in the Court of First Instance of the Buiucani district of Chişinău. He asked for the decisions refusing to recognise the applicant Church to be set aside. The court ruled in his favour and, on 12 September 1995, ordered recognition of the Metropolitan Church of Bessarabia.", "16. On 15 September 1995 the Buiucani public prosecutor appealed against the Buiucani Court of First Instance’s decision of 12 September 1995.", "17. On 18 October 1995 the Supreme Court of Justice set aside the decision of 12 September 1995 on the ground that the courts did not have jurisdiction to consider the applicant Church ’s application for recognition.", "18. On 13 March 1996 the applicant Church filed a fresh application for recognition with the government. On 24 May 1996, having received no reply, the applicants brought civil proceedings against the government in the Chişinău Court of First Instance, seeking recognition of the Metropolitan Church of Bessarabia. On 19 July 1996 that court gave judgment against the applicants.", "19. On 20 August 1996 the applicants again filed an application for recognition, which went unanswered.", "20. The applicants appealed to the Chişinău Municipal Court ( Tribunal municipiului ) against the judgment of 19 July 1996. In a judgment of 21 May 1997, against which no appeal lay, the Municipal Court quashed the impugned judgment and allowed the applicants’ claim.", "21. However, following a reform of the Moldovan judicial system, the file was sent to the Moldovan Court of Appeal for trial de novo.", "22. On 4 March 1997 the applicants again applied to the government for recognition. On 4 June 1997, not having received any reply, they referred the matter to the Court of Appeal, seeking recognition of the Metropolitan Church of Bessarabia, relying on their freedom of conscience and freedom of association for the purpose of practising their religion. The resulting action was joined to the case already pending before the Court of Appeal.", "23. In the Court of Appeal the government alleged that the case concerned an ecclesiastical conflict within the Orthodox Church in Moldova (the Metropolitan Church of Moldova), which could be resolved only by the Romanian and Russian Orthodox Churches, and that any recognition of the Metropolitan Church of Bessarabia would provoke conflicts in the Orthodox community.", "24. The Court of Appeal allowed the applicants’ claim in a decision of 19 August 1997. It pointed out, firstly, that Article 31 §§ 1 and 2 of the Moldovan Constitution guaranteed freedom of conscience and that that freedom should be exercised in a spirit of tolerance and respect for others. In addition, the various denominations were free to organise themselves according to their articles of association, subject to compliance with the laws of the Republic. Secondly, it noted that from 8 October 1992 the applicant Church, acting pursuant to sections 14 and 15 of the Religious Denominations Act, had filed with the government a number of applications for recognition, but that no reply had been forthcoming. By a letter of 19 July 1995 the Prime Minister had informed the applicants that the government could not consider the application of the Metropolitan Church of Bessarabia without interfering with the activity of the Metropolitan Church of Moldova. The Court of Appeal further noted that while the applicant Church ’s application for recognition had been ignored, the Metropolitan Church of Moldova had been recognised by the government on 7 February 1993, as an eparchy dependent on the patriarchate of Moscow.", "The Court of Appeal dismissed the government’s argument that recognition of the Metropolitan Church of Moldova made it possible to satisfy the wishes of all Orthodox believers. It pointed out that the term denomination was not to be reserved for catholicism or orthodoxy, but should embrace all faiths and various manifestations of religious feelings by their adherents, in the form of prayers, ritual, religious services or divine worship. It noted that from the point of view of canon law the Metropolitan Church of Moldova was part of the Russian Orthodox Church and therefore dependent on the patriarchate of Moscow, whereas the Metropolitan Church of Bessarabia was attached to the Romanian Orthodox Church and therefore dependent on the patriarchate of Bucharest.", "The Court of Appeal held that the government’s refusal to recognise the applicant Church was contrary to the freedom of religion, as guaranteed not only by the Religious Denominations Act but also by Article 18 of the Universal Declaration of Human Rights, Article 5 of the International Covenant on Economic, Social and Cultural Rights and Article 18 of the International Covenant on Civil and Political Rights, to all of which Moldova was party. Noting that the representative of the government had taken the view that the applicant Church ’s articles of association complied with domestic legislation, the Court of Appeal ordered the government to recognise the Metropolitan Church of Bessarabia and to ratify its articles of association.", "25. The government appealed against the above decision on the ground that the courts did not have jurisdiction to try such a case.", "26. In a judgment of 9 December 1997 the Supreme Court of Justice set aside the decision of 19 August 1997 and dismissed the applicants’ action on the grounds that it was out of time and manifestly ill-founded.", "It noted that, according to Article 238 of the Code of Civil Procedure, one month was allowed for an appeal against a government decision alleged to infringe a recognised right. The time allowed began to run either on the date of the decision announcing the government’s refusal or, if the they did not reply, one month after the lodging of the application. The Supreme Court of Justice noted that the applicants had submitted their application to the government on 4 March 1997 and lodged their appeal on 4 June 1997; it accordingly ruled their action out of time.", "It went on to say that, in any event, the government’s refusal of the applicants’ application had not infringed their freedom of religion as guaranteed by international treaties, and in particular by Article 9 of the European Convention on Human Rights, because they were Orthodox Christians and could manifest their beliefs within the Metropolitan Church of Moldova, which the government had recognised by a decision of 7 February 1993.", "The Supreme Court of Justice considered that the case was simply an administrative dispute within a single Church, which could be settled only by the Metropolitan Church of Moldova, since any interference by the State in the matter might aggravate the situation. It held that the State’s refusal to intervene in this conflict was compatible with Article 9 § 2 of the European Convention on Human Rights.", "Lastly, it noted that the applicants could manifest their beliefs freely, that they had access to Churches and that they had not adduced evidence of any obstacle whatsoever to the practice of their religion.", "27. On 15 March 1999 the applicants again applied to the government for recognition.", "28. By a letter dated 20 July 1999 the Prime Minister refused on the ground that the Metropolitan Church of Bessarabia was not a religious denomination in the legal sense but a schismatic group within the Metropolitan Church of Moldova.", "He informed the applicants that the government would not allow their application until a religious solution to the conflict had been found, following the negotiations in progress between the patriarchates of Russia and Romania.", "29. On 10 January 2000 the applicants lodged a further application for recognition with the government. The Court has not been informed of the outcome of that application.", "3. Recognition of other denominations", "30. Since the adoption of the Religious Denominations Act, the government has recognised a number of denominations, some of which are listed below.", "On 7 February 1993 the government ratified the articles of association of the Metropolitan Church of Moldova, attached to the patriarchate of Moscow. On 28 August 1995 it recognised the Orthodox Eparchy of the Old Christian Liturgy of Chişinău, attached to the Russian Orthodox Church of the Old Liturgy, whose head office was in Moscow.", "On 22 July 1993 the government recognised the “ Seventh-Day Adventist Church ”. On 19 July 1994 it decided to recognise the “ Seventh-Day Adventist Church – Reform Movement”.", "On 9 June 1994 the government ratified the articles of association of the “Federation of Jewish (Religious) Communities” and on 1 September 1997 those of the “Union of Communities of Messianic Jews”.", "4. Reaction of various national authorities", "31. Since it was first set up, the Metropolitan Church of Bessarabia has regularly applied to the Moldovan authorities to explain the reasons for its creation and to seek their support in obtaining official recognition.", "32. The government asked several ministries for their opinion about whether to recognise the applicant Church.", "On 16 October 1992 the Ministry of Culture and Religious Affairs informed the government that it was favourable to the recognition of the Metropolitan Church of Bessarabia.", "On 14 November 1992 the Ministry of Financial Affairs informed the government that it could see no objection to the recognition of the Metropolitan Church of Bessarabia.", "On 8 February 1993 the Ministry of Labour and Social Protection declared that it was favourable to the recognition of the applicant Church.", "In a letter of 8 February 1993 the Ministry of Education emphasised the need for the rapid recognition of the Metropolitan Church of Bessarabia in order to avoid any discrimination against its adherents, while pointing out that its articles of association could be improved upon.", "On 15 February 1993 the Secretariat of State for Privatisation stated that it was favourable to the recognition of the Metropolitan Church of Bessarabia, while proposing certain amendments to its articles of association.", "33. On 11 March 1993, in reply to a letter from the Bishop of Bălţi, writing on behalf of the Metropolitan of Bessarabia, the Moldovan parliament’s Cultural and Religious Affairs Committee noted that the delay in registering the Metropolitan Church of Bessarabia was aggravating the social and political situation in Moldova, even though its actions and articles of association complied with Moldovan legislation. The committee therefore asked the government to recognise the applicant Church.", "34. A memorandum from the Religious Affairs Department, dated 21 November 1994, summarised the situation as follows:", "“For nearly two years an ecclesiastical group known under the name of the Metropolitan Church of Bessarabia has been operating illegally in Moldovan territory. No positive result has been obtained in spite of our sustained efforts to put a stop to its activity (discussions between members of the so-called Church, priests, Mr G.E., Mr I.E. ..., representatives of the State and believers from the localities in which its adherents are active, Mr G.G., Minister of State, and Mr N.A., Deputy Speaker; all the organs of local and national administrative bodies have been informed of the illegal nature of the group, etc.).", "In addition, although priests and adherents of the Church have been forbidden to take part in divine service, for failure to comply with canon law, they have nevertheless continued their illegal activities in the churches and have also been invited to officiate on the occasion of various public activities organised, for example, by the Ministries of Defence and Health. The management of the Bank of Moldova and the National Customs Service have not acted on our request for liquidation of the group’s bank accounts and strict supervision of its priests during their numerous crossings of the border.", "The activity of the so-called Church is not limited to attracting new adherents and propagating the ideas of the Romanian Church. It also has all the means necessary for the work of a Church, it appoints priests, including nationals of other States ..., trains clergy, builds churches and many, many other things.", "It should also be mentioned that the group’s activity (more political than religious) is sustained by forces both from within the country (by certain mayors and their villages, by opposition representatives, and even by some MPs) and from outside (by decision no. 612 of 12 November 1993 the Romanian government granted it 399,400,000 lei to finance its activity ...", "The activity of this group is causing religious and socio-political tension in Moldova and will have unforeseeable repercussions ...", "The Religious Affairs Department notes:", "(a) Within Moldovan territory there is no territorial administrative unit with the name of Bessarabia which might justify setting up a religious group named ‘Metropolitan Church of Bessarabia’. The creation of such a group and recognition of its articles of association would constitute a wrongful anti-State act – a negation of the sovereign and independent State which the Republic of Moldova constitutes.", "(b) The Metropolitan Church of Bessarabia was set up to take the place of the former Eparchy of Bessarabia, founded in 1925 and recognised by Decree no. 1942 promulgated on 4 May 1925 by the King of Romania. Legal recognition of the validity of those acts would imply recognition of their present-day effects within Moldovan territory.", "(c) All Orthodox parishes in Moldovan territory have been registered as constituent parts of the of the Orthodox Church of Moldova (the Metropolitan Church of Moldova), whose articles of association were ratified by the government in its decision no. 719 of 17 November 1993.", "In conclusion:", "1. If nothing is done to put a stop to the activity of the so-called Metropolitan Church of Bessarabia, the result will be destabilisation not just of the Orthodox Church but of the whole of Moldovan society.", "2. Recognition of the Metropolitan Church of Bessarabia (Old Style) and ratification of its articles of association by the government would automatically entail the disappearance of the Metropolitan Church of Moldova.”", "35. On 20 February 1996, following a question in Parliament asked by the applicant Vlad Cubreacov, a Moldovan MP, the Deputy Prime Minister wrote a letter to the Speaker explaining the reasons for the government’s refusal to recognise the Metropolitan Church of Bessarabia. He said that the applicant Church was not a denomination distinct from the Orthodox Church but a schismatic group within the Metropolitan Church of Moldova and that any interference by the State to resolve the conflict would be contrary to the Moldovan Constitution. He pointed out that the political party to which Mr Cubreacov belonged had publicly expressed disapproval of the Supreme Court of Justice’s decision of 9 December 1997, that Mr Cubreacov himself had criticised the government for their refusal to recognise “this phantom metropolitan Church” and that he continued to support it by exerting pressure in any way he could, through statements to the media and approaches to the national authorities and international organisations. The letter ended with the assertion that the “feverish debates” about the Metropolitan Church of Bessarabia were purely political.", "36. On 29 June 1998 the Religious Affairs Department sent the Deputy Prime Minister its opinion on the question of recognition of the Metropolitan Church of Bessarabia.", "It pointed out in particular that not since 1940 had there been an administrative unit in Moldova with the name “ Bessarabia ” and that the Orthodox Church had been recognised on 17 November 1993 under the name of the Metropolitan Church of Moldova, of which the Metropolitan Church of Bessarabia was a “schismatic element”. It accordingly considered that recognition of the applicant Church would represent interference by the State in the affairs of the Metropolitan Church of Moldova, and that this would aggravate the “unhealthy” situation in which the latter Church was placed. It considered that the articles of association of the applicant Church could not be ratified since they merely “reproduce[d] those of the Orthodox Church of another country”.", "37. On 22 June 1998 the Ministry of Justice informed the government that it did not consider the articles of association of the Metropolitan Church of Bessarabia to be contrary to Moldovan legislation.", "38. By letters of 25 June and 6 July 1998 the Ministry of Labour and Social Protection and the Ministry of Financial Affairs again informed the government that they could see no objection to recognition of the Metropolitan Church of Bessarabia.", "39. On 7 July 1998 the Ministry of Education informed the government that it supported recognition of the Metropolitan Church of Bessarabia.", "40. On 15 September 1998 the Cultural and Religious Affairs Committee of the Moldovan parliament sent the government, for information, a copy of a report by the Ministry of Justice of the Russian Federation, which showed that on 1 January 1998 there were at least four different Orthodox Churches in Russia, some of which had their head offices abroad. The Committee expressed the hope that the above-mentioned report would assist the government to resolve certain similar problems, particularly the problem concerning the Metropolitan Church of Bessarabia’s application for recognition.", "41. In a letter sent on 10 January 2000 to the applicant Vlad Cubreacov, the Deputy Attorney-General expressed the view that the government’s refusal to reply to the Metropolitan Church of Bessarabia’s application for recognition was contrary to the freedom of religion and to Articles 6, 11 and 13 of the Convention.", "42. In a decision of 26 September 2001 the government approved the amended version of Article 1 of the Metropolitan Church of Moldova’s articles of association, worded as follows:", "“The Orthodox Church of Moldova is an independent Church and is the successor in law to ... the Metropolitan Church of Bessarabia. While complying with the canons and precepts of the Holy Apostles, Fathers of the Church and the Ecumenical Synods, and the decisions of the Universal Apostolic Church, the Orthodox Church of Moldova operates within the territory of the State of the Republic of Moldova in accordance with the provisions of the legislation in force.”", "43. In a letter received by the Court on 21 September 2001 the President of the Republic of Moldova expressed his concern about the possibility that the applicant Church might be recognised. He said that the issue could be resolved only by negotiation between the Russian and Romanian patriarchates, since it would be in breach of Moldovan legislation if the State authorities were to intervene in the conflict. Moreover, if the authorities were to recognise the Metropolitan Church of Bessarabia, this would have unforeseeable consequences for Moldovan society.", "5. International reactions", "44. In its Opinion no. 188 (1995) to the Committee of Ministers on Moldova ’s application for membership of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted the Republic of Moldova ’s willingness to fulfil the commitments it had entered into when it lodged its application for membership on 20 April 1993.", "These commitments, which had been reaffirmed before the adoption of the above-mentioned opinion, included an undertaking to “confirm complete freedom of worship for all citizens without discrimination” and to “ensure a peaceful solution to the dispute between the Moldovan Orthodox Church and the Bessarabian Orthodox Church”.", "45. In its annual report for 1997 the International Helsinki Federation for Human Rights criticised the Moldovan government’s refusal to recognise the Metropoltitan Church of Bessarabia. The report stated that as a result of this refusal many churches had been transferred to the ownership of the Metropolitan Church of Moldova. It drew attention to allegations that members of the applicant Church ’s clergy had been subjected to physical violence without receiving the slightest protection from the authorities.", "46. In its 1998 report the Federation criticised the Religious Denominations Act, and in particular section 4 thereof, which denied any protection of the freedom of religion to the adherents of religions not recognised by a government decision. It pointed out that this section was a discriminatory instrument which enabled the government to make it difficult for the adherents of the Metropolitan Church of Bessarabia to bring legal proceedings with a view to reclaiming church buildings which belonged to them. In addition, the report mentioned acts of violence and vandalism to which the applicant Church and its members were subjected.", "B. Alleged incidents affecting the Metropolitan Church of Bessarabia and its members", "47. The applicants reported a number of incidents during which members of the clergy or adherents of the applicant Church had allegedly been intimidated or prevented from manifesting their beliefs.", "48. The Government did not dispute that these incidents had taken place.", "1. Incidents in Gârbova ( Ocniţa )", "49. In 1994 the assembly of Christians of the village of Gârbova ( Ocniţa ) decided to join the Metropolitan Church of Bessarabia. The Metropolitan of Bessarabia therefore appointed T.B. as the parish priest.", "50. On 7 January 1994, when T.B. went to the church to celebrate the Christmas mass, the mayor of Gârbova, T.G., forbade him to enter. When the villagers came out of the church to protest, the mayor locked the door and, without further explanation, ordered T.B. to leave the village within twenty-four hours.", "51. The mayor summoned a new assembly of the Christians of the village on 9 January 1994. On that date he informed the villagers that T.B. had been stripped of his post as the village priest because he belonged to the Metropolitan Church of Bessarabia. He introduced a new parish priest who belonged to the Metropolitan Church of Moldova. The assembly rejected the mayor’s proposal.", "52. The mayor called a new assembly of the Christians of the village on 11 January 1994. On that date he introduced to the villagers a third priest, also from the Metropolitan Church of Moldova. He was likewise rejected by the assembly, which expressed its preference for T.B.", "53. In those circumstances, S.M., the chairman of the parish council, was summoned by the mayor and the manager of the local collective farm, who urged him to persuade the villagers to accept T.B.’s removal from office. The chairman of the parish council refused.", "54. On 13 January 1994 S.M. was arrested on his way to church. He was pinned down by five policemen, then thrown into a police van and taken first to the town hall, where he was savagely beaten. He was then taken into police custody at Ocniţa police station, where he was upbraided for showing favour to the Metropolitan Church of Bessarabia. He was not informed of the reasons for his arrest. He was released after being detained for three days.", "55. Following these incidents T.B. left the parish.", "2. Parish of Saint Nicholas, Făleşti", "56. In a letter of 20 May 1994 the vice-president of the provincial council for the province ( raion ) of Făleşti rebuked G.E., priest of the parish of Saint Nicholas and a member of the Metropolitan Church of Bessarabia, for having celebrated the Easter service on 9 May 1994 in the town cemetery, that being an act contrary to the Religious Denominations Act because the Metropolitan Church of Bessarabia was illegal. For the same reason he was forbidden to conduct divine service in future whether inside a church or in the open air. The vice-chairman of the provincial council warned G.E. not to implement a plan he had to invite priests from Romania to attend divine service on 22 May 1994, given that he had not first obtained official authorisation, as required by section 22 of the Religious Denominations Act.", "57. In November 1994 G.E. was fined 90 lei (MDL) for officiating as a priest of an unrecognised Church, the Metropolitan Church of Bessarabia. The Court of First Instance upheld the penalty, but reduced the amount of the fine to MDL 54 on the ground that G.E. did not hold any office within the Church concerned.", "58. On 27 October 1996, before the beginning of divine service in the parish church, several persons, led by a priest of the Metropolitan Church of Moldova, violently assaulted G.E., drawing blood, and asked him to join the Metropolitan Church of Moldova. They also attacked the priest’s wife, tearing her clothes.", "59. G.E. managed to escape into the church, where the service was taking place, but he was pursued by his assailants, who began to fight with the congregation. A policeman sent to the scene managed to persuade the aggressors to leave the church.", "60. On 15 November 1996 the parish meeting published a declaration expressing the parishioners’ indignation about the acts of violence and intimidation to which members of the Metropolitan Church of Bessarabia were subjected, requested the authorities to cease to condone such acts and demanded official recognition for their Church.", "61. On 6 June 1998 the applicant Petru Păduraru, Metropolitan of Bessarabia, received two anonymous telegrams warning him not to go to Făleşti. He did not lodge any complaint about this.", "3. Parish of Saint Alexander, Călăraşi", "62. On 11 July 1994 the applicant Ioan Eşanu, priest of the parish of Saint Alexander, was summoned by the president of the Călăraşi provincial council to a discussion about the Metropolitan Church of Bessarabia.", "That discussion was also attended by the mayor of Călăraşi, the secretary of the provincial council and the parish clerk. The president of the provincial council criticised the applicant for his membership of the applicant Church, which made him a fellow-traveller of those who supported union with Romania. He then gave him one week to produce a certificate attesting to recognition of the Metropolitan Church of Bessarabia, failing which he would have to leave the parish.", "4. Parish of Cania ( Cantemir )", "63. In a letter of 24 November 1994 to the Metropolitan of Bessarabia, V.B., a Romanian national, priest of the parish of Cania, reported that he was under intense pressure from the authorities of the province of Cantemir, who had upbraided him for belonging to the applicant Church.", "64. On 19 January 1995 V.B. was summoned to the police station in Cantemir, where he was served with a government decision cancelling his residence and work permits and ordering him to leave Moldovan territory within seventy-two hours and to hand over the permits concerned to the relevant authorities.", "5. Incidents in Chişinău", "65. On 5 April 1995 Vasile Petrache, priest of the parish of Saint Nicholas, informed the Metropolitan of Bessarabia that the windows of the church, which was affiliated to the Metropolitan Church of Bessarabia, had been broken during incidents that had taken place on the nights of 27 to 28 March and 3 to 4 April 1995.", "66. A similar attack occurred in the night of 13 to 14 May 1995. Vasile Petrache lodged a complaint on each occasion, asking the police to intervene in order to prevent further attacks taking place.", "67. In the night of 3 to 4 September 1996 a grenade was thrown by unknown persons into the house of the Metropolitan of Bessarabia, causing damage. The applicant lodged a complaint about this at the police station in Chişinău.", "68. In autumn 1999, after the death of Vasile Petrache, the Metropolitan of Bessarabia appointed the applicant Petru Buburuz as the parish priest of Saint Nicholas.", "Following that appointment the church of Saint Nicholas was occupied by representatives of the Metropolitan Church of Moldova, who locked it and prevented the adherents of the applicant Church from entering. They also took possession of the parish documents and seal.", "69. On 8 December 1999 the police issued a summons against Petru Buburuz for organising a public meeting in front of Saint Nicholas’s church on 28 November 1999 without first obtaining the authorisation required for public meetings.", "70. On 28 January 2000 Judge S. of the Buiucani Court of First Instance discontinued the proceedings on the ground that the applicant had not organised a meeting but had merely celebrated a mass in his capacity as priest at the request of about a hundred believers who were present. Judge S. also noted that the mass had been celebrated on the square, as the church door had been locked.", "6. Incident in Buiucani ( Chişinău )", "71. In the night of 3 to 4 September 1996 a grenade was thrown into the house of P.G., a member of the clergy of the applicant Church. On 28 September 1996 P.G. was threatened by six persons unknown to him. He immediately lodged a criminal complaint.", "72. In a letter of 22 November 1996 to the President of Moldova, the Minister of the Interior expressed his regret about the slow progress of the investigations into P.G.’s complaints and informed him that on that account disciplinary penalties had been imposed on the police officers responsible for the inquiry.", "7. Parish of Octombrie ( Sângerei )", "73. In a report of 22 June 1998 to the Metropolitan of Bessarabia the parish clerk complained of the actions of one M., a priest of the Metropolitan Church of Moldova, who was trying, with the help of the mayor of Bălţi, to oust P.B., a priest of the applicant Church, and have the village church closed.", "No complaint was lodged with the authorities on this subject.", "8. Incidents in Cucioaia ( Ghiliceni )", "74. On 23 August 1999, according to the applicants, Police Captain R., claiming to be acting on the orders of his superior officer, Lieutenant-Colonel B.D., placed seals on the door of the church of Cucioaia ( Ghiliceni ) and forbade V.R., a priest of the applicant Church, who regularly officiated there, to enter and continue to conduct divine service. After a complaint by the people of the village, the applicant Vlad Cubreacov wrote to the Prime Minister on 26 August 1998 to ask him for an explanation.", "The incident was also reported in the 26 August 1998 issue of the newspaper Flux.", "The Government asserted that following the above complaint the Ministry of the Interior ordered an inquiry. The inquiry showed that it was not a policeman but a member of the Metropolitan Church of Moldova, Archdeacon D.S., who had placed the seals on the church door.", "9. Parish of Badicul Moldovenesc ( Cahul )", "75. On 11 April 1998, at about midnight, the parish priest was woken by persons unknown to him who were trying to force open the presbytery door. He was threatened with death if he did not give up the idea of creating a new parish in Cahul.", "76. On 13 April 1998 he was threatened with death by one I.G., a priest of the Metropolitan Church of Moldova. On the same day he complained to the police.", "10. Parish of Mărinici ( Nisporeni )", "77. After leaving the Metropolitan Church of Moldova in July 1997 to join the applicant Church, the priest of the parish of Mărinici and his family received threats on a number of occasions from various priests of the Metropolitan Church of Moldova. The windows of his house were broken and, on 2 February 1998, he was attacked in the street and beaten by strangers, who told him not to meddle with “those things” anymore.", "78. The parish priest consulted a forensic physician, who issued a certificate detailing the injuries that had been inflicted on him. He subsequently lodged a criminal complaint with the Cecani police.", "79. The Moldovan newspapers regularly reported incidents described as acts of intimidation against the clergy and worshippers of the Metropolitan Church of Bessarabia.", "11. Incident at Floreni", "80. On 6 December 1998 one V.J., a priest of the Metropolitan Church of Moldova, and other persons accompanying him broke open the door of the village church and occupied it. When the parish priest, V.S., a member of the applicant Church, arrived to take the Sunday service he was prevented from entering. The stand-off continued until the villagers belonging to the applicant Church arrived on the scene.", "12. Incident at Leova", "81. In a report sent to the Metropolitan of Bessarabia on 2 February 2001, N.A., priest of the parish of Leova, stated that the church in Leova had suffered acts of vandalism and that he himself and other parishioners had been the target of public acts of intimidation and death threats from one G.C., a priest of the Metropolitan Church of Moldova. Such acts were repeated on a number of further occasions without any protection being offered by the municipal council to parishioners who were members of the applicant Church.", "C. Incidents affecting the assets of the Metropolitan Church of Bessarabia", "1. Incident at Floreni", "82. The Christians of the village of Floreni joined the applicant Church on 12 March 1996 and formed a local community of that Church on 24 March 1996. They also had a chapel built where mass could be celebrated.", "83. On 29 December 1997 the government adopted decision no. 1203, granting the Metropolitan Church of Moldova a right of use in respect of the land on which the chapel built by the Metropolitan Church of Bessarabia was situated. That decision was confirmed by a decree of 9 March 1998 issued by the Floreni municipal council.", "84. Following a request by the Metropolitan Church of Bessarabia for the right to use the land concerned, in view of the fact that its chapel was built on it, the National Land Registry replied to the Church’s adherents in the parish of Floreni that “the local public authorities [were] not able to adopt such a decision since the Metropolitan Church of Bessarabia [had] no recognised legal personality in Moldova”.", "2. Incident relating to a humanitarian gift from the American association “The Church of Jesus Christ of Latter-Day Saints”", "85. On 17 February 2000 the Metropolitan of Bessarabia asked the government Committee for Humanitarian Aid to authorise entry into Moldovan territory of goods to the value of 9,000 United States dollars (USD) sent from the United States, and to classify the goods concerned as humanitarian aid. That request was refused on 25 February 2000.", "86. On 25 February 2000 the applicant Vlad Cubreacov asked the committee to inform him of the reasons for its refusal. He pointed out that the gift (of second-hand clothes), sent by the Church of Jesus Christ of Latter-Day Saints, had been given a transit visa by the Ukrainian authorities, who accepted that it was a humanitarian gift. However, the goods had been held up by the Moldovan customs since 18 February 2000, so that the addressee was obliged to pay USD 150 per day of storage. The applicant repeated his request for the goods to be allowed to enter Moldovan territory as a humanitarian gift.", "87. On 28 February 2000 the Deputy Prime Minister of Moldova authorised the entry of this humanitarian gift into Moldovan territory.", "D. Questions relating to the personal rights of the applicant Church ’s clergy", "88. Vasile Petrache, a priest of the applicant Church, was refused a retirement pension on the ground that he was not a minister of a recognised denomination." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution of 29 July 1994", "89. Article 31 of the Moldovan Constitution, concerning freedom of conscience, provides:", "“1. Freedom of conscience is guaranteed. It must be manifested in a spirit of tolerance and mutual respect.", "2. Freedom of worship is guaranteed. Religious denominations shall organise themselves according to their own articles of association, in compliance with the law.", "3. Any manifestation of discord is forbidden in relations between religious denominations.", "4. Religious denominations shall be autonomous and separated from the State, and shall enjoy the latter’s support, including facilities granted for the purpose of providing religious assistance in the army, hospitals, prisons, mental institutions and orphanages.”", "B. The Religious Denominations Act (Law no. 979-XII of 24 March 1992)", "90. The relevant provisions of the Religious Denominations Act, as published in the Official Gazette no. 3/70 of 1992, read as follows:", "Section 1 – Freedom of conscience", "“The State shall guarantee freedom of conscience and freedom of religion within Moldovan territory. Everyone shall have the right to manifest his belief freely, either alone or in community with others, to propagate his belief and to worship in public or in private, on condition that such worship is not contrary to the Constitution, the present Act or the legislation in force.”", "Section 4 – Intolerance on denominational grounds", "“Intolerance on denominational grounds, manifested by acts which interfere with the free operation of a religious denomination recognised by the State, shall be an offence punished in accordance with the relevant legislation.”", "Section 9 – Religious denominations’ freedom of organisation and operation", "“Denominations shall be free to organise and operate freely on condition that their practices and rites do not contravene the Constitution, the present Act or the legislation in force.", "Where that is not the case, denominations shall not qualify for State recognition.”", "Section 14 – Recognition of religious denominations", "“In order to be able to organise and operate, denominations must be recognised by means of a government decision.", "Where a denomination fails to comply with the conditions laid down by the first paragraph of section 9 of the present Act, recognition may be withdrawn under the same procedure.”", "Section 15 – Articles of association", "“To qualify for recognition, each denomination shall submit to the Government, for scrutiny and approval, the articles of association governing its organisation and operation. The articles of association must contain information on its system of organisation and administration and on the fundamental principles of its beliefs.”", "Section 21 – Associations and foundations", "“Associations and foundations which pursue a religious aim, in whole or in part, shall enjoy religious rights and shall be subject to the obligations arising from the legislation on religious denominations.”", "Section 22 – Clergy, invitation and delegation", "“Leaders of denominations having republican and hierarchical rank ..., and all persons employed by religious denominations, must be Moldovan citizens.", "Denominations which wish to take foreign nationals into their employ to conduct religious activities, or to delegate Moldovan citizens to conduct religious activities abroad, must in every case seek and obtain the agreement of the State authorities.”", "Section 24 – Legal personality", "“Denominations recognised by the State shall be legal persons ...”", "Section 35 – Publishing and liturgical objects", "“Only denominations recognised by the State and registered in accordance with the relevant legislation may", "(a) produce and market objects specific to the denomination concerned;", "(b) found periodicals for the faithful, or publish and market liturgical, theological or ecclesiastical books necessary for practice of the religion concerned;", "(c) lay down scales of charges for pilgrimages and touristic activities in the denomination’s establishments;", "(d) organise, within Moldovan territory or abroad, exhibitions of liturgical objects, including exhibitions of items for sale;", "...", "For the purposes of the present section, the term ‘liturgical objects’ shall mean liturgical vessels, metal and lithographic icons, crosses, crucifixes, church furniture, cross-shaped pendants or medallions framing religious images specific to each denomination, religious objects sold from door to door, etc. The following items shall be assimilated with liturgical objects: religious calendars, religious postcards and leaflets, albums of religious works of art, films and labels portraying places of worship or objects of religious art, other than those which form part of the national cultural heritage, products necessary for worship, such as incense and candles, including decorations for weddings and christenings, material and embroidery for the production of liturgical vestments and other objects necessary for practice of a religion.”", "Section 44 – Recruitment of clergy and employees by religious denominations", "“Bodies affiliated to religious denominations or institutions and enterprises set up by them may engage staff in accordance with labour legislation.”", "Section 45 – Contracts", "“Clergy and employees of religious denominations shall be engaged under a written contract ...”", "Section 46 – Legal status", "“Clergy and employees of religious denominations or the institutions and enterprises set up by them shall have the same legal status as the employees of organisations, institutions and enterprises, so that labour legislation shall be applicable to them.”", "Section 48 – State pensions", "“Whatever pensions are paid by religious denominations, their clergy and employees shall receive State pensions, in accordance with the Moldovan State Pensions Act.”", "C. The Code of Civil Procedure", "91. Article 28/2, as amended by Law no. 942-XIII of 18 July 1996, determines the jurisdiction of the Court of Appeal as follows:", "“1. The Court of Appeal shall examine at first instance applications against organs of the central administration and their officials on account of illegal or ultra vires acts which infringe citizens’ rights.”", "92. Article 37, on the participation of several plaintiffs or defendants in the same trial, provides:", "“The action may be brought by a number of plaintiffs jointly or against more than one defendant. Each of the plaintiffs and defendants shall act independently of the others.", "Co-plaintiffs and co-defendants may designate one of their number to prosecute the action ...”", "93. Article 235, on the right to appeal against unlawful acts of the administration, provides:", "“Any natural or legal person who considers that his rights have been infringed by an administrative act or the unjustified refusal of an administrative organ ... to examine his application concerning a legal right shall be entitled to ask the competent court to set aside the relevant act or uphold the infringed right.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "94. The applicants alleged that the Moldovan authorities’ refusal to recognise the Metropolitan Church of Bessarabia infringed their freedom of religion, since only religions recognised by the government could be practised in Moldova. They asserted in particular that their freedom to manifest their religion in community with others was frustrated by the fact that they were prohibited from gathering together for religious purposes and by the complete absence of judicial protection of the applicant Church ’s assets. They relied on Article 9 of the Convention, which provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments submitted to the Court", "1. The applicants", "95. Citing Manoussakis and Others v. Greece (judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1361, § 37), the applicants alleged that the refusal to recognise the applicant Church infringed their freedom of religion, since the lack of authorisation made it impossible to practise their religion. They submitted that a State could require a prior registration procedure for religious denominations without breaching Article 9 of the Convention provided that registration did not become an impediment to believers’ freedom of religion. But in the present case the refusal to recognise did not have any basis which was acceptable in a democratic society. In particular, the applicants asserted that the applicant Church and its members could not be criticised for any activity which was illegal or contrary to public order.", "96. The applicants submitted that in a democratic society any group of believers who considered themselves to be different from others should be able to form a new Church, and that it was not for the State to determine whether or not there was a real distinction between these different groups or what beliefs should be considered distinct from others.", "Similarly, it was not for the State to favour one Church rather than another by means of recognition, or to censor the name of a Church solely on the ground that it referred to a closed chapter of history.", "Consequently, in the present case, the Moldovan State was not entitled to decide whether the applicant Church was a separate entity or a grouping within another Church.", "2. The Government", "97. The Government accepted that the right to freedom of religion included the freedom to manifest one’s religion through worship and observance, but considered that in the present case the refusal to recognise the applicant Church did not amount to a prohibition of its activities or those of its members. The members of the applicant Church retained their freedom of religion, both as regards their freedom of conscience and as regards the freedom to manifest their beliefs through worship and practice.", "98. The Government further submitted that the applicant Church, as an Orthodox Christian Church, was not a new denomination, since Orthodox Christianity had been recognised in Moldova on 7 February 1993 at the same time as the Metropolitan Church of Moldova. There was absolutely no difference, from the religious point of view, between the applicant Church and the Metropolitan Church of Moldova.", "The creation of the applicant Church had in reality been an attempt to set up a new administrative organ within the Metropolitan Church of Moldova. The State could not interfere in the conflict within the Metropolitan Church of Moldova without infringing its duty of neutrality in religious matters.", "At the hearing on 2 October 2001 the Government submitted that this conflict, apparently an administrative one, concealed a political conflict between Romania and Russia; were it to intervene by recognising the applicant Church, which it considered to be a schismatic group, the consequences were likely to be detrimental to the independence and territorial integrity of the young Republic of Moldova.", "B. The third party", "99. The third party submitted that the present application originated in an administrative conflict within the Metropolitan Church of Moldova. It asserted that the applicant Church had been set up by clergy of the Metropolitan Church of Moldova who, prompted by their personal ambition, had decided to split away from it. As the schismatic activity of the applicant Petru Păduraru had been contrary to the canons of the Russian Orthodox Church, the patriarch of Moscow had forbidden him to conduct divine service. However, in breach of canon law, and without consulting either the patriarchate of Moscow or the Moldovan civil authorities, the patriarchate of Bucharest had decided to recognise the schismatic Church. The conflict thus generated should therefore be resolved only by negotiations between the Romanian and Russian patriarchates.", "100. The third party contended that the applicant Church was based on ethnic criteria and that its recognition by the government would therefore not only constitute interference by the State in religious matters but would also have detrimental consequences for the political and social situation in Moldova and would encourage the existing nationalist tendencies there. In addition, such recognition would prejudice the friendly relations between Moldova and Ukraine.", "C. The Court’s assessment", "101. The Court reiterates at the outset that a Church or ecclesiastical body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000-VII). In the present case the Metropolitan Church of Bessarabia may therefore be considered an applicant for the purposes of Article 34 of the Convention.", "1. Whether there was an interference", "102. The Court must therefore determine whether there was an interference with the applicants’ right to freedom of religion on account of the refusal to recognise the applicant Church.", "103. The Government submitted that the refusal to recognise the applicant Church did not prevent the applicants from holding beliefs or manifesting them within the Orthodox Christian denomination recognised by the State, namely the Metropolitan Church of Moldova.", "104. The applicants asserted that, according to Moldovan law, only religions recognised by the State may be practised and that refusing to recognise the applicant Church therefore amounted to forbidding it to operate, both as a liturgical body and as an association. The applicants who are natural persons may not express their beliefs through worship, since only a denomination recognised by the State can enjoy legal protection.", "105. The Court notes that, according to the Religious Denominations Act, only religions recognised by government decision may be practised.", "In the present case the Court observes that, not being recognised, the applicant Church cannot operate. In particular, its priests may not conduct divine service, its members may not meet to practise their religion and, not having legal personality, it is not entitled to judicial protection of its assets.", "The Court therefore considers that the government’s refusal to recognise the applicant Church, upheld by the Supreme Court of Justice’s decision of 9 December 1997, constituted interference with the right of the applicant Church and the other applicants to freedom of religion, as guaranteed by Article 9 § 1 of the Convention.", "106. In order to determine whether that interference entailed a breach of the Convention, the Court must decide whether it satisfied the requirements of Article 9 § 2, that is whether it was “prescribed by law”, pursued a legitimate aim for the purposes of that provision and was “necessary in a democratic society”.", "2. Whether the interference was prescribed by law", "107. The applicants accepted that the interference in question was prescribed by the Religious Denominations Act. They asserted nevertheless that the procedure laid down by the Act had been misapplied, since the real reason for refusal to register had been political; the Government had neither submitted nor proved that the applicant Church had failed to comply with the laws of the Republic.", "108. The Government made no observation on this point.", "109. The Court refers to its established case-law to the effect that the terms “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measures have some basis in domestic law, but also refer to the quality of the law in question, which must be sufficiently accessible and foreseeable as to its effects, that is formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49; Larissis and Others v. Greece, judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).", "For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI).", "The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup, cited above, § 31, and Groppera Radio AG and Others v. Switzerland, judgment of 28 March 1990, Series A no. 173, p. 26, § 68).", "110. In the present case the Court notes that section 14 of the Law of 24 March 1992 requires religious denominations to be recognised by a government decision and that, according to section 9 of the same law, only denominations whose practices and rites are compatible with the Moldovan Constitution and legislation may be recognised.", "Without giving a categorical answer to the question whether the above-mentioned provisions satisfy the requirements of foreseeability and precision, the Court is prepared to accept that the interference in question was “prescribed by law” before deciding whether it pursued a “legitimate aim” and was “necessary in a democratic society”.", "3. Legitimate aim", "111. At the hearing on 2 October 2001 the Government submitted that the refusal to allow the application for recognition lodged by the applicants was intended to protect public order and public safety. The Moldovan State, whose territory had repeatedly passed in earlier times from Romanian to Russian control and vice versa, had an ethnically and linguistically varied population. That being so, the young Republic of Moldova, which had been independent since 1991, had few strengths it could depend on to ensure its continued existence, but one factor conducive to stability was religion, the majority of the population being Orthodox Christians. Consequently, recognition of the Moldovan Orthodox Church, which was subordinate to the patriarchate of Moscow, had enabled the entire population to come together within that Church. If the applicant Church were to be recognised, that tie was likely to be lost and the Orthodox Christian population dispersed among a number of Churches. Moreover, under cover of the applicant Church, which was subordinate to the patriarchate of Bucharest, political forces were at work, acting hand-in-glove with Romanian interests favourable to reunification between Bessarabia and Romania. Recognition of the applicant Church would therefore revive old Russo-Romanian rivalries within the population, thus endangering social stability and even Moldova ’s territorial integrity.", "112. The applicants denied that the measure complained of had been intended to protect public order and public safety. They alleged that the Government had not shown that the applicant Church had constituted a threat to public order and public safety.", "113. The Court considers that States are entitled to verify whether a movement or association carries on, ostensibly in pursuit of religious aims, activities which are harmful to the population or to public safety (see Manoussakis and Others, cited above, p. 1362, § 40, and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX).", "Having regard to the circumstances of the case, the Court considers that the interference complained of pursued a legitimate aim under Article 9 § 2, namely protection of public order and public safety.", "4. Necessary in a democratic society", "(a) General principles", "114. The Court refers to its settled case-law to the effect that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.", "While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Bearing witness in words and deeds is bound up with the existence of religious convictions. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I). Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27).", "115. The Court has also said that, in a democratic society, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, p. 18, § 33).", "116. However, in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial (see Hasan and Chaush, cited above, § 78). What is at stake here is the preservation of pluralism and the proper functioning of democracy, one of the principle characteristics of which is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, p. 27, § 57). Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX).", "117. The Court further observes that in principle the right to freedom of religion for the purposes of the Convention excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed. State measures favouring a particular leader or specific organs of a divided religious community or seeking to compel the community or part of it to place itself, against its will, under a single leadership, would also constitute an infringement of the freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities remain or are brought under a unified leadership (see Serif, cited above, § 52). Similarly, where the exercise of the right to freedom of religion or of one of its aspects is subject under domestic law to a system of prior authorisation, involvement in the procedure for granting authorisation of a recognised ecclesiastical authority cannot be reconciled with the requirements of paragraph 2 of Article 9 (see, mutatis mutandis, Pentidis and Others v. Greece, judgment of 9 June 1997, Reports 1997-III, p. 995, § 46).", "118. Moreover, since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords (see Hasan and Chaush, cited above, § 62).", "In addition, one of the means of exercising the right to manifest one’s religion, especially for a religious community, in its collective dimension, is the possibility of ensuring judicial protection of the community, its members and its assets, so that Article 9 must be seen not only in the light of Article 11, but also in the light of Article 6 (see, mutatis mutandis, Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports 1998-IV, p. 1614, § 40, and Canea Catholic Church v. Greece, judgment of 16 December 1997, Reports 1997-VIII, pp. 2857 and 2859, §§ 33 and 40-41, and opinion of the Commission, p. 2867, §§ 48-49).", "119. According to its settled case-law, the Court leaves to States party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary, but that goes hand in hand with European supervision of both the relevant legislation and the decisions applying it. The Court’s task is to ascertain whether the measures taken at national level are justified in principle and proportionate.", "In order to determine the scope of the margin of appreciation in the present case the Court must take into account what is at stake, namely the need to maintain true religious pluralism, which is inherent in the concept of a democratic society (see Kokkinakis, cited above, p. 17, § 31). Similarly, a good deal of weight must be given to that need when determining, as paragraph 2 of Article 9 requires, whether the interference corresponds to a “pressing social need” and is “proportionate to the legitimate aim pursued” (see, mutatis mutandis, among many other authorities, Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, p. 1956, § 53). In exercising its supervision, the Court must consider the interference complained of on the basis of the file as a whole (see Kokkinakis, cited above, p. 21, § 47).", "(b) Application of the above principles", "120. The Government submitted that the interference complained of was necessary in a democratic society. In the first place, to recognise the applicant Church the State would have had to give up its position of neutrality in religious matters, and in religious conflicts in particular, which would have been contrary to the Moldovan Constitution and Moldovan public policy. It was therefore in order to discharge its duty of neutrality that the Government had urged the applicant Church to settle its differences with the Metropolitan Church of Moldova first.", "Secondly, the refusal to recognise, in the Government’s submission, was necessary for national security and Moldovan territorial integrity, regard being had to the fact that the applicant Church engaged in political activities, working towards the reunification of Moldova with Romania, with the latter country’s support. In support of their assertions, they mentioned articles in the Romanian press favourable to recognition of the applicant Church by the Moldovan authorities and reunification of Moldova with Romania.", "Such activities endangered not only Moldova ’s integrity but also its peaceful relations with Ukraine, part of whose present territory had been under the canonical jurisdiction of the Metropolitan Church of Bessarabia before 1944.", "The Government further asserted that the applicant Church was supported by openly pro-Romanian Moldovan parties, who denied the specificity of Moldova, even sometimes during debates in Parliament, thus destabilising the Moldovan State. In that connection, they mentioned the Christian Alliance for the Reunification of Romania, set up on 1 January 1993, whose affiliates included a number of associations and a political party represented in the Moldovan parliament, the Christian Democratic Popular Front, which had welcomed the reappearance of the Metropolitan Church of Bessarabia.", "Thirdly, in the Government’s submission, the refusal to recognise the applicant Church had been necessary to preserve social peace and understanding among believers. The aggressive attitude of the applicant Church, which sought to draw other Orthodox Christians to it and to swallow up the other Churches, had led to a number of incidents which, without police intervention, could have caused injury or loss of life.", "Lastly, the Government emphasised that, although they had not recognised the Metropolitan Church of Bessarabia, the Moldovan authorities were acting in a spirit of tolerance and permitted the applicant Church and its members to continue their activities without hindrance.", "121. The applicants submitted that the refusal to recognise the Metropolitan Church of Bessarabia was not necessary in a democratic society. They asserted that all the arguments put forward by the Government were without foundation and unsubstantiated and that they did not correspond to a “pressing social need”. There was nothing in the file to show that the applicants had intended or carried on or sought to carry on activities capable of undermining Moldovan territorial integrity, national security or public order.", "They alleged that the government, by refusing recognition even though it had recognised other Orthodox Churches, had failed to discharge its duty of neutrality for preposterously fanciful reasons.", "Non-recognition had made it impossible for the members of the applicant Church to practise their religion because, under the Religious Denominations Act, the activities of a particular denomination and freedom of association for religious purposes may be exercised only by a denomination recognised by the State. Similarly, the State provided its protection only to recognised denominations and only those denominations could defend their rights in the courts. Consequently, the clergy and members of the applicant Church had not been able to defend themselves against the physical attacks and persecution which they had suffered, and the applicant Church had not been able to protect its assets.", "The applicants denied that the State had tolerated the applicant Church and its members. They alleged, on the contrary, not only that State agents had permitted acts of intimidation which members of the applicant Church had suffered at the hands of other believers but also that in a number of cases State agents had participated in such acts.", "122. The Court will examine in turn the arguments put forward by the Government in justification of the interference and the proportionality of that interference in relation to the aims pursued.", "(i) Arguments put forward in justification of the interference", "(α) Upholding Moldovan law and Moldovan constitutional principles", "123. The Court notes that Article 31 of the Moldovan Constitution guarantees freedom of religion and enunciates the principle of religious denominations’ autonomy vis-à-vis the State, and that the Religious Denominations Act (the Law of 24 March 1992 ) lays down a procedure for the recognition of religious denominations.", "The Government submitted that it was in order to comply with the above principles, including the duty of neutrality as between denominations, that the applicant Church had been refused recognition and instead told first to settle its differences with the already recognised Church from which it wished to split, namely the Metropolitan Church of Moldova.", "The Court notes first of all that the applicant Church lodged a first application for recognition on 8 October 1992 to which no reply was forthcoming, and that it was only later, on 7 February 1993, that the State recognised the Metropolitan Church of Moldova. That being so, the Court finds it difficult, at least for the period preceding recognition of the Metropolitan Church of Moldova, to understand the Government’s argument that the applicant Church was only a schismatic group within the Metropolitan Church of Moldova, which had been recognised.", "In any event, the Court observes that the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group. In the present case, the Court considers that by taking the view that the applicant Church was not a new denomination and by making its recognition depend on the will of an ecclesiastical authority that had been recognised – the Metropolitan Church of Moldova – the State failed to discharge its duty of neutrality and impartiality. Consequently, the Government’s argument that refusing recognition was necessary in order to uphold Moldovan law and the Moldovan Constitution must be rejected.", "(β) Threat to territorial integrity", "124. The Court notes in the first place that in its articles of association, in particular in the preamble thereto, the applicant Church defines itself as an autonomous local Church, operating within Moldovan territory in accordance with the laws of that State, and whose name is a historical one having no link with current or previous political situations. Although its activity is mainly religious, the applicant Church states that it is also prepared to cooperate with the State in the fields of culture, education and social assistance. It further declares that it has no political activity.", "The Court considers those principles to be clear and perfectly legitimate.", "125. At the hearing on 2 October 2001 the Government nevertheless submitted that in reality the applicant Church was engaged in political activities contrary to Moldovan public policy and that, were it to be recognised, such activities would endanger Moldovan territorial integrity.", "The Court reiterates that while it cannot be ruled out that an organisation’s programme might conceal objectives and intentions different from the ones it proclaims, to verify that it does not the Court must compare the content of the programme with the organisation’s actions and the positions it defends (see Sidiropoulos and Others, cited above, p. 1618, § 46). In the present case it notes that there is nothing in the file which warrants the conclusion that the applicant Church carries on activities other than those stated in its articles of association.", "As to the press articles mentioned above, although their content, as described by the Government, reveals ideas favourable to reunification of Moldova with Romania, they cannot be imputed to the applicant Church. Moreover, the Government have not argued that the applicant Church had prompted such articles.", "Similarly, in the absence of any evidence, the Court cannot conclude that the applicant Church is linked to the political activities of the above-mentioned Moldovan organisations (see paragraph 120 above), which are allegedly working towards unification of Moldova with Romania. Furthermore, it notes that the Government have not contended that the activity of these associations and political parties is illegal.", "As for the possibility that the applicant Church, once recognised, might constitute a danger to national security and territorial integrity, the Court considers that this is a mere hypothesis which, in the absence of corroboration, cannot justify a refusal to recognise it.", "(γ) Protection of social peace and understanding among believers", "126. The Court notes that the Government did not dispute that incidents had taken place at meetings of the adherents and members of the clergy of the applicant Church (see paragraphs 47-87 above). In particular, conflicts have occurred when priests belonging to the applicant Church tried to celebrate mass in places of worship to which the adherents and clergy of the Metropolitan Church of Moldova laid claim for their exclusive use, or in places where certain persons were opposed to the presence of the applicant Church on the ground that it was illegal.", "On the other hand, the Court notes that there are certain points of disagreement between the applicants and the Government about what took place during these incidents.", "127. Without expressing an opinion on exactly what took place during the events concerned, the Court notes that the refusal to recognise the applicant Church played a role in the incidents.", "(ii) Proportionality in relation to the aims pursued", "128. The Government submitted that although the authorities had not recognised the applicant Church they acted in a spirit of tolerance and permitted it to continue its activities without hindrance. In particular, its members could meet, pray together and manage assets. As evidence, they cited the numerous activities of the applicant Church.", "129. The Court notes that, under Law no. 979-XII of 24 March 1992, only religions recognised by a government decision may be practised in Moldova. In particular, only a recognised denomination has legal personality (section 24), may produce and sell specific liturgical objects (section 35) and engage clergy and employees (section 44). In addition, associations whose aims are wholly or partly religious are subject to the obligations arising from the legislation on religious denominations (section 21).", "That being so, the Court notes that in the absence of recognition the applicant Church may neither organise itself nor operate. Lacking legal personality, it cannot bring legal proceedings to protect its assets, which are indispensable for worship, while its members cannot meet to carry on religious activities without contravening the legislation on religious denominations.", "As regards the tolerance allegedly shown by the government towards the applicant Church and its members, the Court cannot regard such tolerance as a substitute for recognition, since recognition alone is capable of conferring rights on those concerned.", "The Court further notes that on occasion the applicants have not been able to defend themselves against acts of intimidation, since the authorities have fallen back on the excuse that only legal activities are entitled to legal protection (see paragraphs 56, 57 and 84 above).", "Lastly, it notes that when the authorities recognised other liturgical associations they did not apply the criteria which they used in order to refuse to recognise the applicant Church and that no justification has been put forward by the Government for this difference in treatment.", "130. In conclusion, the Court considers that the refusal to recognise the applicant Church has such consequences for the applicants’ freedom of religion that it cannot be regarded as proportionate to the legitimate aim pursued or, accordingly, as necessary in a democratic society, and that there has been a violation of Article 9 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 9", "131. The applicant Church further submitted that it was the victim of discrimination on account of the authorities’ unjustified refusal to recognise it, whereas they had recognised other Orthodox Churches and had also recognised several different associations which all claimed allegiance to a single religion. It relied on Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "132. According to the Government, as the Orthodox Christian religion had been recognised in the form of the Metropolitan Church of Moldova, there was no justification for recognising in addition the applicant Church, which also claimed allegiance to the Orthodox Christian religion. The applicant Church was not a new denomination but a schismatic group whose beliefs and liturgy did not differ in any way from those of the Metropolitan Church of Moldova. The Government admitted that the Orthodox Eparchy of Chişinău, which was attached to the Russian Orthodox Church of the Old Liturgy, whose head office was in Moscow, had been recognised even though it was not a new denomination, but submitted that the difference in treatment was based on an ethnic criterion, since the adherents and clergy of the Orthodox Eparchy of Chişinău were all of Russian origin.", "133. The applicants submitted that the reason given to the applicant Church for refusing to recognise it was neither reasonable nor objective, because when the authorities recognised other denominations they had not applied the criteria of believers’ ethnic origins or the newness of the denomination. They pointed out, for instance, that the authorities had recognised two Adventist Churches and two Jewish associations, which were not organised along ethnic lines.", "134. The Court considers that the allegations relating to Article 14 of the Convention amount to a repetition of those submitted under Article 9. Accordingly, there is no cause to examine them separately.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "135. The applicants asserted that domestic law did not afford any remedy for the complaints they had submitted to the Court. They alleged a violation of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "136. The Government submitted that in the present case, since the applicants’ complaints were civil in nature, the requirements of Article 13 were absorbed by those of Article 6 of the Convention.", "137. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, § 145). The remedy required by Article 13 must be “effective”, both in practice and in law. However, such a remedy is required only for complaints that can be regarded as “arguable” under the Convention.", "138. The Court observes that the applicants’ complaint that the refusal to recognise the applicant Church had infringed their right to the freedom of religion guaranteed by Article 9 of the Convention was undoubtedly arguable (see paragraph 130 above). The applicants were therefore entitled to an effective domestic remedy within the meaning of Article 13. Accordingly, the Court will examine whether such a remedy was available to the applicant Church and the other applicants.", "139. It notes that in its judgment of 9 December 1997 the Supreme Court of Justice held that the government’s refusal to reply to the application for recognition lodged by the applicant Church had not been unlawful, nor had it been in breach of Article 9 of the Convention, since the applicants could manifest their religion within the Metropolitan Church of Moldova. However, in doing so the Supreme Court of Justice did not reply to the applicants’ main complaints, namely their wish to join together and manifest their religion collectively within a Church distinct from the Metropolitan Church of Moldova and to have the right of access to a court to defend their rights and protect their assets, given that only denominations recognised by the State enjoyed legal protection. Consequently, not being recognised by the State, the Metropolitan Church of Bessarabia had no rights it could assert in the Supreme Court of Justice.", "Accordingly, the appeal to the Supreme Court of Justice based on Article 235 of the Code of Civil Procedure was not effective.", "140. Moreover, the Court notes that although the Religious Denominations Act makes the activity of a religious denomination conditional upon government recognition and the obligation to comply with the laws of the Republic, it does not contain any specific provision governing the recognition procedure and making remedies available in the event of a dispute.", "The Government did not mention any other remedy of which the applicants could have made use.", "Consequently, the Court considers that the applicants were unable to obtain redress from a national authority in respect of their complaint relating to their right to the freedom of religion. There has therefore been a violation of Article 13 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLES 6 AND 11 OF THE CONVENTION", "141. The applicants further complained that the refusal to recognise the applicant Church was preventing it from acquiring legal personality, thus depriving it of its right of access to a court, as guaranteed by Article 6 of the Convention, so that any complaint relating to its rights, and in particular its property rights, could be determined. In addition, they alleged that the refusal to recognise, coupled with the authorities’ stubborn persistence in holding to the view that the applicants could practise their religion within the Metropolitan Church of Moldova, infringed their freedom of association, contrary to Article 11 of the Convention.", "142. Having taken Articles 6 and 11 into account in the context of Article 9 (see paragraphs 118 and 129 above), the Court considers that there is no cause to examine them separately.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "143. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "144. The applicants did not claim any sum in respect of pecuniary damage, but asked for 160,000 French francs (FRF) for non-pecuniary damage.", "145. The Government did not comment on this point.", "146. The Court considers that the violations it has found must undoubtedly have caused the applicants non-pecuniary damage which it assesses, on an equitable basis, at 20,000 euros (EUR).", "B. Costs and expenses", "147. Having received from the Council of Europe FRF 7,937.10 in legal aid for the appearance of the applicant Vlad Cubreacov at the hearing before the Court, the applicants requested only the reimbursement of the lawyers’ fees they had incurred for the proceedings before the Court, namely FRF 8,693.89 for the Moldovan lawyer who had prepared their application and 3,550 pounds sterling for the British counsel who had defended the applicants’ interests in the present proceedings and presented argument at the hearing.", "148. The Government did not comment on this point.", "149. Having regard to the vouchers supplied by the applicants, and ruling on an equitable basis, the Court awards the applicants the sum of EUR 7,025 for costs and expenses, plus any sum which may be chargeable in value-added tax.", "C. Default interest", "150. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 4.26% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are religious communities and individuals. The applicant communities originally existed and operated lawfully in Hungary as Churches registered by the competent court in conformity with Act no. IV of 1990 (“the 1990 Church Act”).", "7. In application no. 70945/11, Magyar Keresztény Mennonita Egyház (Hungarian Christian Mennonite Church [1] ) is a religious community active in Hungary since 1998. Mr J. Izsák-Bács is a Hungarian national who was born in 1959 and lives in Budapest. He is a minister of Magyar Keresztény Mennonita Egyház.", "8. In application no. 23611/12, Evangéliumi Szolnoki Gyülekezet Egyház (Evangelical Szolnok Congregation Church) is a religious community active in Hungary since 1998. Mr P.J. Soós is a Hungarian national who was born in 1954 and lives in Budapest. He is a minister of Evangéliumi Szolnoki Gyülekezet Egyház.", "This applicant community was involved in social activities outsourced by the municipality of Szolnok and had concluded an agreement with the State Treasury on the provision of services for homeless people. In 2011 the Treasury cancelled this agreement and granted the relevant subsidy only until 30 June 2011. As a consequence the applicant had to terminate the corresponding contract with the municipality, but was obliged to continue to perform its social services up to and including July 2011, thereby allegedly sustaining damage in the amount of 691,407 Hungarian forints.", "9. In application no. 26998/12, Budapesti Autonóm Gyülekezet (Budapest Autonomous Congregation) is a religious community active in Hungary since 1998. Mr T. Görbicz is a Hungarian national who was born in 1963 and lives in Budapest. He is a minister of Budapesti Autonóm Gyülekezet.", "10. In application no. 41150/12, Szim Salom Egyház (Sim Shalom Church) is a religious community active in Hungary since 2004. Mr G.G. Guba is a Hungarian national who was born in 1975 and lives in Budapest. He is a member of Szim Salom Egyház.", "11. In application no. 41155/12, Magyar Reform Zsidó Hitközségek Szövetsége Egyház (Alliance of Hungarian Reformed Jewish Communities Church) is a religious community active in Hungary since 2007. Ms L.M. Bruck is a Hungarian national who was born in 1931 and lives in Budapest. She is a member of Magyar Reform Zsidó Hitközségek Szövetsége Egyház.", "12. In application no. 41463/12, the European Union for Progressive Judaism is a religious association with its registered office in London. It acts as an umbrella organisation for progressive Jewish congregations in Europe. Szim Salom Egyház (see application no. 41150/12) and Magyar Reform Zsidó Hitközségek Szövetsége Egyház (see application no. 41155/12) are among its members.", "13. In application no. 54977/12, Magyarországi Evangéliumi Testvérközösség (Hungarian Evangelical Fellowship) is a religious community active in Hungary since 1981.", "14. In application no. 56581/12, Magyarországi Biblia Szól Egyház ( “ The Bible Talks ” Church of Hungary) is a religious community active in Hungary for over twenty years.", "15. In application no. 41553/12, the applicants ( ANKH Az Örök Élet Egyháza (ANKH Church of Eternal Life), Árpád Rendjének Jogalapja Tradícionális Egyház (Traditional Church of the Legal Basis of Árpád ’ s Order), Dharmaling Magyarország Buddhista Egyház (Dharmaling Hungary Buddhist Church), Fény Gyermekei Magyar Esszénus Egyház ( “ Children of Light ” Hungarian Essene Church), Mantra Magyarországi Buddhista Egyháza (Mantra Buddhist Church of Hungary), Szangye Menlai Gedün A Gyógyító Buddha Közössége Egyház (Szangye Menlai Gedun, Community of Healing Buddha Church), Univerzum Egyháza (Church of the Universe), Usui Szellemi Iskola Közösség Egyház (Usui Spiritual School Community Church), Út és Erény Közössége Egyház (Community of Way and Virtue Church)) are religious communities active in Hungary since 1999, 2008, 2005, 2001, 2007, 1992, 1998, 2008 and 2007 respectively.", "16. On 30 December 2011 Parliament enacted Act no. CCVI of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities (“the 2011 Church Act”). It entered into force on 1 January 2012 and was subsequently amended on several occasions, most recently on 1 August and 1 September 2013.", "17. Apart from the recognised Churches listed in the Appendix to the 2011 Church Act (see paragraph 22 below), all other religious communities previously registered as Churches lost their status as Churches but could continue their activities as associations. If intending to continue as Churches, religious communities were required to apply to Parliament for individual recognition as such.", "18. In decision no. 6/2013 (III. 1.), the Constitutional Court found certain provisions of the 2011 Church Act to be unconstitutional and annulled them with retrospective effect.", "Meanwhile, several applicants filed requests to have the minister responsible register them as Churches, but these applications were refused on the ground that – despite the decision of the Constitutional Court – the 2011 Church Act precluded the registrations requested.", "19. After the Constitutional Court ’ s decision, several applicants applied to the National Taxation and Customs Agency seeking to be reissued with the number which is necessary in order to remain entitled to the 1% of income tax which taxpayers may donate to Churches. The National Taxation and Customs Agency suspended the procedure and invited the applicants to initiate a recognition procedure before Parliament. In the applicants ’ submission, this demonstrated further disregard for the Constitutional Court ’ s decision.", "20. Several applicants regained their status as Churches pursuant to the Constitutional Court ’ s decision.", "III. MINUTES OF MEETINGS OF THE PARLIAMENTARY COMMITTEE FOR HUMAN RIGHTS, MINORITY, CIVIL AND RELIGIOUS AFFAIRS", "36. The relevant excerpts from the minutes of the meeting of 10 February 2012 read as follows :", "“CHAIRMAN [Dr T. LUKÁCS (KDNP – Christian Democratic People ’ s Party)]: ... With the Act adopted by Parliament, freedom of religion is fully guaranteed in Hungary both as an individual and as a communal right. I would add that, in a sense, the freedom to exercise religion in community has even been extended, since in the case of legal persons, today as few as ten members, in contrast to the formerly required one hundred, may exercise their communal rights under the law on associations; associations are also entitled to 1% donations and, if they maintain institutions, the State may enter into contracts with them. Thus, under the European model, ‘ Church ’ status has no direct bearing on freedom of religion. When we adopt this amendment, entities with ‘ Church ’ status will include 97% of the persons who claim to be religious – I will be able to give exact numbers when the 2011 census data have been processed. ...", "There are eleven countries in Europe where ‘ Church ’ status is granted by a Ministry or State organ or by Parliament. ... We can support this ‘ Church ’ status in good conscience. ... It does not mean, of course, that from a formal point of view other religious communities do not meet the criteria or that in subsequent procedures further Churches cannot be granted this status. ...", "As has previously been mentioned, it has been a priority concern to grant ‘ Church ’ status to Protestant communities of international importance and to representatives in Hungary of the world religions. ... As I have said, we do not regard this matter as closed once and for all. If in the future someone can prove an important social role, membership numbers or international significance and requests ‘ Church ’ status, we shall proceed according to the procedure prescribed by law. ...", "The number of entities which, up until 20 December, applied to the Ministry of Public Administration and Justice to maintain their ‘ Church ’ status was eighty-four or eighty-five. ... Of those, thirty-four undoubtedly meet the twenty years ’ registration criterion or have submitted certification from their international organisation demonstrating compliance with the hundred years ’ criterion. From among those, these thirteen have been selected. ...", "Slovakia amended a similar law last year and recognised a total of fourteen Churches, with ‘ Church ’ status being conferred on 20,000 members. I would add that in England and Sweden there is only one Church [ sic ]. So, in Europe all sorts [of regulations] can be found. ...", "Mr P. HARRACH (KDNP): ... Let me just add a sentence concerning political decisions. Political decisions are not from the devil, they are manifestations made by the State ’ s leaders on the basis of social considerations. Let us make clear that the issue of authenticity may be examined neither by Parliament nor by any other political organisation, since the assessment of the relationship of God and man or of openness to transcendence does not fall within their competence. The State may only classify religious communities as organisations, that is, it may only deal with their social role. Or, to put it in a very narrow way, with their role as keepers of institutions, since in practical terms this issue concerns subsidies granted to Churches. Freedom of religion is fully safeguarded and unimpaired, and this is guaranteed under the Act, irrespective of whether the exercise of religion takes place within an association or a ‘ Church ’. ...", "CHAIRMAN: ... In Hungary the freedom of religious communities is fully safeguarded. The granting of ‘ Church ’ status is a separate issue almost everywhere in Europe, where in certain countries like, for example, England and Sweden – commonly referred to as democratic States – only one ‘ Church ’ is recognised. On most of the European continent this two-tier system is applied. ‘ Church ’ status is not a right to be secured to everyone. Under decision no. 8/1993 of the Constitutional Court the legislature may differentiate between Churches on the grounds of their social significance, their historical role, the role they play in the nation and on other grounds. This is exactly what has been done here.", "Mr P. HARRACH: ... Deciding on the social function of religious communities is, however, a task for Parliament, and it is a Europe-wide practice.”", "37. The relevant excerpts from the minutes of the meeting of 13 February 2012 read as follows :", "“CHAIRMAN: ... Under the adopted Act, obtaining ‘ Church ’ status is not a right. ... The representation in Hungary of the five world religions is secured. ... The Buddhist Churches concluded an agreement with each other which made interpretation much easier for us and a similar intention also exists in the Islamic communities. This is good because we would not be able to analyse Buddhism or Islam in the same depth as they themselves can. ...", "There are some Churches and religious communities which in the meantime have submitted written statements to the Committee or to the Ministry of Public Administration and Justice stating that they do not wish to obtain Church status. In view of their statements they have not been included in this list. There is another ecclesiastical community which gave a statement to MTI [ the Hungarian news agency] according to which it would not request Church status. However, I cannot accept this as a valid legal statement. I could only accept it if they were to make a statement to similar effect to the Committee or to the Ministry of Public Administration and Justice. ...", "...", "In 1947 legal continuity was interrupted in Hungary. After the entry into force of the 1947 Act and the setting - up of the State Office for Church Affairs, Church affairs changed completely, with Churches being run as dictated by Moscow, complying with the instructions from Moscow. ...", "We therefore decided to return to the pre-1947 situation and the present list was based on the 1895 Act of Parliament. Of course, with one exception ... this exception being – in a sociological sense, in terms of membership – the third largest Church today. Present-day logic is based on the premise that if we expect the – mostly – Christian Churches not to be persecuted in Europe or other parts of the world, we should grant ‘ Church ’ status to representatives in Hungary of the great world religions. ... ”", "38. The relevant excerpts from the minutes of the meeting of 14 February 2012 read as follows :", "“CHAIRMAN: ... As to compliance with the requirements, I wish to emphasise that in these summary proceedings, where the case files of eighty-five Churches had to be scrutinised, there are, I think, some [ highly questionable] points ... which cannot be [clarified] in the present proceedings ...", "Therefore it should be clear to everyone that what we wish to attain for the time being is to grant [ ‘ Church ’ status to] authentic domestic representatives of the great world religions, while the authenticity and veracity of their certifications is still to be examined ... ”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Overview of developments in the relevant legislation", "21. Between 12 February 1990 and 31 December 2011 religious activities were regulated by the 1990 Church Act, which defined religious communities with a membership exceeding one hundred as Churches.", "22. As of 1 January 2012, the 1990 Church Act was replaced by Act no. CCVI of 2011 ( “ the 2011 Church Act”). Under the new Act, religious communities could exist either as Churches or as associations carrying out religious activities (“religious associations” according to the terminology used by the Constitutional Court). The only entities which qualified as Churches were those listed in the Appendix to the 2011 Church Act and those classified as Churches by Parliament subject to certain conditions, originally until 29 February 2012. The constitutional basis of this regulation was provided by Article 21 § 1 of the Transitional Provisions of the Fundamental Law, which vested in Parliament the power to identify the recognised Churches in the relevant cardinal law and to determine the criteria for the recognition of Churches that might additionally be admitted in the future. Formerly registered Churches could be converted, at their request, into associations and carry on their activities on that basis; however, under the new rules they were not entitled to any budgetary subsidies. Originally (under the 1990 Church Act), there had been 406 registered Churches, whereas the Appendix to the 2011 Church Act contained only fourteen. The Appendix, in force as of 1 March 2012, lists twenty-seven Churches and Church alliances, giving a total of thirty-two Churches. According to the information published by the tax authorities, these thirty-two Churches do not fully coincide with the thirty-two most supported Churches if such support is measured by the number of taxpayers making voluntary tax donations in their favour.", "On 28 December 2012 the Constitutional Court repealed, among other provisions, those rules of the Transitional Provisions of the Fundamental Law which had granted Parliament the right to identify recognised Churches. On 26 February 2013 it also annulled those provisions of the 2011 Church Act which had led to the applicants ’ being deprived, by force of law, of their Church status.", "23. Partly in response to the above-mentioned Constitutional Court decisions, the power of Parliament to grant special Church status was reintroduced into the Fundamental Law itself, notably by its Fourth Amendment, which came into force on 1 April 2013. This introduced the terms “ Churches ” and “other organisations performing religious activities”, with Churches being defined as those organisations with which the State cooperates to promote community goals and which the State recognises as such. In a similar vein, under the rules of the 2011 Church Act as amended with effect from 1 August 2013, the term currently in use is that of “religious communities”; this term encompasses “incorporated Churches ” ( bevett egyház ) as well as “organisations performing religious activities” ( vallási tevékenységet végző szervezet ). However, all these entities are entitled to use the word “ Church ” ( egyház ) in their names.", "24. Under the rules in force, for a religious community to become an “incorporated Church ” it must prove either one hundred years of international existence or that it has functioned in Hungary for twenty years in an organised manner and must prove a membership which equals at least 0.1 % of the national population. Moreover, it has to prove its intention and long-term ability to cooperate with the State to promote public-interest goals. On the other hand, a group of individuals may become an “organisation performing religious activities” if it has at least ten members and is registered as such by a court.", "25. The Fifth Amendment to the Fundamental Law (which came into force on 1 October 2013) was intended to emphasise, also at constitutional level, the principle that everyone is entitled to establish special legal entities (“religious communities”) designed for the performance of religious activities, and that the State may cooperate with some of those communities to promote community goals, conferring on them the status of “incorporated Church ”. To reflect the uniformity of “[incorporated] Churches ” and “other organisations performing religious activities” in terms of freedom of religion, those terms were replaced by the overall term “religious communities” throughout the text of the Fundamental Law.", "However, under the present rules of Hungarian law, incorporated Churches continue to enjoy preferential treatment, in particular in the field of taxation and subsidies. In particular, only incorporated Churches are entitled to the 1% of personal income tax donated by citizens and to the corresponding State subsidy. Moreover, in decision no. 6/2013 (III. 1.), the Constitutional Court identified, in a non-exhaustive list (see points 158 to 167 of the decision in paragraph 34 below), several activities whose exercise is facilitated – in legal, economical, financial and practical terms – by the lawmaker in the case of incorporated Churches but not in the case of other religious communities: these examples include religious education and confessional activities within State institutions, the operation of cemeteries, including religious funerals, the publication of religious printed material and the production and marketing of religious objects.", "Notwithstanding the fact that the applicants have nominally regained their legal status, they cannot benefit from preferential treatment of this kind, which is available only to incorporated Churches.", "B. Constitutional provisions", "26. The Fundamental Law of Hungary, as in force on 1 January 2012, provided :", "Article VII", "“1. Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other conviction, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other conviction by performing religious acts or ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life.", "2. The State and the Churches shall be separate. Churches shall be autonomous. The State shall cooperate with the Churches to promote community goals.", "3. The detailed rules for Churches shall be regulated by a cardinal Act.”", "27. With effect from 1 April 2013, pursuant to the Fourth Amendment to the Fundamental Law of Hungary, the text of Article VII of the Fundamental Law was amended as follows:", "Article VII", "“1. Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other conviction, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other conviction by performing religious acts or ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life.", "2. Parliament may pass cardinal Acts recognising certain organisations which perform religious activities as Churches, with which the State shall cooperate to promote community goals. The provisions of cardinal Acts concerning the recognition of Churches may be the subject of a constitutional complaint.", "3. The State and Churches and other organisations performing religious activities shall be separate. Churches and other organisations performing religious activities shall be autonomous.", "4. The detailed rules for Churches shall be regulated by a cardinal Act. As a requirement for the recognition of any organisation performing religious activities as a Church, the cardinal Act may prescribe an extended period of operation, social support and suitability for cooperation to promote community goals.”", "28. With effect from 1 October 2013, pursuant to the Fifth Amendment to the Fundamental Law of Hungary, the text of Article VII of the Fundamental Law was amended as follows:", "Article VII", "“1. Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other conviction, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other conviction by performing religious acts or ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life.", "2. In order to practise their religion, persons sharing the same principles of faith may establish religious communities in organisational forms defined by cardinal Act.", "3. The State and the religious communities shall be separate. Religious communities shall be autonomous.", "4. The State and the religious communities may cooperate to promote community goals. Such cooperation shall be established by decision of Parliament, at the request of the religious community concerned. Religious communities participating in such cooperation shall operate as incorporated Churches. With a view to their participation in activities promoting community goals, the State shall confer specific rights on the incorporated Churches.", "5. Common rules concerning religious communities, the conditions of cooperation, the incorporated Churches and the detailed rules governing them shall be defined and regulated by a cardinal Act.”", "C. Statutory provisions", "29. In its relevant provisions the 2011 Church Act, as in force on 1 January 2012, read as follows:", "Religious activities", "Section 6", "“(1) For the purposes of this Act, religious activities relate to a set of beliefs directed towards the transcendental which has a system of faith-based principles and whose teachings focus on existence as a whole, and which embraces the entire human personality and lays down specific codes of conduct that do not offend morality and human dignity.", "(2) The following shall not be considered as religious activities per se :", "( a) political and lobbying activities;", "( b) psychological and parapsychological activities;", "( c) medical activities;", "( d) business / entrepreneurial activities;", "( e) pedagogical activities;", "( f) educational activities;", "( g) higher educational activities;", "( h) health care activities;", "( i) charitable activities;", "( j) family, child or youth protection activities;", "( k) cultural activities;", "( l) sports activities;", "( m) animal protection, environmental protection or nature conservation activities;", "( n) information technology activities which go beyond the information technology necessary for faith-based activities;", "( o) social work activities.”", "Churches", "Section 7", "“(1) A Church, religious denomination or religious community (hereinafter referred to as ‘ Church ’ ) shall be an autonomous organisation comprising natural persons sharing the same principles of faith, shall possess self-government, and shall operate primarily for the purpose of exercising religious activities. For the purposes of this Act, religious denominations and religious communities shall also be considered as Churches.", "(2) Natural persons confessing the same principles of faith, with full capacity to act and residing in Hungary, may establish a Church for the exercise of their religion. ...", "(4) The Churches recognised by Parliament are listed in the Appendix to this Act.”", "Section 8", "“The State may enter into agreements with Churches which have substantial social support, preserve historical and cultural values and maintain pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural or sports institutions (hereinafter referred to as ‘ public - interest activities ’ ) in order to ensure their operation.”", "Section 9", "“...", "(2) The State may take into account the actual social role of Churches and the public - interest activities performed by them, in enacting additional rules of law related to the social role of Churches and in maintaining relations with them.”", "Section 14", "“(1) The representative of an association which primarily performs religious activities (hereinafter referred to as an ‘ association ’ ) shall be authorised to initiate the recognition of the represented association as a Church by submitting a document signed by a minimum of 1,000 individuals, applying the rules governing popular initiatives.", "(2) An association shall be recognised as a Church if", "( a) it primarily performs religious activities;", "( b) it has a confession of faith and rites containing the essence of its teachings;", "( c) it has been operating internationally for at least one hundred years, or in an organised manner as an association in Hungary for at least twenty years, which includes operating as a Church registered under [the 1990 Church Act] prior to the entry into force of this Act;", "( d) it has adopted a statute, an instrument of incorporation and internal ecclesiastical rules;", "( e) it has elected or appointed administrative and representative bodies;", "( f) its representatives declare that the activities of the organisation established by them are not contrary to the Fundamental Law, do not conflict with any rule of law and do not violate the rights and freedoms of others;", "( g) the association has not been considered a threat to national security during the course of its operation;", "( h) its teaching and activities do not violate the right to physical and psychological well-being, the protection of life or human dignity.", "(3) Based on the popular initiative, the parliamentary committee on religious affairs (hereinafter referred to as ‘ the committee ’ ) shall submit a bill to Parliament regarding the recognition of the association as a Church. If the conditions defined in subsection (2) are not fulfilled, the committee shall indicate this in connection with the bill.", "(4) At the request of the committee, the association shall certify that it fulfils the conditions defined in points ( a) to ( f) of subsection (2). The committee shall request the opinion of the President of the Hungarian Academy of Sciences regarding the fulfilment of the conditions defined in points ( a) to ( c) of subsection (2).", "(5) If Parliament does not support the recognition of an association as a Church in accordance with the bill referred to in subsection (3), the decision made in this regard shall be published in the form of a parliamentary resolution. No popular initiative aimed at securing recognition of the association as a Church may be initiated within a period of one year following the publication of this resolution.”", "Section 15", "“The association in question shall qualify as a Church as of the day of entry into force of the amendment to this Act in respect of its registration.”", "Section 19", "“...", "(3) In order to realise their goals, Churches shall be authorised to engage in activities which do not qualify as business or entrepreneurial activities, and shall also be authorised to engage in business or entrepreneurial activities besides their core activities. Furthermore, they shall be authorised to establish businesses and NGOs and to participate therein.", "(4) Churches ’ public - interest activities and institutions shall be entitled to budgetary funds to the same extent as State and local government institutions performing similar activities. In these Church institutions the conditions of employment shall conform to those in the public sector in respect of wages, working time and rest periods.", "(5) The central wage - policy measures applicable to employees of State and local government institutions shall apply to the employees of the Church institutions referred to in subsection (4), subject to the same conditions.", "(6) Churches may receive funding on a statutory basis from the subsidiary organs of central government, from programmes financed out of EU funds or on the basis of international agreements, by way of application or outside the system of applications, on the basis of a specific decision. ...”", "Section 20", "“...", "(4) In addition to those activities listed in section 6, subsection (2), the following shall not qualify as business or entrepreneurial activities in the case of Churches:", "( a) the operation of religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural and sports institutions, as well as ... activities to protect the environment;", "( b) the use of holiday homes as a service to Church personnel;", "( c) the production or sale of publications or objects of piety which are necessary for religious life;", "( d) the partial exploitation of real estate used for Church purposes;", "( e) the maintenance of cemeteries;", "( f) the sale of non- material goods, objects ... serving exclusively religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, including the reimbursement of the cost of work clothes;", "( g) the provision of services complementary to religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, or the not-for-profit use of equipment serving these activities;", "( h) the production or sale of products, notes, textbooks, publications or studies linked to the performance of public duties taken over from the State or local government;", "( i) the operation of pension institutions or pension funds set up for the self-support of Church personnel.", "(5) The revenues generated from activities listed in subsection (4) shall include, in particular, the following:", "( a) payments, fees and reimbursements in respect of services;", "( b) compensation, damages, penalties, fines and tax refunds connected to the activity;", "( c) ... non-repayable funding, grants received in connection with the activity; and", "( d) the portion of interest, dividends and yields paid by financial institutions and issuers on deposits and securities made or acquired using uncommitted funds, in proportion to the revenues generated by activities which do not qualify as business or entrepreneurial activities.", "(6) Churches may be granted tax benefits and other similar benefits.”", "Section 23", "“Churches, and in particular Church rites and the undisturbed conduct of Church governance, as well as Church buildings, cemeteries and other holy places, shall enjoy enhanced protection under the law on regulatory offences and under criminal law.”", "Section 24", "“(1) In teaching or educational institutions financed by the State or local government, Churches may provide religious and moral education according to the needs of students and their parents; in institutions of higher education Churches may carry out faith-based activities. ... The costs of religious and moral education shall be borne by the State, on the basis of a separate Act or of agreements concluded with the Churches.", "(2) Churches may perform pastoral services in the army, in prisons and in hospitals, or other special ministries as provided for by statute .”", "Section 33", "“(1) The Minister shall, within thirty days of the entry into force of this Act, register the Churches listed in the Appendix to this Act and the internal ecclesiastical legal persons determined by them under section 11.", "(2 ) Churches listed in the Appendix and their internal ecclesiastical legal persons may operate as Churches and as internal ecclesiastical legal persons regardless of the date of their registration under subsection (1). ...”", "Section 34", "“...", "(2) Until the expiry of Act no. C of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities, with the exception of the rules governing popular initiatives, Parliament shall, in the light of the provisions governing the recognition of Churches set out in Act no. C of 2011 ..., make decisions by 29 February 2012 in respect of the recognition of Churches submitting applications for recognition to the Minister in accordance with this Act, under the procedure set out in section 14, subsections (4) and (5).", "(3) The Minister shall publish a list of the Churches specified in subsection (2) above on the Ministry ’ s official website.", "(4) If Parliament refuses to recognise a Church in accordance with subsection (2), for the purposes of this Act and other relevant legislation that Church shall qualify as an organisation pursuant to subsection (1) as of 1 March 2012, and sections 35 to 37 shall apply to it, with the proviso that:", "( a) recognition as a Church may proceed on the basis of a popular initiative launched up to one year after publication of the parliamentary resolution referred to in section 14, subsection (5);", "( b) the procedural action defined in section 35, subsection (1), must be commenced by 30 April 2012 and the conditions set out in section 37, subsection (2), must be fulfilled by 31 August 2012;", "( c) the date of 30 April shall be taken into account in applying section 35, subsection (3), point (b);", "( d) the date of legal succession in accordance with section 36, subsection (1), shall be 1 March 2012;", "( e) budgetary funding for ecclesiastical purposes may be granted to the Churches specified in subsection (2) up to 29 February 2012.", "(5) The organisation", "( a) may initiate its registration as an association in accordance with section 35, and", "( b) where it meets the requirements provided for in this Act, may initiate the recognition of the association as a Church in accordance with the provisions set out in Chapter III.”", "Section 35", "“(1) The organisation shall declare its intention to continue or discontinue its activities by 29 February 2012, and where it intends to continue its activities it shall, in accordance with the rules concerning associations, initiate a change -of- registration procedure. In this connection section 37, subsection (1), section 38 and section 63, points ( a) and ( c), of Act no. CLXXXI of 2011 on the court registration of civil society organisations and related rules of procedure shall apply, with the proviso that the meeting at which the change of registration is decided shall be considered as the constituent assembly.", "(2) The requirements for the organisation to be registered as an association must be fulfilled by 30 June 2012 at the latest. However, if the organisation undertakes religious activities from 1 January 2012 within the same organisational framework defined in its internal ecclesiastical rules as in force on 31 December 2011, the court, in the course of the registration of the association and in connection with the requirements set out in section 62, subsection (4), point (b), of Act no. IV of 1959 on the Civil Code, shall refrain from assessing whether the instrument of incorporation of the organisation complies with the legal provisions relating to the establishment and competence of the supreme body, administrative body and representative body. Failure to meet the above deadline shall result in forfeiture of the right to register. ...”", "Section 37", "“(1) With the exception of the cases defined in subsection (3), after the entry into force of this Act only Churches listed in the Appendix may be granted budgetary subsidies for ecclesiastical purposes.", "(2) For the purposes of Act no. CXXVI of 1996 on the use of a specified amount of personal income tax in accordance with the taxpayer ’ s instructions, the organisation shall be considered to be an association and shall be entitled to the 1% that can be donated to associations, provided that it complies with the conditions laid down by the laws concerning associations by 30 June 2012.", "(3) On the basis of an agreement, the State shall provide budgetary subsidies for the operation of the following institutions operated by the organisation on 31 December 2011:", "( a) until 31 August 2012 for public education institutions;", "( b) until 31 December 2012 for social institutions.”", "Section 38", "“(1) While abiding by the agreements concluded with Churches engaged in public ‑ interest activities, the Government shall review these agreements and, if appropriate, shall initiate the conclusion of new agreements.", "(2) Until 31 December 2012, the Government may conclude agreements relating to the provision of budgetary funding with organisations performing public duties which do not qualify as Churches under this Act.”", "Section 50", "“...", "(3) The following section 13 shall be added to the Church Funding Act:", "‘ Section 13: An organisation under section 34, subsection (1), of the Church Funding Act shall be entitled, in 2012, to receive the complementary funding specified under section 4, subsection (3), provided it has been recognised as a Church by Parliament up to 20 May 2012. ’ ”", "Section 52", "“Section 34 shall be replaced by the following provision:", "‘ Section 34 (1): With the exception of the Churches listed in the Appendix and their independent organisations established for religious purposes, organisations registered in accordance with [the 1990 Church Act] and their organisations established for religious purposes (hereinafter jointly referred to as ‘ organisations ’ ) shall qualify as associations as of 1 January 2012. ... ’ ”", "30. The 2011 Church Act was amended on several occasions, in particular on 1 August 2013. Following these amendments, the criteria to be met in order for an organisation performing religious activities to obtain “incorporated Church ” status remain similar to those introduced on 1 January 2012, with the following differences: if the organisation has been operating in Hungary, it has to prove a membership which equals at least 0.1 % of the national population in Hungary (a requirement not applied to organisations which have been operating internationally); moreover, it has to prove its intention and long-term ability to cooperate with the State to promote public-interest goals. The ability of an organisation to cooperate may be evidenced by its statute, the number of members it has, its previous activities and the accessibility of those activities to a large section of the population.", "31. The procedure for recognition as an “incorporated Church ” was also amended. A request for recognition must be submitted to the Minister in charge of religious affairs (instead of Parliament). The Minister examines whether the organisation meets certain statutory criteria and adopts an administrative decision which is open to judicial review. The final decision is communicated to the parliamentary committee on religious affairs which, in turn, examines the organisation ’ s intention and ability to cooperate with the State as well as the conformity of its teachings and activities with others ’ rights to physical and psychological well-being, the protection of life and human dignity. Parliament ’ s Committee for National Security further examines whether the organisation has been considered a threat to national security. The representatives of the organisation are heard by the parliamentary committee on religious affairs. If, following examination by the committee, the organisation is found to meet all the statutory criteria, the committee submits a bill for the granting of “incorporated Church ” status. Otherwise, it submits a motion proposing the refusal of the request, which must contain due reasoning. Parliament then decides whether to adopt the bill or the motion for refusal. The lawfulness of a refusal may be challenged before the Constitutional Court within fifteen days.", "32. The 2011 Church Act, as amended on 1 August 2013, provides, in its relevant parts, as follows:", "Religious activities and common rules on the status of religious communities", "Section 6", "“(1) A religious community shall be a Church recognised by Parliament or an organisation performing religious activities. A Church recognised by Parliament shall be an incorporated Church.", "(2) A religious community shall be established and operate primarily for the purposes of religious activities.", "(3) Religious activities relate to a set of beliefs directed towards the transcendental which has a system of faith-based principles and whose teachings focus on existence as a whole, and which embraces the entire human personality and lays down specific codes of conduct.", "(4) The following shall not be considered as religious activities per se :", "( a) political and lobbying activities;", "( b) psychological and parapsychological activities;", "( c) medical activities;", "( d) business / entrepreneurial activities;", "( e) pedagogical activities;", "( f) educational activities;", "( g) higher educational activities;", "( h) health care activities;", "( i) charitable activities;", "( j) family, child or youth protection activities;", "( k) cultural activities;", "( l) sports activities;", "( m) animal protection, environmental protection or nature conservation activities;", "( n) information technology activities which go beyond the information technology necessary for faith-based activities;", "( o) social work activities.", "(5) A religious community shall only perform religious activities which are neither contrary to the Fundamental Law nor unlawful and which do not violate the rights and freedoms of other communities.”", "Section 7", "“A religious community shall be entitled to use, as a self-definition, the word ‘ Church ’ in its name and when referring to its activities whose content is based on its principles of faith. The name of an organisation performing religious activities shall not contain any reference to ‘ association ’ as a legal form.”", "Section 9", "“(1) The Government may enter into agreements with religious communities which have substantial social support, preserve historical and cultural values ( either themselves or through their subsidiary institutions) and maintain pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural or sports institutions, in order to ensure their operation. ... ”", "Organisation performing religious activities", "Section 9/A", "“(1) An organisation performing religious activities shall be an association comprising natural persons confessing the same principles of faith and shall, according to its statute, operate for the purpose of exercising religious activities.", "(2) The rules governing the activities of associations shall apply accordingly to organisations performing religious activities, with the differences provided for in this Act.”", "Section 9/B", "“(1) The Budapest High Court shall have exclusive jurisdiction to register organisations performing religious activities.", "(2) On receiving a registration request, the High Court shall examine only whether", "( a) the organisation ’ s representatives have declared that its establishment serves the purpose of exercising religious activities;", "( b) the activity to be performed by the organisation does not violate section 6, subsections (4) and (5);", "( c) the organisation ’ s founding was declared, and its statute adopted, by ten members at least;", "( d) only natural persons are members of the organisation and the statute excludes any legal person from membership.", "(3) The registration request shall be rejected only if the organisation fails to meet the requirements enumerated under subsection (2), points (a) to (d), above.", "(4) The statute of organisations performing religious activities may regulate the following subjects in a manner which differs from the rules applying to associations:", "( a) admittance to the organisation and exercise of membership rights;", "( b) the persons, as well as their tasks and competences, who have a legal relationship with the organisation and are entitled to", "b. a adopt and oversee internal decisions concerning the organisation ’ s activity or", "b. b manage and represent the organisation.”", "(5) Organisations performing religious activities may merge only with other organisations performing religious activities.”", "Section 9/C", "“(1) The review of lawfulness exercised by the prosecutor ’ s office in respect of an organisation performing religious activities shall extend only to verifying whether the organisation ’ s activity conforms to section 6, subsections (4) and (5). If the organisation fails to meet those requirements even after a warning from the prosecutor ’ s office, the latter may initiate court proceedings against the organisation.", "(2) At the request of the prosecutor ’ s office the court may", "( a) order the organisation to restore its activity to a lawful footing and dissolve it in the event of non-compliance;", "( b) dissolve the organisation if its activity violates the Fundamental Law in the opinion of the Constitutional Court.”", "Ecclesiastical legal person ( Egyházi jogi személy )", "Section 10", "“The incorporated Churches and their internal ecclesiastical legal entities shall be ecclesiastical legal persons.”", "Section 11", "“(1) An incorporated Church shall be an autonomous organisation possessing self ‑ government and comprising natural persons confessing the same principles of faith, on which Parliament confers special public - law status for the purpose of cooperation to promote public-interest goals.", "(2) The incorporated Church shall be a legal person.", "(3) Incorporated Churches shall have equal rights and obligations.", "(4) Incorporated Churches shall be enumerated in the Appendix to this Act.”", "Person in the service of a religious community", "Section 13", "“(1) An ecclesiastic ( egyházi személy ) shall be a natural person who, according to the internal rules of an incorporated Church, exercises ecclesiastical ministry in the framework of a specific ecclesiastical, labour or other relationship.", "(2) Ecclesiastics shall be entitled to keep secret from the State authorities any personal information which they acquire during ecclesiastical service.", "(3) Ecclesiastics shall enjoy enhanced protection under the law on regulatory offences and under criminal law.”", "Section 13/A", "“(1) A professional minister of an organisation performing religious activities shall be a natural person who is in the service of the organisation and exercises his or her activity in the framework of a labour relationship.", "(2) Section 13(2) and (3) shall apply to the professional ministers of organisations performing religious activities.”", "Conditions for recognition as a Church", "Section 14", "“(1) An organisation performing religious activities shall be recognised as a Church by Parliament if:", "( a) it primarily performs religious activities;", "( b) it has a confession of faith and rites containing the essence of its teachings;", "( c) it has been operating", "c. a internationally for at least one hundred years or", "c. b in an organised manner as a religious community in Hungary for at least twenty years and its membership equals at least 0.1 % of the national population;", "( d) it has adopted internal ecclesiastical rules;", "( e) it has elected or appointed administrative and representative bodies;", "( f) its representatives declare that the activities of the organisation established by them are not contrary to subsections (4) and (5) of section 6;", "( g) its teaching and activities do not violate the right to physical and psychological well-being, the protection of life and human dignity;", "( h) the association has not been considered a threat to national security during the course of its operation and;", "( i) its intention and long-term ability to maintain cooperation to promote public ‑ interest goals is evidenced especially by its statute, the number of members it has, its previous activity in the areas enumerated in section 9(1) and the accessibility of those activities to a large section of the population.”", "Rules on the functioning of religious communities", "Section 19", "“(1) Religious communities shall function according to their internal rules, principles of faith and rites.", "(2) Religious communities may participate in shaping social values. To this end, the community ( either itself or through an institution which it establishes for this purpose) may also exercise the activities defined in section 9(1) which are not statutorily reserved for the State itself or a State institution. ...", "(5) Religious communities may enter freely into civil - law relationships; they may establish businesses and NGOs and participate therein.”", "Section 19/A", "“(3) On the basis of statutory rules Churches may receive funding from the subsidiary organs of central government, from programmes financed out of EU funds or on the basis of international agreements, by way of application or outside the system of applications, on the basis of a specific decision. ... ”", "Section 19/C", "“Religious communities, Church buildings, cemeteries and other holy places shall enjoy enhanced protection under the law on regulatory offences and under criminal law, in particular to ensure the undisturbed performance of rites and operation according to internal rules.”", "Rules on the functioning of ecclesiastical legal persons", "Section 20", "“(1) Ecclesiastical legal persons performing public - interest activities related to the areas enumerated in section 9(1) shall be eligible for budgetary funds to the same extent as State and local government institutions performing similar activities.", "(2) The conditions of employment within ecclesiastical legal persons performing the activities enumerated in section 9(1) shall conform to those in the public sector in respect of wages, working time and rest periods. The central wage - policy measures applicable to employees of State and local government institutions shall cover the employees of ecclesiastical legal persons, subject to the same conditions.", "(3) With a view to cooperation to promote public-interest goals, ecclesiastical legal persons may be granted tax benefits or other similar benefits.”", "Section 21", "“(1) With a view to cooperation to promote public-interest goals, ecclesiastical legal persons may organise, according to statutory regulations, religious education in educational institutions maintained by the State, local government or local minority governments, as well as in higher educational institutions maintained by the State or a national minority government. ...", "(3) The costs of religious education ... shall be borne by the State, on the basis of statutory regulations or an agreement concluded with an incorporated Church .”", "Section 22", "“(1) In order to realise their goals, ecclesiastical legal persons shall be authorised to engage in activities which do not qualify as business or entrepreneurial activities, and shall also be authorised to engage in business or entrepreneurial activities besides their core activities, even beyond the limits defined in section 19(5).", "(2) The following shall not qualify as business or entrepreneurial activities in the case of ecclesiastical legal persons:", "( a) the operation of religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural and sports institutions, as well as ... activities to protect the environment;", "( b) the use of holiday homes as a service to Church personnel;", "( c) the production or sale of publications or objects of piety which are necessary for religious life;", "( d) the partial exploitation of real estate used for Church purposes;", "( e) the maintenance of cemeteries;", "( f) the sale of non- material goods, objects ... serving exclusively religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, including the reimbursement of the cost of work clothes;", "( g) the provision of services complementary to religious, pedagogical, educational, higher educational, health care, charitable, social, family / child / youth protection, cultural, sports or environmental protection activities, or the not - for- profit use of equipment serving these activities;", "( h) the production or sale of products, notes, textbooks, publications or studies linked to the performance of public duties taken over from the State or local government;", "( i) the operation of pension institutions or pension funds set up for the self-support of Church personnel;", "( j) permission for a third party to use the ecclesiastical person ’ s name, abbreviated name, commonly used denomination, emblem or logo.", "(3) The revenues generated from the activities listed in subsection (2) shall include, in particular, the following:", "( a) payments, fees and reimbursement in respect of services;", "( b) compensation, damages, penalties, fines and tax refunds connected to the activity;", "( c) ... non-repayable funding, grants received in connection with the activity; and", "( d) the portion of interest, dividends and yields paid by financial institutions and issuers on deposits and securities made or acquired using uncommitted funds, in proportion to the revenues generated by activities which do not qualify as business or entrepreneurial activities.”", "Section 24", "“Incorporated Churches may perform pastoral services in the army, in prisons and in hospitals, or other special ministries as laid down in statutory rules.”", "33. Act no. XXXII of 1991 on settling the ownership of former Church properties provides as follows:", "Preamble", "“ ... The party-State, which was based on the principle of an exclusively materialist and atheist outlook, restricted the confessional life and social role of Churches to a bare minimum by confiscating their assets and dissolving most of their organisations, and through other instruments of power representing a continuous abuse of rights.", "In a Hungary based on the rule of law Churches can again, freely and in an unrestricted manner, fulfil their societal role; however, they do not have the necessary financial means.", "Act no. IV of 1990 on Churches ... already made reference to the fact that Hungarian Churches, in addition to their confessional activities, fulfil important tasks in the life of the nation, notably through cultural, educational, social and health care activities and fostering national identity. However, it was not yet possible at that time to generate the material and financial assets necessary for these tasks.", "In order to remedy, at least in part, the serious infringements that occurred and to secure the financial and material conditions for Churches to be able to carry on with their activities, Parliament hereby enacts the following law with a view to settling the ownership of former Church properties:”", "Act no. CXXIV of 1997 on the financing of the religious and public ‑ interest activities of Churches (“the Church Funding Act”) provides as follows:", "Preamble", "“Recognising the Hungarian Churches ’ millennium-long work on behalf of the life and interests of the nation;", "Mindful of the importance of religious convictions in Hungarian society;", "Taking into account the fact that the Hungarian Churches were subjected to measures depriving them of their rights after 1945;", "Considering the requirements of separation of State and Church as well as the requirement for them to cooperate to promote community goals;", "Parliament hereby enacts the following law: ... ”", "Section 1", "“This Act shall apply to incorporated Churches, religious denominations and religious communities ... within the meaning of the [2011 Church Act].” [2]", "Section 4", "“(1) Incorporated Churches shall be entitled, under the detailed provisions of a separate Act, to 1% of the personal income tax of those individuals who donate their tax for that purpose. Incorporated Churches may make use of this amount according to their internal rules.", "(2) Beside the [above] amounts ..., incorporated Churches shall be entitled to further subsidies as provided for in subsections (3) and (4) below.", "(3) If the total amount of the subsidy to which the incorporated Churches are entitled under subsection (1) does not attain 0.9 % of the personal income tax declared in the relevant year (calculated by reference to the consolidated tax base and after deduction of the applicable tax reliefs), the actual amount of the subsidy to be transferred to the incorporated Churches shall be supplemented from the State budget to the above-mentioned extent.", "(4) Incorporated Churches shall be entitled to the subsidy in proportion to the number of individuals who donated 1% of their personal income tax to them.”", "Section 6", "“(1) Incorporated Churches shall be entitled to further subsidies (hereinafter: ‘ complementary subsidies ’ ), based on the decision of the persons provided with public services to procure those services from institutions maintained by incorporated Churches. ... ”", "D. Case-law of the Constitutional Court", "34. Decision no. 6/2013 (III. 1.) of the Constitutional Court contains the following passages:", "“[131] The Fundamental Law lays down the principle of separation (detachment) of Churches and State in connection with freedom of religion. Besides being one of the founding principles of the functioning of a secular State, it is also one of the guarantees of freedom of religion.", "[134] ... The Fundamental Law guarantees that ‘ religious communities ( in addition to other institutional forms proposed by the law on associations) may freely avail themselves of the legal status which national law refers to as that of a ‘ Church ’. By providing for this legal form, the State acknowledges the unique characteristics of Churches and enables them to find their place within the legal order ... ’", "[141] ... Therefore, Parliament cannot decide, under the Fundamental Law, to abolish the special ‘ Church ’ legal form for religious communities. It would violate the Fundamental Law if religious communities could only function either as associations or as other legal entities whose establishment is open to any group of persons even without any religious context. The lack of a special legal form providing enhanced autonomy for the practice of freedom of religion would be unconstitutional.", "[143] 2.3. On issues of substance, the State relies on the self-definition of religions and religious communities. However, in accordance with freedom of religion and the right to practise a religion in community, it may define objective and reasonable conditions for recognition as a special legal entity, that is to say, a ‘ Church ’. In particular, such conditions may include a minimum number of members in order to submit a request for recognition, or a minimum length of time in operation.", "[146] 2.4. In view of the above considerations, the State may regulate the conditions for conferring legal personality on organisations and communities established in accordance with freedom of religion by means of rules which take into account the specific characteristics of the organisation or community concerned. Nevertheless, the Constitutional Court would point out that ... ‘ it would raise ... constitutionality issues if the legislature were to grant the possibility to become a legal person or to establish a specific legal entity for some organisations while arbitrarily excluding others in a comparable situation or making it disproportionately difficult for them to obtain such legal status ’ ...", "[152] The State enjoys a relatively wide margin of appreciation (within the limits imposed by the Fundamental Law) in defining public-interest goals. In general, the State is not obliged to cooperate on the achievement of targets defined by a Church or religious community if it has not otherwise undertaken to accomplish tasks in that sphere.", "[153] The State also enjoys a wide margin of appreciation in granting financial subsidies, benefits and exemptions to Churches, as the State has the power to enforce the principle of balanced, transparent and sustainable budget management ... according to Article N of the Fundamental Law. However, the Constitutional Court would stress that in allocating such subsidies, the State has to pay particular attention to the specific requirements imposed by freedom of religion and must ensure that none of the Churches is discriminated against in comparison with similarly situated Churches and organisations [ see Articles VII and XV of the Fundamental Law].", "[155] There is no constitutional obligation to provide every Church with similar entitlements. Nor is the State obliged to cooperate equally with every Church. Practical differences in securing rights related to freedom of religion remain constitutional in so far as they are not the result of a discriminatory practice. The State ’ s neutrality has to be maintained, in terms of executing public-interest tasks undertaken by the State, the allocation of subsidies to Churches and mandatory societal cooperation between the State and the Churches.", "[156] ... [T]he State is constitutionally required to ensure that religious communities have the opportunity to acquire special Church status (allowing them to function independently), and other entitlements conferred on Churches, in a manner consistent with freedom of religion and the specific entitlement in question, under objective and reasonable conditions, in fair proceedings meeting the requirements of Articles XXIV and XXVIII of the Fundamental Law, and subject to a remedy. ...", "[158 ] ... The Constitutional Court has reached the conclusion that, although there are similarities in the regulation of the rights of incorporated Churches and religious associations, the 2011 Church Act also contains several important differences. A non ‑ exhaustive list of them follows.", "[159] Until [20 December 2011,] ... the rules providing enhanced autonomy for incorporated Churches and the right of ecclesiastics to keep secret from the State authorities any personal information acquired during religious ministry also applied accordingly to the religious activity of those religious associations which unsuccessfully applied to the Minister for Church status. ... However, under the 2011 Church Act religious associations which subsequently applied unsuccessfully for Church status are no longer entitled to these guarantees.", "[160] Since the entry into force of the 2011 Church Act budgetary subsidies may be granted only to incorporated Churches (apart from some subsidies which may be extended for one year pursuant to specific agreements).", "[161] Under Act no. CXXVI of 1997 on the use of a specified amount of personal income tax in accordance with the taxpayer ’ s instructions, religious associations are considered as associations in accordance with the 2011 Church Act. As a consequence, they may be entitled to the portion of personal income tax which may be donated to associations. ... [T]hese associations are also considered to be beneficiaries, but not of religious subsidies ...", "[162] Incorporated Churches may use donations to provide their ministers performing religious services and rites ... with an income which is exempt from personal income tax. ...", "[163] The Church Funding Act stipulates that the archives, libraries and museums of [incorporated] Churches are entitled to ... a subsidy on a similar basis to the institutions maintained by the State.", "[164] The public - interest activities and institutions of [incorporated] Churches are entitled to budgetary funds to the same extent as State and local government institutions performing similar activities. In these Church institutions the conditions of employment must conform to those in the public sector in respect of wages, working time and rest periods. The central wage - policy measures applicable to employees of State and local government institutions also apply to the employees of Church institutions, subject to the same conditions. ...", "[165] The State authorities are prohibited from examining the religion-related revenues of the [incorporated] Churches and the use of those revenues. ...", "[166] The costs of religious and moral education are borne by the State, on the basis of a separate Act or of agreements concluded with the [incorporated] Churches.", "[167] In the light of the above, the Constitutional Court holds that the legislation in force confers on incorporated Churches additional rights which place them in a substantially advantageous situation compared with religious associations and which assist their religious and financial functioning and thus promote their freedom of religion. ...", "[181] The Church status of an organisation does not constitute an ‘ acquired right ’ protected by the Fundamental Law, in the sense that it may be reviewed and possibly withdrawn if it subsequently transpires that the conditions for conferring it were not met. ... [I]t is a constitutional requirement that, in similar fashion to proceedings for the acquisition of Church status, the review of such status must also be fair and subject to a remedy.", "[196] When deciding to confer Church status on religious communities which request it, Parliament does not legislate but applies the law (as an ‘ authority ’ in the sense of Article XXIV of the Fundamental Law), since it is deciding on the applicant ’ s rights in a particular case. ...", "[200] The Constitutional Court has previously established that the risk of some kind of political assessment being made in connection with the recognition of Churches cannot be excluded ...", "[212] For the above reasons, the Constitutional Court holds that section 14, subsections (1) and (3) to (5), as well as section 34, subsections (2) and (4), of the 2011 Church Act, do not meet the requirements flowing from the right to a fair trial and the right to a remedy and that, as a consequence, the law gives rise to a violation of freedom of religion and of the prohibition of discrimination. Therefore, the above ‑ mentioned provisions violate the Fundamental Law.", "[215] ... [F]or that reason, the Constitutional Court orders the retroactive annulment of section 14, subsections (3) to (5), of the 2011 Church Act as of 1 January 2012, when the regulation entered into force.", "[222] As a general rule, Churches registered under [the 1990 Church Act] and their subsidiary autonomous organisations established for religious aims were converted ex lege into associations by section 34(1) of the 2011 Church Act (in force between 1 January 2012 and 31 August 2012).", "[224] ... [The Constitutional Court] declares section 34(1) (in force between 1 January 2012 and 31 August 2012) of the 2011 Church Act to be inapplicable with retroactive effect in respect of the applicants .”", "35. Section 34(1) of the 2011 Church Act stipulated that, as of 1 January 2012, every Church and religious organisation was to be considered as an association, with the exception of those “defined in the Appendix to the Act” by Parliament. Although only this arbitrary recognition and enumeration of privileged Churches was found to be unconstitutional, the Constitutional Court decided to annul the entire subsection (1) of section 34, and not only the expression “defined in the Appendix”, for the sake of legal certainty.", "IV. RELEVANT INTERNATIONAL MATERIALS", "39. In General Comment 22 (U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994)), the United Nations Human Rights Committee stated, in so far as relevant, as follows:", "“2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘ belief ’ and ‘ religion ’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.", "...", "4. ... [T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.", "...”", "40. The European Commission for Democracy through Law (“ the Venice Commission”), in its Opinion on the 2011 Church Act (adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-1 7 March 2012)), stated as follows (footnotes omitted) :", "“ ... 18. The Venice Commission would like to recall that the right to freedom of religion and conscience covers more elements than merely granting privileges, state subsidies and tax benefits to recognised Churches. Freedom of thought, conscience and religion is one of the foundations of a ‘ democracy society ’. It is so important that it cannot be derogated at all and cannot be restricted on national security grounds.", "19. The freedom of thought, conscience and religion (Article 9 ECHR and 18 ICCPR), is a complex right, which is closely linked to and must be interpreted in connection with the freedom of association (Article 11 ECHR and 22 ICCPR), and the right to non-discrimination (Article 14 ECHR and 26 ICCPR).", "...", "28. According to Section 7.1 of the Act ‘ A Church, denomination or religious community (hereinafter referred to as ‘ Church ’ ) shall be an autonomous organisation recognised by the National Assembly consisting of natural persons sharing the same principles of faith; shall possess self-government and shall operate primarily for the purpose of practising religious activities. ’", "...", "32. Thus, the Venice Commission deems the obligation in the Act to obtain recognition by the Hungarian Parliament as a condition to establish a Church as a restriction of the freedom of religion.", "33. ... In the opinion of the Venice Commission, whether an obligation to have prior recognition of a two-third majority of the Hungarian Parliament in order to establish a Church in Hungary may be justified in the light of international standards is questionable.", "...", "39. The Venice Commission has already stated in another context, that reasonable access to a legal entity status with suitable flexibility to accommodate the differing organisational forms of different communities is a core element of freedom to manifest one ’ s religion.", "40. Equally important, is that, if organised as such, an entity must be able ‘ to exercise the full range of religious activities and activities normally exercised by registered non-governmental legal entities ’.", "...", "52. However, [the membership] condition may become an obstacle for small religious groups to be recognised. The difficulty arises primarily for religious groups that are organised as a matter of theology not as an extended Church, but in individual congregations. Some of these congregations may be relatively small, so that having 1,000 individuals who could sign the necessary document is difficult. ...", "53. Although the Act does not explicitly require that only members of a religious community sign the document, it is clear that this condition constitutes an obstacle for small religious groups benefiting from the protection afforded by the Act.", "54. With regard to membership requirements for registration purposes as such, the Venice Commission, on several occasions, has encouraged limited membership requirements. It has also, along with the Parliamentary Assembly of the Council of Europe ’ s recommendations, called for considering equalising the minimum number of founders of religious organisations to those of any public organisations.", "55. The requirement under consideration aims to only benefit from the protection afforded by the Act and does not concern the registration of religious groups itself. A minimum of 1,000 signatures out of a population of 10 Million is not excessive. The Austrian Constitutional Court, for instance, found that a higher threshold concerning memberships was not too high in the light of freedom of religion, and even accepted it as an admissible restriction under Article 9 ECHR.", "56. To the extent that the signature requirement does not deprive religious groups from access to legal personality as such, the Venice Commission believes that it may not be interpreted as being in breach of Article 9 ECHR.", "...", "57. Section 14.2 of the Act imposes a duration requirement of ‘ at least 100 years internationally or in an organised manner as an association in Hungary for at least 20 years ’.", "...", "64. It is clear to the Venice Commission that the general requirement that an association must have existed internationally for at least 100 years, or for at least 20 years in Hungary, is excessive, both with regard to the recognition of legal personality, and with regard to the other privileges granted to Churches. This is hardly compatible with Articles 9 and 14 ECHR. Consequently, the Venice Commission recommends revising the duration requirement in accordance with the recent benchmark judgment of the European Court of Human Rights.", "...", "70. The Venice Commission recommends deleting reference to national security in Section 14.2 and specifying with greater precision which particular law an association should comply with in order to satisfy recognition requirements.", "...", "72. The Venice Commission is worried specifically about the absence in the Act of procedural guarantees for a neutral and impartial application of the provisions pertaining to the recognition of Churches. ...", "74. According to the latest information at the disposal of the rapporteurs, Parliament adopted a Bill of Recognition on 29 February 2012, with 32 recognized Churches. It is entirely unclear to the rapporteurs and to the outside world, how and on which criteria and materials the Parliamentary Committee and Members of Parliament were able to discuss this list of 32 Churches, to settle the delicate questions involved in the definition of religious activities and Churches supplied in the Act, within a few days, without falling under the influence of popular prejudice.", "....", "76. The foregoing leads to the conclusion that the recognition or de-recognition of a Religious community (organisation) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations. Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act. Moreover, it can reasonably be expected that the composition of Parliament would vary, i.e. change after each election, which may result in new Churches being recognised, and old ones de-recognised at will, with potentially pernicious effects on legal security and the self-confidence of religious communities.", "77. It is obvious from the first implementation of the Act, that the criteria that have been used are unclear, and moreover that the procedure is absolutely not transparent. Motives of the decisions of the Hungarian Parliament are not public and not grounded. The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision). This cannot be viewed as complying with the standards of due process of law.", "...", "90. The deprivation of the legal status of Churches has to be considered as a limitation of the freedom of religion, which has to be justified in the light of the strict limitation clauses provided for in International instruments. The Venice Commission doubts that depriving Churches of the legal status they enjoyed sometimes already for many years can be seen as ‘ pressing social need ’ and ‘ proportionate to the objective pursued ’ in the sense of International standards, without providing reasons that can justify this deprivation.", "91. It is also not clear to the Venice Commission that this deprivation can be considered ‘ to be necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others ’ (Article 9.2 ECHR), or ‘ to be necessary to protect public safety, order, health, or morals or fundamental rights and freedoms of others ’ (Article 18.3 ICCPR).", "92. The Venice Commission recommends redrafting the Act in order to avoid a de ‑ registration process and provisions operating retroactively unless specific reasons can justify it. It also recommends deleting the provision on forfeiture, which constitutes an undue limitation to the right to access to legal-entity status.", "...", "103. Finally, the deprivation of the legal status of these Churches and of the rights and privileges related to that status implies moreover that Churches are not treated on an equal basis. Unless there is an ‘ objective and reasonable justification ’ for it, this unequal treatment has to be considered discriminatory under international standards.”", "41. The Venice Commission ’ s Opinion on the Fourth Amendment to the Fundamental Law of Hungary (adopted by the Venice Commission at its 95th Plenary Session (Venice, 14-15 June 2013)) contains the following passages (footnotes omitted) :", "“32. While the original version of Article VII of the Fundamental Law had been found in line with Article 9 ECHR in the Opinion on the new Constitution of Hungary, it is the procedure of parliamentary recognition of Churches that has been raised to the level of constitutional law in Article VII.2. The Commission had criticised this procedure in its Opinion on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities of Hungary ...", "33. In the Background Document, the Hungarian Government insists on the fact that parliamentary recognition of Churches does not prevent other religious communities from freely practising their religions or other religious convictions as Churches in a theological sense in the legal form of an ‘ organisation engaged in religious activities ’.", "34. In the Commission ’ s view, this statement leaves doubts concerning its scope. It must be kept in mind that religious organisations are not only protected by the Convention when they conduct religious activities in a narrow sense. Article 9.1 ECHR includes the right to practise the religion in worship, teaching, practice and observance. According to the Convention, religious organisations have to be protected, independently of their recognition by the Hungarian Parliament, not only when they engage in religious activity sensu stricto, but also when they, e.g., engage in community work, provided it has – according to settled case law – ‘ some real connection with the belief ’. Article 9 in conjunction with Article 14 ECHR obliges the ‘ State [...] to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom ’.", "35. The Background Document does not address the issue of an appeal against non ‑ recognition. The amended Article VII.2 refers to a remedy against the incorrect application of the recognition criteria: ‘ The provisions of cardinal Acts concerning the recognition of Churches may be the subject of a constitutional complaint. ’ During the meeting in Budapest, the delegation of the Venice Commission was informed that such a remedy would be introduced, but that it would be limited to the control of the recognition procedure in Parliament. It seems that such a Bill is currently being discussed in the Hungarian Parliament but was not submitted to the Venice Commission for an opinion. A merely procedural remedy is, however, clearly insufficient in view of the requirement of Article 13, taken together with Article 9 ECHR. Article VII.2 of the Fundamental Law provides substantive criteria and a review of the procedure applied does not allow for a verification of whether these criteria were followed by Parliament.", "36. The Fourth Amendment to the Fundamental Law confirms that Parliament, with a two-thirds majority, will be competent to decide on the recognition of Churches. In addition, the new criterion ‘ suitability for cooperation to promote community goals ’ lacks precision and leaves too much discretion to Parliament which can use it to favour some religions. Without precise criteria and without at least a legal remedy in case the application to be recognised as a Church is rejected on a discriminatory basis, the Venice Commission finds that there is no sufficient basis in domestic law for an effective remedy within the meaning of Article 13 ECHR.”", "42. In its 2004 Guidelines for Review of Legislation Pertaining to Religion and Belief (adopted by the Venice Commission at its 59th Plenary Session, (Venice, 18-19 June 2004)), the Venice Commission stated:", "“... III .B.3. Equality and non-discrimination. States are obligated to respect and to ensure to all individuals subject to their jurisdiction the right to freedom of religion or belief without distinction of any kind, such as race, colour, sex, language, religion or belief, political or other opinion, national or other origin, property, birth or other status. Legislation should be reviewed to assure that any differentiations among religions are justified by genuine objective factors and that the risk of prejudicial treatment is minimized or better, totally eliminated. Legislation that acknowledges historical differences in the role that different religions have played in a particular country ’ s history are permissible so long as they are not used as a justification for discrimination.", "...", "III .F.1. ... Religious association laws that govern acquisition of legal personality through registration, incorporation, and the like are particularly significant for religious organisations. The following are some of the major problem areas that should be addressed:", "...", "– High minimum membership requirements should not be allowed with respect to obtaining legal personality.", "– It is not appropriate to require lengthy existence in the State before registration is permitted.", "– Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned.", "– Provisions that grant excessive governmental discretion in giving approvals should not be allowed; official discretion in limiting religious freedom, whether as a result of vague provisions or otherwise, should be carefully limited.", "– Intervention in internal religious affairs by engaging in substantive review of ecclesiastical structures, imposing bureaucratic review or restraints with respect to religious appointments, and the like, should not be allowed. ...", "– Provisions that operate retroactively or that fail to protect vested interests (for example, by requiring re-registration of religious entities under new criteria) should be questioned.", "– Adequate transition rules should be provided when new rules are introduced.", "– Consistent with principles of autonomy, the State should not decide that any particular religious group should be subordinate to another religious group or that religions should be structured on a hierarchical pattern (a registered religious entity should not have ‘ veto ’ power over the registration of any other religious entity).”", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "43. Given that the applications raise the same issue in essence, the Court decides to join them in accordance with Rule 42 § 1 of the Rules of Court.", "II. ALLEGED VIOLATIONS OF ARTICLES 9 AND 11 OF THE CONVENTION", "44. The applicants complained under Article 11 – read in the light of Article 9 – that the deregistration and discretionary re-registration of Churches amounted to a violation of their right to freedom of religion and their right to freedom of association.", "45. The Court observes that in a recent case it examined a substantially similar complaint, concerning the refusal to re-register a religious organisation, from the standpoint of Article 11 of the Convention read in the light of Article 9 (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 74 - 75, ECHR 2006 ‑ XI ). The Court finds it appropriate to apply the same approach in the present case.", "46. Article 9 provides as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "Article 11 provides as follows:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...”", "47. The Government contested that argument.", "A. Admissibility", "48. The Government submitted several pleas for the applications to be declared inadmissible. The applicants contested these arguments.", "49. In particular, the Government argued that the applicants had not pursued all available domestic remedies. Some of them had not applied for parliamentary recognition or initiated a popular initiative ( népi kezdeményezés ) to the same end. It was true that the Constitutional Court had found this remedy to be unconstitutional in the light of the principles articulated in the Court ’ s case-law on Article 6 of the Convention; however, in the Government ’ s view, that consideration was not sufficient to exempt the applicants concerned from attempting this remedy, which had been successful in eighteen other cases.", "Moreover, the Government noted that fourteen of the applicants had pursued successful constitutional complaints challenging the 2011 Church Act, culminating in decision no. 6/2013 (III. 1.) of the Constitutional Court (see paragraphs 34 and 35 above). Therefore, those applicants which had not done so had not exhausted domestic remedies as required by Article 35 § 1 of the Convention.", "50. The Court notes that the Constitutional Court annulled the original form of the impugned legislation with retrospective effect. This resulted in a situation in which the applicant communities regained the formal status of Churches. However, with regard to the ability of Churches to receive donations and subsidies, an aspect of crucial importance from the perspective of the performance of any societal functions they may have, the grievance has not been redressed. It follows that the constitutional complaint was not capable of entirely remedying the applicants ’ grievance, whether or not they actually availed themselves of this legal avenue. Consequently, the applications cannot be rejected for non-exhaustion of this remedy.", "51. Moreover, in so far as those applicants which did not meet the statutory requirements are concerned, a request for parliamentary recognition, obviously futile, cannot be regarded as an effective remedy to be exhausted in the circumstances. In any case, the question as to whether the parliamentary procedure for recognition is a legal avenue capable of providing redress for the alleged violation is closely linked to the merits of the applications and should be examined jointly with the merits.", "52. The Government also requested the Court to dismiss application no. 41463/12 on the ground that it was incompatible ratione personae with the provisions of the Convention, since the applicant, the European Union for Progressive Judaism, an entity with its registered office in London, had never been “within the jurisdiction of Hungary” for the purposes of Article 1 of the Convention (that is, it had never been registered as a Church in Hungary and never received any State subsidies in that country).", "The Court notes that this applicant ’ s legal status was not affected by the entry into force of the 2011 Church Act and that it is free to continue to exercise its right to freedom of religion under the same legal conditions as before. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.", "53. The Government also requested the Court to dismiss the applications as being incompatible ratione personae with the provisions of the Convention in respect of those applicants which had availed themselves of a constitutional complaint. They could no longer be regarded as victims of a violation of their rights under the Convention, since the Constitutional Court had repealed the provisions affecting the applicants ’ legal status (see paragraphs 17, 18, 34 and 35 above).", "The Court notes that, notwithstanding the decision of the Constitutional Court, which declared the conversion of the existing Churches into associations to be unconstitutional as of 1 January 2012, it has not been demonstrated that the applicants have been afforded adequate redress. It further reiterates in this connection that, even in the absence of prejudice and damage, a religious association may claim to be a “victim” when the refusal of re-registration has directly affected its legal position (see Moscow Branch of the Salvation Army, cited above, §§ 64-65). The Court considers that this approach is likewise applicable to the present situation pertaining to the actual deregistration of the applicants.", "Consequently, the Court is satisfied that these applicants have retained their victim status and that the applications cannot be rejected as being incompatible ratione personae in their regard.", "54. The Government further requested that applications nos. 70945/11, 23611/12 and 41553/12 be declared inadmissible under Article 35 § 3 (a) of the Convention in respect of those applicants which had abused the right of individual petition by not submitting to the domestic courts any declaration of intention to continue their religious activities.", "The Court considers that the submission of a declaration of intention to the judicial authorities was not apt to prevent or remedy the alleged violation of the applicants ’ religious freedom, in that such declarations had, in the circumstances, no prospect of successfully restoring the applicants ’ original status. The failure of the applicants concerned to lodge such a declaration cannot be interpreted as an abuse of the right of individual petition.", "55. The Government also contended that the applications were inadmissible ratione materiae with the provisions of the Convention, since the applicants ’ legal capacity had remained unaffected and they could continue their religious activities as associations despite the loss of their Church status.", "The Court observes that the subject matter of the case is not the applicants ’ legal capacity, but rather their recognition as Churches entitled to the relevant privileges. This issue falls within the scope of Articles 9 and 11 of the Convention. The autonomous existence of the applicant religious communities, and hence the collective exercise of religion, was undeniably affected by the new system of registration (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001 ‑ XII, and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 61, 31 July 2008). Therefore, it cannot be argued that the applications are incompatible ratione materiae with the provisions of the Convention.", "56. Furthermore, the Court considers that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds, leaving aside the issue of non-exhaustion of domestic remedies (see paragraph 51 above). They must therefore be declared admissible, with the exception of application no. 41463/12.", "B. Merits", "1. The parties ’ submissions", "( a ) The Government", "57. The Government submitted that the acts and events complained of did not constitute interference with the applicants ’ right to freedom of religion and their right to freedom of association.", "58. Firstly, they noted that recognition as a Church under the 2011 Church Act did not affect the various rights associated with freedom of religion, namely the right to freedom of conscience and religion, the right to manifest one ’ s religion in community with others, freedom from discrimination on grounds of religion or belief, the right of parents to ensure education in conformity with their own convictions, the right to freedom of religion in education, social care and child care and in penal institutions, the freedom to impart religious beliefs through the media, and the protection of personal data concerning one ’ s religion. Contrary to the applicants ’ allegations, these rights, which were essential elements of freedom of religion, were not reserved for recognised Churches and their members.", "59. Secondly, the Government submitted that, in contrast to other cases previously examined by the Court, notably Moscow Branch of the Salvation Army (cited above, §§ 96-97), the legal personality of the applicant communities was not at stake in the present applications. The applicants did not dispute the fact that they had not been deprived of their legal personality. They had not been dissolved and had retained the full capacity of legal entities. Their legal personality had been converted by law into another form without any period of interruption. Therefore, there had been no interference with the applicants ’ rights under Articles 9 and 11 in this respect either.", "60. The Government further maintained that freedom to manifest one ’ s religion or beliefs under Article 9 did not confer on the applicant communities or their members any entitlement to secure additional funding from the State budget. Nor did it entail a right to receive the State subsidies that were due to Churches as such. Therefore, the loss of such subsidies could not be regarded as interference with the applicants ’ rights under Article 9 of the Convention.", "61. The Government also submitted that, even if the 2011 Church Act complained of could be regarded as interference, it was prescribed by a law adopted by a two-thirds majority of the members of parliament. The applicants ’ argument that the 2011 Church Act was invalid under public law had not been upheld by the Constitutional Court. Those provisions of the 2011 Church Act which had been found to be unconstitutional did not affect the applicants ’ situation, while other provisions complained of by the applicants had not been declared unconstitutional.", "62. Moreover, the alleged interference had pursued the legitimate aim of protecting public order and the rights and freedoms of others. After the entry into force of Act no. CXXVI of 1996 on the use of a specified amount of personal income tax in accordance with the taxpayer ’ s instructions and the 1997 Vatican Treaty regulating State financing of Church activities, the 1990 Church Act had given rise to unexpected abuses which could not be prevented in the legal context created by the 1989 Constitution. The new Act had been enacted in order to put an end to the so-called “ Church business”, in which Churches were established for the sole purpose of obtaining State subsidies for maintaining institutions providing social care or education, or even for personal gain, without conducting any genuine religious activities. By the end of 2011 there were, absurdly, 406 Churches registered in Hungary. In the light of the dwindling budgetary resources of the State and a parallel decrease in the resources available to organisations carrying out genuine religious activities, there had been a pressing social need to put an end to the abuse of Church subsidies.", "63. Furthermore, the ongoing reform of the general system of financing social and educational institutions had also required changes to the system of State financing of such institutions operated by religious communities. Accordingly, there had been a pressing social need to amend the rules on the registration of Churches.", "64. While retaining the principle that the State had to refrain from interfering with religious communities ’ self-definition in theological terms, the 2011 Church Act had defined the notion of religious activities for the purposes of the recognition of Churches as participants in the system of State- Church relations from an exclusively legal perspective. The Hungarian legislature had introduced a two-tier system of legal - entity status for religious communities similar to the model prevailing in a number of European States. Self-defined religious communities were free to operate as associations in accordance with Articles 9 and 11 of the Convention, while those religious communities which wished to establish a special relationship with the State and share the latter ’ s social responsibilities were expected to undergo an assessment of the nature of their activities by the authorities.", "65. The Government argued that their approach was in conformity with the case-law of the Convention, notably in cases where the Court had relied on the position of the domestic authorities in defining “religion” for the purposes of registration ( they referred to Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 79, ECHR 2009). Therefore, the definition of religious activities by the 2011 Church Act and the assessment of the religious nature of an organisation by the State authorities were not contrary to Article 9 of the Convention. The 2011 Church Act complied with the requirements of neutrality and impartiality since it was not based on the specific characteristics of one particular religion and was apt to ensure the recognition of a number of Churches representing a wide range of religions and religious beliefs.", "66. Prior registration as a Church in Hungary should not be regarded as decisive for the recognition of the religious nature of an organisation by the authorities, since registration as a Church under the 1990 Church Act had been based exclusively on the self-definition of the founders of the organisation, without any substantive assessment by the authorities. Such assessment had been introduced only by the 2011 Church Act, with the aim of preventing abuses resulting from this excessive deference to self ‑ definition. The Constitutional Court, in decision no. 6/2013 (III. 1.), cited examples where the judicial authorities competent in matters of Church registration under the 1990 Church Act had carried out a review of the religious nature of the activities covered by the statutes of the self-defined Churches requesting registration; however, this review had not been systematic and there had been no legal definition of religion and religious activities; therefore, there had been divergent judicial practice in this field. It was only this decision of the Constitutional Court that had made clear that, contrary to the applicants ’ allegations, the State authorities were not prohibited from verifying whether the stated beliefs and actual practices of a prospective or existing Church were genuinely of a religious nature. On the other hand, the Constitutional Court had found that further procedural guarantees should be attached to the exercise of that power by the State authorities.", "67. The Government asserted that, in spite of the findings of the Constitutional Court as to the deficiencies in the procedural guarantees, the substantive assessment of the religious nature of an organisation ’ s activities was carried out neutrally and impartially under the 2011 Church Act. The legislature had originally intended to obtain an impartial opinion from an independent institution, the Hungarian Academy of Sciences, along the lines of the procedure for recognition of national minorities. When the Academy had refused to provide the decision-makers with its expertise in the relevant fields, the parliamentary committee on religious affairs had decided to seek guidance from other independent and reliable experts, and based its decision as to whether the teachings of a candidate Church were of a religious nature on whether or not it enjoyed international recognition. Having regard to the fact that the Court also referred to the European consensus as a guiding principle in defining religion, this approach by the Hungarian authorities could not be regarded as arbitrary or as falling outside their margin of appreciation.", "68. As to the proportionality of the measures applied to achieve the above aims, the Government were of the opinion that the method of “re ‑ registration” provided for by the 2011 Church Act was the least restrictive measure possible and therefore proportionate to the aim pursued. It did not place a disproportionate burden on religious organisations: they were required only to submit a simple declaration of intention to continue their religious activities and to make some minor adjustments to their statutes in order to retain their legal personality. They also remained entitled to reclaim their status as Churches by following a simple procedure for recognition by Parliament.", "( b ) The applicants", "69. The applicants submitted that the loss of their proper Church status as a result of the 2011 Church Act had constituted interference with their freedom of religion. The proper functioning of religious communities necessitated the enjoyment of a specific and appropriate legal status, that is, Church status in the legal sense. In Hungary, religious communities had had a reasonable opportunity to be registered as Churches since 1990, and the applicants had indeed enjoyed that status. The fact that on 1 January 2012 the vast majority of Churches (including theirs ) had lost their proper Church status and had been forced to convert into ordinary civil associations or else cease to exist legally had constituted in itself interference with their freedom of religion, especially since the loss of Church status had deprived them of privileges which had facilitated their religious activities. The fact that those privileges were guaranteed henceforth only to Churches recognised by Parliament had placed them in a situation which was substantially disadvantageous vis-à-vis those Churches.", "70. The applicants claimed that the right to freedom of religion encompassed the expectation that members would be allowed to associate freely without arbitrary State intervention. Therefore, the State was prohibited from regulating State- Church relationships arbitrarily; any interference in that sphere had to be prescribed by law, pursue a legitimate aim and be necessary in a democratic society. The requirements relating to the registration of Churches had to be objective and reasonable, because in this matter the State was required to remain neutral and impartial. Consequently, if a religious community met the legal requirements it had to be entitled to be registered as a Church, and the registration procedure had to offer guarantees of fairness.", "71. However, the conditions and procedure governing their re ‑ registration as Churches had not only become stricter in comparison to the system under the 1990 Church Act, but had also become unreasonably burdensome and unfair, allowing Parliament to thwart their attempts at re ‑ registration arbitrarily, on the basis of political considerations.", "72. As to the condition requiring an established existence over a long period, the applicants conceded that it was objective but nonetheless argued that this criterion was unreasonable. They pointed out that the communist regime had ended little more than twenty years previously in Hungary. Prior to that, it had hardly been possible for new religious movements to form and exist in the country. Consequently, virtually all new religious movements were excluded from the advantages of becoming a “ Church ”, in breach of Article 9.", "73. In addition, the 2011 Church Act included less objective criteria as well, notably the requirement that the operation of the religious community should not pose any threat to national security and that its principles should not violate the right to health, the protection of life or human dignity. The applicants ’ re-registration requests had been dismissed although there had been no evidence that they posed any threat to the State or public order.", "74. In view of the above, the applicants emphasised that, under the 2011 Church Act, a religious community could be denied registration even if it met the applicable objective criteria, a situation which disclosed arbitrariness.", "2. The Court ’ s assessment", "( a ) General principles", "75. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. While religious freedom is primarily a matter of individual conscience, it also implies freedom to “manifest [one ’ s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 - I).", "76. The Court does not deem it necessary to decide in abstracto whether acts of formal registration of religious communities constitute interference with the rights protected by Article 9 of the Convention. However, it emphasises that the State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs (see Metropolitan Church of Bessarabia, cited above, § 116, and Religionsgemeinschaft der Zeugen Jehovas, cited above, § 97). Facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers ’ freedom to manifest their religion within the meaning of Article 9 of the Convention. The Court reiterates that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § § 77 ‑ 78, ECHR 2000 - XI ). Indeed, the State ’ s duty of neutrality and impartiality, as defined in the Court ’ s case-law, is incompatible with any power on the State ’ s part to assess the legitimacy of religious beliefs (see Metropolitan Church of Bessarabia and Others, cited above, § 123).", "77. In this context Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. The Court reiterates its findings in this respect in Hasan and Chaush (cited above, § 62):", "“The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one ’ s religion, protected by Article 9 of the Convention.", "Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers ’ right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual ’ s freedom of religion would become vulnerable .”", "78. The Court further reiterates that the ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning. The Court has consistently held the view that a refusal by the domestic authorities to grant legal-entity status to an association of individuals amounts to interference with the applicants ’ exercise of their right to freedom of association (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 52 et passim, ECHR 2004 ‑ I, and Sidiropoulos and Others v. Greece, 10 July 1998, § 31 et passim, Reports of Judgments and Decisions 1998 ‑ IV). States have a right to satisfy themselves that an association ’ s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others, cited above, § 40). Where the organisation of the religious community was in issue, a refusal to recognise it was also found to constitute interference with the applicants ’ right to freedom of religion under Article 9 of the Convention (see Metropolitan Church of Bessarabia and Others, cited above, § 105).", "79. The State ’ s power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”; thus, the notion “necessary” does not have the flexibility of such expressions as “useful” or “desirable” (see Gorzelik and Others, cited above, §§ 94-95, with further references).", "80. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998 ‑ I, and Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005 ‑ I ).", "( b ) Application of the above principles to the present case", "( i ) Whether there was interference", "81. The Court observes that the applicant communities had lawfully existed and operated in Hungary as Churches registered by the competent court in conformity with the 1990 Church Act. The 2011 Church Act changed the status of all previously registered Churches, except those recognised Churches listed in the Appendix to the 2011 Church Act, into associations. If intending to continue as Churches, religious communities were required to apply to Parliament for individual recognition as such.", "82. The Court has found in two previous cases (see Moscow Branch of the Salvation Army, cited above, § 67, and Church of Scientology Moscow v. Russia, no. 18147/02, § 78, 5 April 2007) that the refusal of re ‑ registration disclosed interference with a religious organisation ’ s right to freedom of association and also with its right to freedom of religion.", "83. The Court considers that the measure in issue in the present case effectively amounted to the deregistration of the applicants as Churches and constituted interference with their rights enshrined in Articles 9 and 11. It must therefore determine whether the interference satisfied the requirements of paragraph 2 of those provisions, that is, whether it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” (see, among many other authorities, Metropolitan Church of Bessarabia and Others, cited above, § 106).", "84. The State ’ s power in this field must be used sparingly; exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. In this connection, the Court reiterates its position as formulated in the cases of Gorzelik and Others (cited above, §§ 94-95) and Jehovah ’ s Witnesses of Moscow v. Russia ( no. 302/02, § 100, 10 June 2010). The burden of proof when it comes to demonstrating the presence of compelling reasons is on the respondent Government (see, mutatis mutandis, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 ). It is therefore for the Government to show in the instant case that it was necessary, in pursuit of the legitimate aims which they relied on, to bar already recognised Churches from maintaining their status with regard to confessional activities, that is, the manifestation of religion.", "( ii ) Prescribed by law", "85. This issue was not in dispute between the parties. The Court is satisfied that the interference complained of was prescribed by law, namely by the 2011 Church Act.", "( iii ) Legitimate aim", "86. The Government submitted that the impugned interference, if any, could be regarded as pursuing the legitimate aims of protection of the rights and freedoms of others and the protection of public order, within the meaning of Article 9 § 2, namely, by eliminating entities claiming to pursue religious ends but in fact striving only for financial benefits. The applicants contested this view.", "The Court considers that the measure in question can be considered to serve the legitimate aim of preventing disorder and crime for the purposes of Article 11 § 2, notably by attempting to combat fraudulent activities.", "( iv ) Necessary in a democratic society", "( α ) Width of the margin of appreciation", "87. With regard to the Government ’ s reliance on the principle articulated in Kimlya and Others ( cited above, § 79 ), according to which the disputed nature of Scientology teachings made it necessary to defer to the national authorities ’ assessment thereof, the Court notes that in that case the lack of European consensus was considered to be demonstrated by the fact that the authorities in various countries had initiated proceedings against the representatives of that religious group. In the Court ’ s view, these actions demonstrated the presence of an actual official dispute regarding the religious nature of the teachings. It is in this particular context that the disputed character of a purported religion may entail a wide margin of appreciation on the State ’ s part in assessing its teachings.", "88. However, the Court is of the view that this approach cannot automatically be transposed to situations where a religious group is simply not recognised legally as a fully fledged Church in one or more European jurisdictions. This mere absence of apparent consensus cannot give rise to the same degree of deference to the national authorities ’ assessment, especially when the matter concerns the framework of organisational recognition of otherwise accepted religions (formerly fully fledged Churches ) rather than the very acceptance of a certain set of controversial teachings as a religion. To hold otherwise would mean that non-traditional religions could lose the Convention ’ s protection in one country essentially due to the fact that they were not legally recognised as Churches in others. This would render the guarantees afforded by Articles 9 and 11 largely illusory in terms of guaranteeing proper organisational forms for religions.", "89. The Court therefore considers that, although States have a certain margin of appreciation in this field, this cannot extend to total deference to the national authorities ’ assessment of religions and religious organisations; the applicable legal solutions adopted in a member State must be in compliance with the Court ’ s case-law and subject to the Court ’ s scrutiny.", "( β ) Positive obligations", "90. The Court considers that there is a positive obligation incumbent on the State to put in place a system of recognition which facilitates the acquisition of legal personality by religious communities. This is a valid consideration also in terms of defining the notions of religion and religious activities. In the Court ’ s view, those definitions have direct repercussions on the individual ’ s exercise of the right to freedom of religion, and are capable of restricting the latter if the individual ’ s activity is not recognised as a religious one. According to the position of the United Nations Human Rights Committee (see paragraph 39 above), such definitions cannot be construed to the detriment of non-traditional forms of religion – a view which the Court shares. In this context, it reiterates that the State ’ s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State ’ s part to assess the legitimacy of religious beliefs (see Metropolitan Church of Bessarabia and Others, cited above, §§ 118 and 123, and Hasan and Chaush, cited above, § 62). However, the present case does not concern the definition of religion as such in Hungarian law.", "91. The Court further considers that there is no right under Article 11 in conjunction with Article 9 for religious organisations to have a specific legal status. Articles 9 and 11 of the Convention only require the State to ensure that religious communities have the possibility of acquiring legal capacity as entities under the civil law; they do not require that a specific public-law status be accorded to them.", "92. Distinctions in the legal status granted to religious communities must not portray their adherents in an unfavourable light in public opinion, which is sensitive to the official assessment of a religion – and of the Church incarnating it – made by the State in public life. In the traditions of numerous countries, designation as a Church and State recognition are the key to social standing, without which the religious community may be seen as a dubious sect. In other words, the refusal to recognise a religious community as a Church may amplify prejudices against the adherents of such, often small, communities, especially in the case of religions with new or unusual teachings.", "93. When assessing differences in legal status and the resulting treatment between religious communities in terms of cooperation with the State (where the State, within its margin of appreciation, chooses a constitutional model of cooperation), the Court further notes that these distinctions have an impact on the community ’ s organisation and hence on the practice of religion, individually or collectively. Indeed, religious associations are not merely instruments for pursuing individual religious ends. In profound ways, they provide a context for the development of individual self-determination and serve pluralism in society. The protection granted to freedom of association for believers enables individuals to follow collective decisions to carry out common projects dictated by shared beliefs.", "94. The Court cannot overlook the risk that the adherents of a religion may feel merely tolerated – but not welcome – if the State refuses to recognise and support their religious organisation whilst affording that benefit to other denominations. This is so because the collective practice of religion in the form dictated by the tenets of that religion may be essential to the unhampered exercise of the right to freedom of religion. In the Court ’ s view, such a situation of perceived inferiority goes to the freedom to manifest one ’ s religion.", "( γ ) Deregistration of the applicant religious communities", "95. The Court notes that the immediate effect of the enactment of the 2011 Church Act was that the applicant entities, formerly fully fledged Churches eligible to benefit from privileges, subsidies and donations, lost that status and were relegated to, at best, the status of associations, which largely lack those possibilities. It is true that the subsequent ruling of the Constitutional Court nominally put an end to this interference. In the Government ’ s submission, this provided full redress for the alleged grievance; however, the applicants argued that they could never again enjoy their former status unimpaired.", "96. When assessing this effective deregistration of the applicant communities, it is important to note that they had previously been recognised as Churches by the Hungarian authorities under legislation which had been in force at the time of Hungary ’ s accession to the Convention system and which remained applicable until the entry into force of the 2011 Church Act.", "Moreover, the Court notes – while recognising the Government ’ s legitimate concern regarding the problems connected with the large number of Churches formerly existing in the country (see paragraph 62 above) – that it has not been demonstrated by the Government that less drastic solutions to the problem perceived by the authorities, such as the judicial control or dissolution of Churches proven to be of an abusive character, were not available.", "97. The Court cannot but observe that the outcome of the impugned legislation was to deprive existing and operational Churches of their legal framework, in some cases with far-reaching consequences in material terms and in terms of their reputation.", "( δ ) Possibility of re-registration for the applicant communities", "98. The Court notes that under the legislation in force, there is a two-tier system of Church recognition in place in Hungary. A number of Churches, the so-called incorporated ones, enjoy full Church status including entitlement to privileges, subsidies and tax donations. The remaining religious associations, although free to use the label “ Church ” since August 2013, are in a much less privileged position, with only limited possibilities to move from this category to that of an incorporated Church. The applicants in the present case, formerly fully -fledged Churches, now belong to the second category, with substantially reduced rights and material possibilities to manifest their religion, when compared either with their former status or with the currently incorporated Churches.", "99. The Court notes the Government ’ s arguments, which seem to focus on the one hand on the feasibility of moving to incorporated Church status, and on the other hand on the reasonableness of the conditions attached to such a move, notably the objective criteria relating to the Church ’ s length of existence and minimum membership and the absence of a threat to national security as ultimately decided by Parliament.", "100. As to the two-tier system of Church recognition, the Court is satisfied that such a scheme may per se fall within the States ’ margin of appreciation (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 138, ECHR 2013). Nevertheless, any such scheme normally belongs to the historical-constitutional traditions of those countries which operate it, and a State - Church system may be considered compatible with Article 9 of the Convention in particular if it is part of a situation pre ‑ dating the Contracting State ’ s ratification of the Convention (see Darby v. Sweden, 23 October 1990, opinion of the Commission, § 45, Series A no. 187 ).", "For example, the Court has previously accepted that additional funding from the State budget to the State Church did not violate the Convention, in view, among other considerations, of the fact that the employees of the State Church were civil servants with rights and obligations in that capacity with regard to the general public and not just to the members of their congregations (see Ásatrúarfélagið v. Iceland (dec.), no. 22897/08, § 34, 18 September 2012). On a more general note the Court would add that the funding of Churches and other material or financial benefits granted to them, while not incompatible with the Convention, must not be discriminatory or excessive, that is, clearly disproportionate to those received for comparable activities by other organisations in a given society.", "101. However, in the present case the Court finds that the Government have not adduced any convincing evidence to demonstrate that the list of incorporated Churches contained in the Appendix to the 2011 Church Act as currently applicable reflects Hungarian historical tradition fully, in that it does not encompass the applicant religious communities and can be understood to refer back to the state of affairs prevailing in 1895 (see the excerpts from the minutes of the relevant debate in the competent parliamentary committee in paragraph 37 above) while disregarding more recent historical developments.", "102. The Court notes that decisions on the recognition of incorporated Churches lie with Parliament, an eminently political body, which has to adopt those decisions by a two-thirds majority. The Venice Commission has observed that the required votes are evidently dependent on the results of elections (see paragraph 40 above, at point 76). As a result, the granting or refusal of Church recognition may be related to political events or situations. Such a scheme inherently entails a disregard for neutrality and a risk of arbitrariness. A situation in which religious communities are reduced to courting political parties for their votes is irreconcilable with the requirement of State neutrality in this field.", "103. The Court considers that the applicant religious communities cannot reasonably be expected to submit to a procedure which lacks the guarantees of objective assessment in the course of a fair procedure by a non-political body. Their failure to avail themselves of this legal avenue cannot therefore result in their applications being declared inadmissible for non-exhaustion of domestic remedies, especially if the applicants in question could not objectively meet the requirements in terms of the length of their existence and the size of their membership.", "The Government ’ s objection of non-exhaustion of domestic remedies in this regard (see paragraph 49 above) must therefore be dismissed.", "104. Leaving aside the potential for the re-registration procedure to be tainted by political bias, the Court has found that the refusal of registration for failure to present information on the fundamental principles of a religion may be justified in the particular circumstances of a case by the need to determine whether the denomination seeking recognition presents any danger for a democratic society (see Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (dec.), no. 12282/02, 14 June 2005). However, in the present case the Court observes that the Government gave no reason for the requirement to scrutinise afresh already active Churches from the perspective of their possible dangerousness to society, still less the requirement to verify the content of their teachings, as required implicitly under the 2011 Church Act (see section 14, as amended, in paragraphs 29 and 32 above). Nor did they demonstrate any evidence of actual danger on the part of the applicant entities ( compare Church of Scientology Moscow, cited above, § 93). The Court notes that by the material time the applicants had been lawfully operating in Hungary as religious communities for several years. There is no evidence before the Court that during that time any procedure had been set in motion by the authorities seeking to challenge the applicants ’ existence, notably on the ground that they were operating unlawfully or abusively. The reasons for requiring them to re-register should therefore have been particularly weighty and compelling (see Church of Scientology Moscow, cited above, § 96, and Moscow Branch of the Salvation Army, cited above, § 96). In the present case no such reasons have been put forward by the domestic authorities.", "105. However, even assuming that there were such weighty and compelling reasons, the Court cannot but conclude that the applicant religious groups were not offered a fair opportunity (see Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, § 92) to obtain the level of legal recognition sought, notably in view of the political nature of the procedure.", "( ε ) Possibilities for the applicant communities to enjoy material advantages in order to manifest their religion and cooperate with the State in that regard", "106. The Court observes that the freedom to manifest one ’ s religion or beliefs under Article 9 does not confer on the applicant associations or their members an entitlement to secure additional funding from the State budget (see Ásatrúarfélagið, cited above, § 31), but that subsidies which are granted in a different manner to various religious communities – and thus, indirectly, to various religions – call for the strictest scrutiny (see, mutatis mutandis, Gorzelik and Others, cited above, § 95).", "107. The Court has already recognised that the privileges obtained by religious societies, in particular in the field of taxation, facilitate their pursuance of religious aims (see Association Les Témoins de Jéhovah v. France, no. 8916/05, §§ 49 and 52-53, 30 June 2011) and that there is therefore an obligation incumbent on the State authorities under Article 9 of the Convention to remain neutral in the exercise of their powers (see Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, § 92) when it comes to allocating these resources and granting these privileges. Where, in pursuit of its perceived positive obligations with regard to Articles 9 and 11, the State has voluntarily decided to afford entitlement to subsidies and other benefits to religious organisations – such entitlement thus falling within the wider ambit of those Convention Articles – it cannot take discriminatory measures in the granting of those benefits (see, mutatis mutandis, E.B. v. France [GC], no. 43546/02, §§ 48-49, 22 January 2008, and Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 58, 9 December 2010 ). Similarly, if the State decides to reduce or withdraw certain benefits to religious organisations, such a measure may not be discriminatory either.", "108. In the Court ’ s view, States must be left considerable liberty in choosing the forms of cooperation with the various religious communities, especially since the latter differ widely from each other in terms of their organisation, the size of their membership and the activities stemming from their respective teachings. This is particularly so in selecting the partners with which the State intends to collaborate on certain activities. The above prerogative of the State assumes even greater importance when it comes to public, societal tasks undertaken by religious communities but not directly linked to their spiritual life (that is, not related to, for example, charitable activities flowing from their religious duties). In this context, States enjoy a certain margin of appreciation when shaping collaboration with religious communities. At this juncture, the Court notes the particular context of Hungarian State- Church relations, and in particular the fact that Hungarian Churches were subjected to measures depriving them of their rights after 1945 (see the preambles to the two Acts cited in paragraph 33 above).", "109. In its choice of partners for the purpose of outsourcing public - interest tasks, the State may not discriminate between religious communities. The neutrality of the State requires that, where the State chooses to cooperate with religious communities, the choice of partners must be based on ascertainable criteria relating, for example, to their material capacities. Distinctions made by the State with regard to recognition, partnerships and subsidies must not produce a situation in which the adherents of a religious community feel like second-class citizens, for religious reasons, on account of the State ’ s less favourable stance towards their community.", "110. The Court observes that under Hungarian law incorporated Churches enjoy preferential treatment, in particular in the field of taxation and subsidies (see section 20 of the 2011 Church Act, cited in paragraph 32, and also paragraph 33). The advantages obtained by incorporated Churches are substantial and facilitate their pursuance of religious aims on account of their special organisational form.", "111. In the Court ’ s view, the freedom afforded to States in regulating their relations with Churches should include the possibility of modifying such privileges by means of legislative measures. However, this freedom cannot extend so far as to encroach upon the neutrality and impartiality required of the State in this field.", "In the present case, the withdrawal of benefits ( resulting from the deregistration of Churches and the consequent lack of incorporated Church status) concerned only certain denominations, including the applicants. It is true that the applicant communities do not appear to fulfil the cumulative criteria established by the lawmaker, notably as regards the minimum number of members and the minimum length of existence. These criteria have arguably placed the applicants, some of which are new and/or small communities, in a disadvantageous situation which is at odds with the requirements of neutrality and impartiality. As regards the question of the duration of religious groups ’ existence, the Court accepts that the stipulation of a reasonable minimum period may be necessary in the case of newly established and unknown religious groups. But it is hardly justified in the case of religious groups which were established once restrictions on confessional life were lifted after the end of the communist regime in Hungary and which must be familiar to the competent authorities by now, whilst just falling short of the required period of existence. In this connection the Court notes the Venice Commission ’ s view according to which the relevant periods are excessive (see paragraph 40 above).", "112. The Court finds no indication that the applicants are prevented from practising their religion as legal entities, that is, as associations, a status which secures their formal autonomy vis-à-vis the State. Nevertheless, under the legislation in force, certain religious activities performed by Churches are not available to religious associations, a factor which in the Court ’ s view has a bearing on the latter ’ s right to collective freedom of religion. The Court notes in this connection that, in decision no. 6/2013 (III. 1.), the Constitutional Court identified, in a non-exhaustive list, eight privileges conferred only on Churches (see points 158 to 167 of the decision, cited in paragraph 34 above). In particular, only incorporated Churches are entitled to the 1% of personal income tax earmarked by believers and to the corresponding State subsidy. These sums are intended to support faith-related activities. For that reason the Court finds that such differentiation fails to satisfy the requirement of State neutrality and is devoid of objective grounds. Such discrimination imposes a burden on believers of smaller religious communities without any objective and justifiable reason.", "113. In this connection, the Court adds that wherever the State, in conformity with Articles 9 and 11, legitimately decides to retain a system in which the State is constitutionally mandated to adhere to a particular religion (see Darby, cited above), as is the case in some European countries, and it provides State benefits only to some religious entities and not to others in the furtherance of legally prescribed public interests, this must be done on the basis of reasonable criteria related to the pursuance of public interests (see, for example, Ásatrúarfélagið, cited above ).", "114. In view of these considerations, the Court finds it unnecessary to examine possible discrimination with regard to the operation of cemeteries, religious publications and the production and sale of religious objects, which are often related to religious practice. It likewise finds it unnecessary to examine the differences in the possibilities for teaching religion, employment or cooperation with the State on public-interest activities.", "( ζ ) Conclusion", "115. The Court concludes that, in removing the applicants ’ Church status altogether rather than applying less stringent measures, in establishing a politically tainted re-registration procedure whose justification as such is open to doubt and, finally, in treating the applicants differently from the incorporated Churches not only with regard to the possibilities for cooperation but also with regard to entitlement to benefits for the purposes of faith-related activities, the authorities disregarded their duty of neutrality vis-à-vis the applicant communities. These elements, taken in isolation and together, are sufficient for the Court to find that the impugned measure cannot be said to correspond to a “pressing social need”.", "There has therefore been a violation of Article 11 of the Convention read in the light of Article 9.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLES 9 AND 11", "116. The applicants further complained under Article 14 of the Convention, read in conjunction with Articles 9 and 11, that they had been discriminated against on account of their position as religious minorities.", "Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "117. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III, and Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45).", "118. In the circumstances of the present case the Court considers that the inequality of treatment of which the applicants claimed to be victims has been sufficiently taken into account in the above assessment leading to the finding of a violation of substantive Convention provisions (see, in particular, paragraph 115 above). It follows that – although this complaint is also admissible – there is no cause for a separate examination of the same facts from the standpoint of Article 14 of the Convention (see Metropolitan Church of Bessarabia, cited above, § 134, and Church of Scientology Moscow, cited above, § 101).", "IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 READ ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "119. In applications nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12 and 41463/12, the applicants further complained under Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention, about the loss of State subsidies owing to the loss of their former Church status.", "Article 1 of Protocol No. 1 provides as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” ...", "120. The Government contested that argument.", "121. The Court considers that the problem of access to State funds paid to Churches is to a large extent identical to the issues examined in the context of Articles 9 and 11 of the Convention. The privileges denied to the applicant associations have been sufficiently taken into account in that context (see paragraphs 106 to 115 above), especially since the pecuniary claims the applicants made under this head are not different from their Article 41 claims submitted in respect of the alleged violations of Articles 9 and 11 of the Convention. It follows that – although these complaints are also admissible – there is no cause for a separate examination of the same facts from the standpoint of Article 1 of Protocol No. 1 read alone or in conjunction with Article 14 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "122. The applicants complained that the procedure with regard to the deregistration and re-registration of their entities as Churches was unfair, in breach of Article 6 § 1 of the Convention.", "Article 6 § 1 of the Convention provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "123. The Court considers that, in the light of its findings concerning Articles 11 and 9 of the Convention (see paragraph 115 above), it is not necessary to examine separately either the admissibility or the merits of this complaint.", "VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "124. The applicants also complained that there was no effective remedy available to them by which to complain of the legislation in question, in breach of Article 13 of the Convention.", "The Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention (see, among other authorities, Vallianatos, cited above, § 94; Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X; and Paksas v. Lithuania [GC], no. 34932/04, § 114, ECHR 2011). In the instant case, the applicants ’ complaint under Article 13 is at odds with this principle. Consequently, this complaint is manifestly ill-founded and as such must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "125. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "126. The applicants claimed the following sums in respect of pecuniary damage:", "(i) in application no. 23611/12: Evangéliumi Szolnoki Gyülekezet Egyház – 33,579,732 Hungarian forints (HUF) (approximately 111,900 euros (EUR)); Mr Soós – a monthly sum of HUF 159,080 (EUR 530) from 29 February 2012 until the decision of the Court;", "(ii) in application no. 26998/12: Budapesti Autonóm Gyülekezet – HUF 27,225,032 (EUR 90,750); Mr Görbicz – a monthly sum of HUF 160,000 (EUR 530) from 1 June 2012 until the decision of the Court;", "(iii) in application no. 41150/12: Szim Salom Egyház – HUF 96,965,719 (EUR 323,200);", "(iv) in application no. 41155/12: Magyar Reform Zsidó Hitközségek Szövetsége Egyház – HUF 50,653,431 (EUR 168,850);", "(v) in application no. 54977/12: Magyarországi Evangéliumi Testvérközösség – HUF 1,461,192,932 (EUR 4,710,000);", "(vi) in application no. 41553/12:", "(a) ANKH Az Örök Élet Egyháza – HUF 2,491,432 (EUR 8,300);", "(b) Árpád Rendjének Jogalapja Tradicionális Egyház – HUF 3,415,725 (EUR 11,400);", "(c) Dharmaling Magyarország Buddhista Egyház – HUF 10,261,637 (EUR 34,200);", "(d) Fény Gyermekei Magyar Esszénus Egyház – HUF 8,855,523 (EUR 29,500);", "(e) Mantra Magyarországi Buddhista Egyháza – HUF 18,203,096 (EUR 60,700);", "(f) Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház – HUF 2,099,453 (EUR 7,000);", "(g) Univerzum Egyháza – HUF 5,665,877 (EUR 18,900);", "(h) Usui Szellemi Iskola Közösség Egyház – HUF 114,822,096 (EUR 382,750);", "(i) Út és Erény Közössége Egyház – HUF 4,937,194,474 (EUR 16,457,300).", "These sums allegedly correspond in essence to the tax donations and the State subsidies lost or expected to be lost in the future, in various ways, on account of the impugned legislation. In respect of Mr Soós and Mr Görbicz, the claims relate to their lost remuneration as ministers.", "127. In respect of non-pecuniary damage, the applicants claimed the following sums:", "(i) Magyar Keresztény Mennonita Egyház (no. 70945/11), Evangéliumi Szolnoki Gyülekezet Egyház (no. 23611/12), Budapesti Autonóm Gyülekezet (no. 26998/12), Szim Salom Egyház (no. 41150/12), Magyar Reform Zsidó Hitközségek Szövetsége Egyház (no. 41155/12) and Magyarországi Biblia Szól Egyház (no. 56581/12): EUR 70,000 each;", "(ii) Mr Izsák-Bács (no. 70945/11), Mr Soós (no. 23611/12), Mr Görbicz (no. 26998/12), Mr Guba (no. 41150/12) and Ms Bruck (no. 41155/12): EUR 30,000 each;", "(iii) in application no. 41553/12: EUR 100,000 for each applicant.", "128. The applicants claimed the following sums in respect of the costs and expenses incurred before the Court :", "(i) in application nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12 and 56581/12, the applicants claimed, jointly, EUR 41,910, corresponding to 165 hours ’ legal work billable by their lawyer at an hourly rate of EUR 200 plus VAT;", "(ii) in application no. 54977/12, the applicant claimed EUR 5,250 for 35 hours ’ legal work billable by its lawyer at an hourly rate of EUR 150 plus VAT;", "(iii) in application no. 41553/12, the applicants claimed, jointly, EUR 18,000, corresponding to 120 hours ’ legal work billable by their lawyer at an hourly rate of EUR 150 plus VAT.", "129. The Government contested these claims as excessive.", "130. The Court considers that, as regards the claims in respect of non ‑ pecuniary damage made by Mr Izsák-Bács (no. 70945/11), Mr Soós (no. 23611/12), Mr Görbicz (no. 26998/12), Mr Guba (no. 41150/12) and Ms Bruck (no. 41155/12), the finding of a violation constitutes sufficient just satisfaction.", "131. The Court further considers that the remaining questions as to the application of Article 41 are not ready for decision, especially in view of the complex array of material advantages which the applicants claimed to have lost. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).", "132. Accordingly, the Court reserves these questions and invites the Government and the applicants to notify it, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955 and lives in Naples.", "6. The applicant is Jewish and a lawyer by profession. On 7 June 2005 he appeared before the Forli investigating judge at a hearing concerning a request for the immediate production of evidence (“ incidente probatorio ”) in his capacity as representative of one of the two complainants in criminal proceedings against several banks. The investigating judge in charge of the case was prevented from sitting and his replacement invited the parties to choose between two dates for the adjourned hearing – either 13 or 18 October 2005 – already identified by the investigating judge.", "7. The applicant pointed out that both dates coincided with Jewish religious holidays (Yom Kippur and Sukkot respectively) and stated that he would be unable to attend the adjourned hearing because of his religious obligations. He explained that he was a member of the Naples Jewish community, and alleged a breach of sections 4 and 5 of Law no. 101 of 8 March 1989 governing relations between the State and the Union of Italian Jewish communities.", "8. The investigating judge set the hearing down for 13 October 2005.", "9. The same day the applicant lodged an application with the investigating judge in charge of the case to have the hearing adjourned. On 20 June 2005, after examining the application, the judge decided to add it to the case file without ruling on it.", "10. On 11 July 2005 the applicant lodged a criminal complaint against the investigating judge in charge of the case and his replacement, alleging that they had breached section 2 of Law no. 101 of 1989. The same day he informed the Supreme Council of the Judiciary about the complaint.", "11. At the hearing of 13 October 2005, the investigating judge noted that the applicant was absent for “personal reasons” and asked the parties to express their views on the application for an adjournment made on 7 June. The prosecution and counsel for the defendants objected to the application, arguing in particular that it was not based on any of the statutory grounds for adjournment. However, counsel for the other complainant supported the applicant’s request.", "12. In an order issued the same day the investigating judge rejected the application for an adjournment. He noted at the outset that, under Article 401 of the Code of Criminal Procedure, only the prosecution and counsel for the defendant were required to be present at hearings concerning the immediate production of evidence; the presence of counsel for the complainant was optional. He went on to observe that the Code of Criminal Procedure did not oblige the judge to adjourn a hearing where counsel for the complainant had legitimate reasons for being unable to appear. Lastly, he stressed that a large number of individuals were involved in the proceedings (the defendants, the complainants, court-appointed experts and experts appointed by the parties) and that, “in view of the heavy workload of the office, which would [have meant] adjourning the hearing until 2006, the application, submitted by an individual with no legitimate reason to request an adjournment, ha[d] to be rejected in accordance with the principle that cases should be heard within a reasonable time”.", "13. On 23 January 2006 the Supreme Council of the Judiciary informed the applicant that it was not competent to examine the matter since the applicant’s complaints related to the exercise of judicial activity.", "14. In the meantime, on 9 January 2006, the Ancona public prosecutor’s office had requested that no further action be taken on the applicant’s complaint. The applicant objected to this request on 28 January 2006.", "15. On 21 September 2006 the Ancona investigating judge made an order discontinuing the proceedings concerning the applicant’s complaint, noting that the applicant had not objected to the request for no further action submitted by the public prosecutor’s office.", "16. On 19 January 2007 the applicant lodged an appeal on points of law, complaining of the investigating judge’s failure to take account of the objection he had lodged on 28 January 2006. The Court of Cassation, observing that the failure to take the applicant’s objection into account had probably been due to a registry error, set aside the order of 21 September 2006 and referred the case back to the Ancona District Court.", "17. On 12 February 2008 the applicant and the prosecution attended a hearing before the Ancona investigating judge. On 15 February 2008 the latter issued an order discontinuing the proceedings. He noted that there was nothing in the case file to suggest that the investigating judge in charge of the case or the judge who had replaced him at the hearing of 7 June 2005 had had any intention of infringing the applicant’s right to practise his Jewish faith freely or of offending the applicant’s dignity on account of his religious faith." ]

[ "II. RELEVANT DOMESTIC LAW", "18. Law no. 101 of 8 March 1989 contains provisions governing relations between the State and the Union of Italian Jewish communities. Section 2 recognises the right to practise and manifest the Jewish religion freely. Under section 4, Italy grants persons of Jewish faith who so request the right to observe the Sabbath, in the context of flexible working arrangements and without prejudice to the requirements of the essential services provided for by the State legal system.", "Section 5 of Law no. 101 states that Yom Kippur, Sukkot and other Jewish religious holidays are to be treated in the same way as the Sabbath.", "19. According to the fifth paragraph of section 2 of the Law, manifestations of religious intolerance and prejudice are punishable by the penalties provided for in section 3 of Law no. 654 of 1975, which is the Law ratifying the International Convention on the Elimination of all Forms of Racial Discrimination. Under the latter provision, anyone who disseminates ideas based on superiority or on racial or ethnic hatred, or incites others to commit acts of racial, ethnic, national or religious discrimination, is liable to a prison sentence of up to eighteen months.", "20. The first paragraph of Article 401 of the Code of Criminal Procedure, which governs the procedure for the immediate production of evidence (“ incidente probatorio ”) reads as follows:", "“The hearing shall take place in private. The public prosecutor and counsel for the defendant shall be required to attend. Counsel for the injured party shall also have the option of attending.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "21. The applicant alleged that the refusal of the judicial authority to adjourn the hearing in question, which had been listed for a date corresponding to a Jewish religious holiday, had prevented him from appearing in his capacity as representative of one of the complainants and had infringed his right to manifest his religion freely. He relied on Article 9 §§ 1 and 2 of the Convention, which provide:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "22. The Government contested that argument.", "...", "B. Merits", "1. The parties’ submissions", "29. The applicant contended that the judges dealing with his case had acted with the intention of infringing his right to manifest his religion freely.", "30. In his view, he was entitled under Law no. 101 of 1989 to be absent from work on official Jewish religious holidays in order to be able to practise his religion freely. Furthermore, no indispensable-service requirement could be relied upon in the instant case as justification for restricting that right, since the hearing of 13 October 2005 could have been adjourned for another date without adversely affecting the proper conduct of the proceedings and the rights of the other participants in the trial. Since it had not related to a detention measure or to the rights of a person in detention, the hearing in question had not been in any way urgent. As the request for an adjournment had been made four months in advance, the authorities had had ample time to organise the timetable of hearings in such a way as to ensure respect for the various rights at stake.", "31. The Government, for their part, submitted that there had been no interference with the applicant’s right to manifest his religion freely since he had never been prevented from taking part in Jewish festivals and practising his religion freely. The authorities had simply sought to ensure that the applicant did not hamper the smooth operation of essential State services in exercising his right to request that the hearing be adjourned.", "32. In the Government’s view, the right relied on by the applicant was not of an absolute nature. Although Law no. 101 of 1989 concerned the professional relationship between lawyers and the courts, it was a fact that the second paragraph of section 4 of the Law stated explicitly that essential-service requirements took precedence over the right of individuals to practise their religion freely. The administration of justice was an essential State service which had to take priority in all circumstances.", "Furthermore, the attendance of counsel for the injured party at a hearing concerning the immediate production of evidence was not compulsory. In any event, a lawyer who was prevented from attending a hearing for personal reasons could appoint a replacement under the terms of Article 102 of the Code of Criminal Procedure. In choosing not to avail himself of that option, the applicant had declined to reconcile his religious obligations with the requirements of the proper administration of justice.", "33. Lastly, the adjournment of the hearing in question had been liable to affect adversely the proper conduct of the proceedings and to infringe the right of the twenty-one defendants to be tried within a reasonable time, since, had the request for adjournment been accepted, notice of the new hearing date would have had to be sent out to the large number of persons involved in the trial in various capacities.", "2. The Court’s assessment", "34. The Court reiterates that while religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion not only in community with others, in public and within the circle of those whose faith one shares, but also alone and in private (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A). Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997 ‑ IV, and Kosteski v. “the former Yugoslav Republic of Macedonia”, no. 55170/00, § 37, 13 April 2006).", "35. Thus, for instance, the protection afforded by Article 9 was found not to extend to the dismissal of a public servant who failed to adhere to his working hours on the grounds that the Seventh-day Adventist Church, to which he belonged, prohibited its members from working after sunset on Fridays (see Konttinen v. Finland, no. 24949/94, Commission decision of 3 December 1996, Decisions and Reports (DR) 87-A, p. 68), or the compulsory retirement for breaches of discipline of a member of the armed forces with fundamentalist views (see Kalaç, cited above; see also Stedman v. the United Kingdom, no. 29107/95, Commission decision of 9 April 1997, DR 89-A, p. 104, concerning the dismissal of an employee by her private-sector employer for refusing to work on Sundays). In these cases, the Commission and the Court considered that the measures taken by the authorities in respect of the applicants had not been based on the applicants’ religious beliefs but had been justified by the specific contractual obligations between the persons concerned and their respective employers.", "36. In the present case the Court observes that the rejection by the investigating judge of the applicant’s application for an adjournment was based on provisions of the Code of Criminal Procedure according to which the adjournment of a hearing concerning the immediate production of evidence is warranted only if the public prosecutor or counsel for the defendant is absent; counsel for the complainant is not required to be present at the hearing.", "37. In view of the circumstances of the present case, the Court is not convinced that setting the case down for hearing on a date which coincided with a Jewish holiday and refusing to adjourn it to a later date amounted to a restriction on the applicant’s right to practise his religion freely. It is not disputed between the parties that the applicant was able to perform his religious duties. Furthermore, he could have expected that his request for an adjournment would be refused on the basis of the statutory provisions in force and could have arranged to be replaced at the hearing in question to ensure that he complied with his professional obligations.", "Lastly, the Court notes that the applicant did not demonstrate that pressure had been exerted on him to make him change his religious beliefs or to prevent him from manifesting his religion or beliefs (see Knudsen v. Norway, no. 11045/84, Commission decision of 8 March 1985, DR 42, p. 247, and Konttinen, cited above).", "38. In any event, even supposing that there was interference with the applicant’s rights under Article 9 § 1, the Court considers that it was prescribed by law, was justified on grounds of the protection of the rights and freedoms of others – and in particular the public’s right to the proper administration of justice and the principle that cases be heard within a reasonable time (see paragraph 12 above) – and that it observed a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, mutatis mutandis, Casimiro and Ferreira v. Luxembourg (dec.), no. 44888/ 98, 27 April 1999).", "39. Accordingly, there has been no violation of Article 9 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The first applicant and her two sons, Dataico and Sami Albertin, also applicants, were born in 1957, 1988 and 1990 respectively. They are resident in Italy. In the school year 2001-2002 Dataico and Sami attended the Istituto comprensivo statale Vittorino da Feltre, a State school in Abano Terme. A crucifix was fixed to the wall in each of the school's classrooms.", "11. On 22 April 2002, during a meeting of the school's governors, the first applicant's husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. On 27 May 2002, by ten votes to two with one abstention, the school's governors decided to keep religious symbols in classrooms.", "12. On 23 July 2002 the first applicant contested that decision in the Veneto Administrative Court, complaining of an infringement of the principle of secularism, relying in that connection on Articles 3 (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the Convention, and on the principle of the impartiality of public administrative authorities (Article 97 of the Constitution).", "13. On 3 October 2002 the Minister of Education, Universities and Research adopted Directive no. 2666, instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms (see paragraph 24 below).", "On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below).", "14. By a decision of 14 January 2004 the Administrative Court referred to the Constitutional Court the question of the constitutionality, with regard to the principle of the secular character of the State and Articles 2, 3, 7, 8, 19 and 20 of the Constitution, of Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 (approving the single text bringing together the legislative provisions in force regarding education and schools), in their “specifications” resulting from Articles 118 and 119 of the above-mentioned royal decrees, and of Article 676 of the same legislative decree.", "Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed ”.", "By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality.", "15. On 17 March 2005 the Administrative Court dismissed the application. After ruling that Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 were still in force and emphasising that “the principle of the secular nature of the State [was] now part of the legal heritage of Europe and the western democracies”, it held that the presence of crucifixes in State - school classrooms, regard being had to the meaning it should be understood to convey, did not offend against that principle. It took the view, in particular, that although the crucifix was undeniably a religious symbol, it was a symbol of Christianity in general rather than of Catholicism alone, so that it served as a point of reference for other creeds. It went on to say that the crucifix was a historical and cultural symbol, possessing on that account an “identity- linked value” for the Italian people, in that it “represent[ed] in a way the historical and cultural development characteristic of [Italy] and in general of the whole of Europe, and [was] a good synthesis of that development”. The Administrative Court further held that the crucifix should also be considered a symbol of a value system underpinning the Italian Constitution. It gave the following reasons:", "“ ... 11.1. At this stage, the Court must observe, although it is aware that it is setting out along a rough and in places slippery path, that Christianity, and its older brother Judaism – at least since Moses and certainly in the Talmudic interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith.", "Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar's, and unto ... ” – through its strong emphasis placed on love for one's neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular.", "11.2 Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person and to the key elements in the Enlightenment (even though that movement, historically speaking, strongly opposed religion), namely the liberty and freedom of every person, the declaration of the rights of man, and ultimately the modern secular State. All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively – on the Christian conception of the world. It has been observed – judiciously – that the rallying call “liberty, equality, fraternity” can easily be endorsed by a Christian, albeit with a clear emphasis on the third word.", "In conclusion, it does not seem to be going too far to assert that, through the various twists and turns of European history, the secular nature of the modern State has been achieved at a high price, and was prompted in part, though of course not exclusively so, by a more or less conscious reference to the founding values of Christianity. That explains why in Europe and in Italy many jurists belonging to the Christian faith have featured among the strongest supporters of the secular State. ...", "11.5 The link between Christianity and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored, precisely because for most of its course it flows underground – partly because in the constantly changing relations between the States and Churches of Europe it is much easier to see the numerous attempts by the Churches to meddle in matters of State, and vice versa, just like the frequent occasions on which Christian ideals have been abandoned, though officially proclaimed, in the quest for power, or on which governments and religious authorities have clashed, sometimes violently.", "11.6 Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.", "11.7 By studying history carefully, from a suitable distance, not from up close, we can clearly perceive an affinity between (but not the identity of) the “hard core” of Christianity, which, placing charity above everything else, including faith, emphasises the acceptance of difference, and the “hard core” of the republican Constitution, which, in a spirit of solidarity, attaches value to the freedom of all, and therefore constitutes the legal guarantee of respect for others. The harmony remains, even though around those cores – both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time, some of them so thick as to obscure the core, particularly the core of Christianity. ...", "11.9 It can therefore be contended that in the present-day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development, and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution.", "In other words, the constitutional principles of freedom have many roots, which undeniably include Christianity, in its very essence. It would therefore be something of a paradox to exclude a Christian sign from a public institution in the name of secularism, one of whose distant sources is precisely the Christian religion.", "12.1 This court is admittedly not unaware of the fact that, in the past, other values have been attributed to the symbol of the crucifix, such as, at the time of the Albertine Statute, the sign of Catholicism understood as the State religion, and therefore used to Christianise and consolidate power and authority.", "The court is well aware, moreover, that it is still possible today to give various interpretations of the sign of the cross, and above all a strictly religious meaning referring to Christianity in general and Catholicism in particular. It is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case. ...", "12.6 It must be emphasised that the symbol of the crucifix, thus understood, now possesses, through its references to the values of tolerance, a particular scope in consideration of the fact that at present Italian State schools are attended by numerous pupils from outside the European Union, to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system. Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity. ...", "13.2 In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion. ...", "13.3 The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one's fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept.", "13.4 The cross, as the symbol of Christianity, can therefore not exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold. ...", "14.1 It is hardly necessary to add that the sign of the cross in a classroom, when correctly understood, is not concerned with the freely held convictions of anyone, excludes no one and of course does not impose or prescribe anything, but merely implies, in the heart of the aims set for education and teaching in a publicly run school, a reflection – necessarily guided by the teaching staff – on Italian history and the common values of our society legally retranscribed in the Constitution, among which the secular nature of the State has pride of place. ... ”", "16. The first applicant appealed to the Consiglio di Stato ( Supreme Administrative Court ), which confirmed that the presence of crucifixes in State-school classrooms had its legal basis in Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 and, regard being had to the meaning that should be attached to it, was compatible with the principle of secularism. On that point it found in particular that in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. In that sense, when displayed in classrooms, the crucifix could fulfil – even in a “secular” perspective distinct from the religious perspective to which it specifically referred – a highly educational symbolic function, irrespective of the religion professed by the pupils. The Consiglio di Stato held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above-mentioned values, the values which defined secularism in the State's present legal order.", "In its judgment (no. 556) dated 13 April 2006 the Consiglio di Stato gave the following reasoning:", "“ ... the Constitutional Court has accepted on a number of occasions that secularism is a supreme principle of our constitutional order, capable of resolving certain questions of constitutional legitimacy (among numerous judgments, see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages).", "This is a principle which is not proclaimed in express terms in our Constitution, a principle which is rich with ideological resonances and has a history full of controversy, but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system. In reality the Court derives this principle specifically from Articles 2, 3, 7, 8, 19 and 20 of the Constitution.", "The principle uses a linguistic symbol (“secularism”) which indicates in abridged form certain significant aspects of the above-mentioned provisions, the content of which established the operating conditions under which this symbol should be understood and function. If these specific operating conditions had not been established, the principle of “secularism” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework.", "In that framework, the operating conditions are of course determined by reference to the cultural traditions and the customs of each people, in so far as these traditions and customs are reflected in the legal order, and this differs from one nation to another. ...", "In the context of this court and the problem placed before it, namely the legitimacy of displaying the crucifix in classrooms, on the part of the competent authorities acting pursuant to the regulations, what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order, that give form and substance to the principle of “secularism” which now characterises the Italian State and to which the Constitutional Court has referred on a number of occasions.", "Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed.", "In a place of worship the crucifix is properly and exclusively a “religious symbol”, since it is intended to foster respectful adherence to the founder of the Christian religion.", "In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a non-discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a “secular” perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils.", "Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation.", "Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter – contained in the “Fundamental Principles” and the first part – and especially from those which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State.", "The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power ( but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution), and without taking anything away from their particular “secular” nature, adapted to the cultural context specific to the fundamental order of the Italian State and manifested by it. Those values are therefore experienced in civil society autonomously ( and not contradictorily ) in relation to religious society, so that they may be endorsed “secularly” by all, irrespective of adhesion to the creed which inspired and defended them.", "As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above, values which define secularism in the State's present legal order. ... ”" ]

[ "II. DEVELOPMENT OF THE RELEVANT DOMESTIC LAW AND PRACTICE", "17. The obligation to hang crucifixes in primary school classrooms was laid down in Article 140 of royal decree no. 4336 of 15 September 1860 of the Kingdom of Piedmont-Sardinia, promulgated in accordance with Law no. 3725 of 13 November 1859, which provided: “each school must without fail be equipped with ... a crucifix ” (Article 140).", "In 1861, the year which saw the birth of the Italian State, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of the Kingdom of Italy; it provided in particular: “the Roman Catholic Apostolic religion shall be the only religion of the State [ and ] other existing creeds shall be tolerated in conformity with the law”.", "18. The capture of Rome by the Italian army on 20 September 1870, following which the city was annexed and proclaimed capital of the new Kingdom of Italy, caused a crisis in relations between the State and the Catholic Church. By Law no. 214 of 13 May 1871 the Italian State unilaterally regulated relations with the Church, granting the Pope a number of privileges for the orderly conduct of religious activity. According to the applicants, the display of crucifixes in schools fell little by little into disuse.", "19. During the fascist period the State took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms.", "For instance, on 22 November 1922 the Ministry of Education sent out a circular (no. 68) with the following wording: “ ... in the last few years in many of the Kingdom's primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore, to those schools which lack them, the two sacred symbols of the faith and the consciousness of nationhood.”", "On 30 April 1924 royal decree no. 965 of 30 April 1924 was adopted. This decree laid down the internal regulations governing middle schools ( ordinamento interno delle giunte e dei regi istituti di istruzione media ). Article 118 provided :", "“Each school must have the national flag and each classroom must have a crucifix and a portrait of the King”.", "Article 119 of royal decree no. 1297 of 26 April 1928, approving the general regulations governing the provision of primary education ( approvazione del regolamento generale sui servizi dell'istruzione elementare ), provides that the crucifix must form part of the “necessary equipment and supplies in school classrooms”.", "20. The Lateran Pacts, signed on 11 February 1929, marked the “ Conciliation” of the Italian State and the Catholic Church. Catholicism was confirmed as Italy's official religion, Article 1 of the Conciliation Treaty being worded as follows:", "“ Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4 1848, according to which the Roman Catholic Apostolic religion is the only State religion.”", "21. In 1948 Italy adopted its republican Constitution, Article 7 of which provides: “The State and the Catholic Church, each in its own order, shall be independent and sovereign ... their relations shall be regulated by the Lateran Pacts [and] amendments to the Pacts accepted by both parties shall not require proceedings to revise the Constitution.” Article 8 provides: “All religious creeds shall be equally free before the law ... religious creeds other than Catholicism shall have the right to organise in accordance with their own statutes, in so far as these are not incompatible with the Italian legal order [and] their relations with the State shall be determined by the law on the basis of agreements with their respective representatives”.", "22. The Protocol to the new concordat, of 18 February 1984, ratified by Law no. 121 of 25 March 1985, states that the principle laid down in the Lateran Pacts, that the Catholic religion is the only State religion, is no longer in force.", "23. In a judgment of 12 April 1989 (no. 203), rendered in a case which raised the question of the non-compulsory nature of Catholic religious instruction in State schools, the Constitutional Court held that the principle of secularism was derived from the Constitution, ruling that it implied not that the State should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism.", "Dealing in the present case with an application concerning the conformity of the presence of crucifixes in State - school classrooms with the principle of secularism, the Constitutional Court ruled that it did not have jurisdiction, since the texts which required the presence of the crucifix were only regulations ( decision of 15 December 2004, no. 389; see paragraph 14 above ). When called upon to examine this question, the Consiglio di Stato held that, regard being had to the meaning that should be attached to it, the presence of the crucifix in State- school classrooms was compatible with the principle of secularism ( judgment of 13 February 2006, no. 556; see paragraph 16 above).", "In a different case, the Court of Cassation had taken the contrary view to that of the Consiglio di Stato in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there. In its judgment of 1 March 2000 (no. 439), it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the State, and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol. It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “an entire civilisation or the collective ethical conscience” and – here the Court of Cassation cited the terms used by the Consiglio di Stato in an opinion of 27 April 1988 (no. 63) – also symbolised “a universal value independent of any specific religious creed”.", "24. On 3 October 2002 the Minister of Education, Universities and Research issued the following instruction (no. 2666):", "“ ... The Minister", "... Considering that the presence of crucifixes in classrooms is founded on the provisions in force, that it offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind;", "Having assessed, with respect for different allegiances, convictions and beliefs, the desirability of requiring all schools, within the limits of their own autonomy and by decision of their competent collegiate organs, to set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish;", "Issues the following instruction :", "The Ministry's competent service ... shall take the necessary measures to see to it that :", "1) school governors ensure the presence of crucifixes in classrooms;", "2) all schools, within the limits of their own autonomy, and by decision of the members of their collegiate organs, set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish ... ”.", "25. Articles 19, 33 and 34 of the Constitution are worded as follows:", "Article 19", "“Everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality.”", "Article 33", "“The Republic guarantees the freedom of the arts and sciences, which may be freely taught.", "The Republic lays down general rules for education and establishes State schools of all branches and grades. ... ”", "Article 34", "“Schools are open to everyone.", "Elementary education, given for at least eight years, is compulsory and free. ... ”", "III. OVERVIEW OF LAW AND PRACTICE IN THE MEMBER STATES OF THE COUNCIL OF EUROPE WITH REGARD TO THE PRESENCE OF RELIGIOUS SYMBOLS IN STATE SCHOOLS", "26. In the great majority of member States of the Council of Europe the question of the presence of religious symbols in State schools is not governed by any specific regulations.", "27. The presence of religious symbols in State schools is expressly forbidden only in a small number of member States: the former Yugoslav Republic of Macedonia, France (except in Alsace and the département of Moselle) and Georgia.", "It is only expressly prescribed – in addition to Italy – in a few member States, namely: Austria, certain administrative regions of Germany ( Länder ) and Switzerland ( communes ), and Poland. Nevertheless, such symbols are found in the State schools of some member States where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania.", "28. The question has been brought before the supreme courts of a number of member States.", "In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution, but without criticising such a presence in other parts of the school premises (26 September 1990; ATF 11 6 1 a 252).", "In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State's neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics (16 May 1995; BVerfGE 93,1). The Bavarian parliament then issued a new ordinance maintaining the previous measure, but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby, if necessary, a compromise or a personalised solution could be reached.", "In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State- school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory (20 April 1993; no. U 12/32).", "In Romania the Supreme Court set aside a decision of the National Council for the Prevention of Discrimination of 21 November 2006 recommending to the Ministry of Education that it should regulate the question of the presence of religious symbols in publicly run educational establishments and, in particular, authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction. The Supreme Court held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers, pupils and pupils'parents (11 June 2008; no. 2393).", "In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil (14 December 2009; no. 3250).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 AND ARTICLE 9 OF THE CONVENTION", "29. The applicants complained of the fact that crucifixes were affixed to the wall in the classrooms of the State school attended by the second and third applicants. They argued that this infringed the right to education, guaranteed by Article 2 of Protocol No. 1 in the following terms :", "“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”", "They also contended that these facts infringed their right to the freedom of thought, conscience and religion enshrined in Article 9 of the Convention, which provides as follows :", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber's judgment", "30. In its judgment of 3 November 2009 the Chamber held that there had been a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention.", "31. First of all, the Chamber derived from the principles relating to the interpretation of Article 2 of Protocol No. 1 established in the Court's case-law an obligation on the State to refrain from imposing beliefs, even indirectly, in places where persons were dependent on it or in places where they were particularly vulnerable, emphasising that the schooling of children was a particularly sensitive area in that respect.", "The Court went on to say that among the plurality of meanings the crucifix might have the religious meaning was predominant. It accordingly considered that the compulsory and highly visible presence of crucifixes in classrooms was capable not only of clashing with the secular convictions of the first applicant, whose children attended at that time a State school, but also of being emotionally disturbing for pupils of non-Christian religions or those who professed no religion. On that last point, the Chamber emphasised that the “negative” freedom of religion was not limited to the absence of religious services or religious education : it extended to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. It added that this “negative right” deserved special protection if it was the State which expressed a belief and dissenters were placed in a situation from which they could not extract themselves if not by making disproportionate efforts and sacrifices.", "According to the Chamber, the State had a duty to uphold confessional neutrality in public education, where school attendance was compulsory regardless of religion, and which had to seek to inculcate in pupils the habit of critical thought. It observed in addition that it could not see how the display in State-school classrooms of a symbol that it was reasonable to associate with the majority religion in Italy could serve the educational pluralism which was essential for the preservation of “democratic society” within the Convention meaning of that term.", "32. The Chamber concluded that “the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restrict[ed] the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe”. The practice infringed those rights because “the restrictions [were] incompatible with the State's duty to respect neutrality in the exercise of public authority, particularly in the field of education” ( § 57 of the judgment).", "B. Arguments of the parties", "1. The Government", "33. The Government did not raise an objection of inadmissibility.", "34. They regretted that the Chamber had not had available to it a comparative law study of relations between the State and religions and on the question of the display of religious symbols in State schools. They asserted that the Chamber had thus deprived itself of an essential element, since such a study would have shown that there was no common approach in Europe in these fields, and would accordingly have led it to the finding that the member States had a particularly wide margin of appreciation; consequently, the Chamber, in its judgment, had failed to take that margin of appreciation into consideration, thus ignoring one fundamental aspect of the problem.", "35. The Government also criticised the Chamber's judgment for deriving from the concept of confessional “ neutrality” a principle excluding any relations between the State and a particular religion, whereas neutrality required the public administrative authorities to take all religions into account. The judgment was accordingly based on confusion between “ neutrality” ( an “ inclusive concept” ) and “secularism ( an “exclusive concept”). Moreover, in the Government's view, neutrality meant that States should refrain from promoting not only a particular religion but also atheism, “secularism” on the State's part being no less problematic than proselytising by the State. The Chamber's judgment was thus based on a misunderstanding and amounted to favouring an irreligious or antireligious approach of which the applicant, as a member of the Union of atheists and rationalist agnostics, was asserted to be a militant supporter.", "36. The Government went on to argue that it was necessary to take account of the fact that a single symbol could be interpreted differently from one person to another. That applied in particular to the sign of the cross, which could be perceived not only as a religious symbol, but also as a cultural and identity-linked symbol, the symbol of the principles and values which formed the basis of democracy and western civilisation; it appeared, for instance, on the flags of a number of European countries. Whatever the evocative power of an “image” might be, in the Government's view, it was a “passive symbol”, whose impact on individuals was not comparable with the impact of “active conduct”, and no one had asserted in the present case that the content of the teaching provided in Italy was influenced by the presence of crucifixes in classrooms.", "That presence was the expression of a “national particularity”, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long - standing attachment to the values of Catholicism. Keeping crucifixes in schools was therefore a matter of preserving a centuries-old tradition. The Government argued that the right of parents to respect for their “family culture” ought not to infringe the community's right to transmit its culture or the right of children to discover it. Moreover, by contenting itself with a “potential risk” of emotional disturbance in finding a breach of the rights to education and freedom of thought, conscience and religion, the Chamber had considerably widened the scope of those provisions.", "37. Referring in particular to the Otto-Preminger-Institut v. Austria judgment of 20 September 1994 ( Series A no. 295-A), the Government contended that, although account should be taken of the fact that the Catholic religion was that of a large majority of Italians, this was not in order to make that fact into an aggravating circumstance, as the Chamber had done. On the contrary, the Court should acknowledge and protect national traditions and the prevailing popular feeling, and leave each State to maintain a balance between opposing interests. Moreover, it was the Court's case-law that school curricula or provisions establishing the preponderance of the majority religion did not in themselves point to undue influence on the part of the State or attempted indoctrination, and that the Court should respect constitutional traditions and principles relating to relations between the State and religions – including in the present case the particular approach to secularism which prevailed in Italy – and take into account the context of each State.", "38. Considering in addition that the second sentence of Article 2 of Protocol No. 1 was applicable only to school curricula, the Government criticised the Chamber's judgment for the finding of a violation without any indication of how the mere presence of a crucifix in the classrooms where the first applicant's children were taught was capable of substantially reducing her ability to bring them up in conformity with her convictions, the only reason given being that pupils would feel that they were being educated in a school environment marked by a particular religion. That reason was erroneous when judged by the yardstick of the Court's case-law, from which it could be seen in particular, firstly that the Convention did not prevent member States from having a State religion, or from showing a preference for a particular religion, or from providing pupils with more extensive religious teaching in relation to the dominant religion, and secondly that account had to be taken of the fact that the educational influence of parents was much greater than the school's.", "39. In the Government's view, the presence of crucifixes in classrooms made a legitimate contribution to enabling children to understand the national community in which they were expected to integrate. An “environmental influence” was all the more improbable because children in Italy received an education which helped them to develop a critical outlook on the question of religion, in a dispassionate atmosphere from which any form of proselytising was excluded. Moreover, Italy had opted for a benevolent approach to minority religions in the school environment: Italian law currently conferred the right to wear Islamic headscarves and other apparel or symbols with a religious connotation; the beginning and end of Ramadan were often celebrated in schools; religious instruction was permitted for all recognised creeds; and the needs of pupils belonging to minority faiths were taken into account, with Jewish pupils, for example, being entitled not to sit examinations on Saturdays.", "40. Lastly, the Government emphasised the need to take into account the right of parents who wanted crucifixes to be kept in classrooms. That was the wish of the majority in Italy and was also the wish democratically expressed in the present case by almost all the members of the school's governing body. Removing crucifixes from classrooms in such circumstances would amount to “abuse of a minority position” and would be in contradiction with the State's duty to help individuals satisfy their religious needs.", "2. The applicants", "41. The applicants submitted that the display of crucifixes in the classrooms of the State school attended by the second and third applicants constituted an illegitimate interference with their right to the freedom of thought and conscience and infringed the principle of educational pluralism in that it was the expression of the State's preference for a particular religion in a place where conscience was formed. By expressing that preference the State was also disregarding its obligation to give special protection to minors against any form of propaganda or indoctrination. Moreover, according to the applicants, since the educational environment was thus marked by a symbol of the dominant religion, the display of the crucifix which they complained of infringed the second and third applicants'right to receive an open and pluralistic education aimed at the development of a capacity for critical judgement. Lastly, as the first applicant was in favour of secularism, it infringed her right to have her children educated in conformity with her own philosophical convictions.", "42. The applicants argued that the crucifix was without a shadow of a doubt a religious symbol and trying to attribute a cultural value to it savoured of an attempt to maintain a hopeless last-ditch defence. Nor did anything in the Italian legal system justify the assertion that it was a symbol of national identity: according to the Constitution, it was the flag which symbolised that identity.", "Moreover, as the German Federal Constitutional Court had pointed out in its judgment of 16 May 1995 ( see paragraph 2 8 above ), giving the crucifix a profane meaning would move it away from its original meaning and help divest it of its sacred nature. As to the assertion that it was merely a “passive symbol”, this ignored the fact that like all symbols – and more than all others – it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible. The German Federal Constitutional Court had, moreover, made that finding, holding in the judgment cited above that the presence of crucifixes in classrooms had an evocative character in that it represented the content of the faith it symbolised and served as “publicity material” for it. Lastly, the applicants pointed out that in the Dahlab v. Switzerland decision of 15 February 2001 (no. 42393/98, ECHR 2001-V), the Court had noted the particular power that religious symbols exerted in the school environment.", "43. The applicants contended that every democratic State had a duty to guarantee the freedom of conscience, pluralism, equal treatment of beliefs and the secular nature of institutions. The principle of secularism required above all neutrality on the part of the State, which should keep out of the religious sphere and adopt the same attitude with regard to all religious currents. In other words, neutrality obliged the State to establish a neutral space within which everyone could freely live according to his own beliefs. By imposing religious symbols, namely crucifixes, in classrooms, the Italian State was doing the opposite.", "44. The approach advocated by the applicants was thus clearly distinct from State atheism, which amounted to denying the freedom of religion by imposing a secular viewpoint in an authoritarian manner. Seen in terms of the State's impartiality and neutrality, secularism was on the contrary a means of securing the religious and philosophical freedom of conscience of all.", "45. The applicants further contended that it was essential to give special protection to minority beliefs and convictions, in order to preserve those who held them from a “despotism of the majority”, and that too was a reason for removing crucifixes from classrooms.", "46. In conclusion, the applicants argued that although, as the Government maintained, removing crucifixes from State - school classrooms would take away part of Italian cultural identity, keeping them there was incompatible with the foundations of western political thought, the principles of the liberal State and a pluralist, open democracy, and respect for the individual rights and freedoms enshrined in the Italian Constitution and the Convention.", "C. Submissions of the third-party interveners", "1. The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino", "47. In their joint observations submitted at the hearing, the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino indicated that in their view the Chamber's reasoning had been based on a misunderstanding of the concept of “neutrality”, which the Chamber had confused with “secularism”. They pointed out that there was a huge diversity of Church-State arrangements in Europe and that more than half the population of Europe lived in non-secular States. They added that State symbols inevitably had a place in state education and that many of these had a religious origin, the Cross – which was both a national and a religious symbol – being the most visible example. In their view, in non-secular European States the presence of religious symbols in the public space was widely tolerated by the secular population as part of national identity. States should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin. The position adopted by the Chamber was not an expression of the pluralism manifest in the Convention system, but an expression of the values of a secular State. To extend it to the whole of Europe would represent the “Americanisation” of Europe in that a single and unique rule and a rigid separation of Church and State would be binding on everyone.", "In their submission, favouring secularism was a political position that, whilst respectable, was not neutral. Accordingly, in the educational sphere a State that supported the secular as opposed to the religious was not being neutral. Similarly, removing crucifixes from classrooms where they had always been would not be devoid of educational consequences. In reality, whether the State opted to allow or prohibit the presence of crucifixes in classrooms, the important factor was the degree to which the curriculum contextualised and taught children tolerance and pluralism.", "The intervening Governments acknowledged that there might be circumstances where the arrangements by the State were unacceptable. The burden of proof should remain on the individual, however, and the Court should intervene only in extreme cases.", "2. The Government of the Principality of Monaco", "48. The intervening Government declared that they shared the viewpoint of the respondent Government according to which the crucifix was a “passive symbol” that was found on the coats of arms and flags of many States and in the instant case reflected a national identity rooted in history. Furthermore, being indivisible, the principle of State neutrality required the authorities to refrain from imposing a religious symbol where there had never been one and from withdrawing one that had always been there.", "3. The Government of Romania", "49. The intervening Government submitted that the Chamber had taken insufficient account of the wide margin of appreciation available to the Contracting States where sensitive issues were involved and that there was no European-wide consensus. They pointed out that the Court's case-law recognised in particular that the States enjoyed a wide margin of appreciation regarding the wearing of religious symbols in State schools; in their submission, the same should apply to the display of religious symbols in such schools. They also pointed out that the Chamber judgment had been based on the premise that the display of religious symbols in State schools breached Article 9 of the Convention and Article 2 of Protocol No. 1, which conflicted with the principle of neutrality because, where applicable, Contracting States were compelled to intervene with a view to removing those symbols. In their view, that principle was better served where decisions of this type were taken jointly by teachers, pupils and parents. In any event, as it was not associated with particular religious obligations, the presence of the crucifix in classrooms did not sufficiently affect the religious feelings of those concerned for there to be a violation of the aforementioned provisions.", "4. The non-governmental organisation Greek Helsinki Monitor", "50. According to the intervening organisation, the crucifix could not be perceived as anything other than a religious symbol, so that displaying it in State-school classrooms could be seen as an institutional message advocating a particular religion. It pointed out that in the case of Folgerø the Court had held that the participation of pupils in religious activities could in fact influence them, and considered that the same was true where they were taught in classrooms where a religious symbol was displayed. It also drew the Court's attention to the fact that children or parents who were bothered by this might refrain from protesting for fear of reprisals.", "5. The non-governmental organisation Associazione nazionale del libero Pensiero", "51. The intervening organisation, which considered that the presence of religious symbols in State-school classrooms was incompatible with Article 9 of the Convention and Article 2 of Protocol No. 1, submitted that the restrictions imposed on the applicants'rights were not “ prescribed by law” within the meaning of the Court's case-law. It pointed out in that connection that displaying the crucifix in State-school classrooms was prescribed not by law but by regulations adopted during the fascist era. It added that those regulations had in any event been implicitly repealed by the Constitution of 1947 and the Law of 1985 ratifying the agreements amending the Lateran Pacts of 1929. It pointed out that the Criminal Division of the Court of Cassation had ruled accordingly in a judgment of 1 March 2000 (no. 4273) in a similar case relating to crucifixes displayed in polling stations and that it had confirmed that approach in a judgment of 17 February 2009 concerning crucifixes displayed in courtrooms (without, however, ruling on the merits). There was therefore a conflict of case-law between the Consiglio di Stato – which, on the contrary, held that the relevant regulations were applicable – and the Court of Cassation that affected the principle of legal security, which was the pillar of a State governed by the rule of law. As the Constitutional Court had declined jurisdiction, there was no mechanism in Italy whereby this conflict could be resolved.", "6. The non-governmental organisation European Centre for Law and Justice", "52. The intervening organisation submitted that the Chamber had wrongly addressed the question raised by the case, which was whether the Convention rights invoked by the first applicant had been violated merely on account of the presence of the crucifix in classrooms. Its view was that they had not. Firstly, the “ personal convictions ” of the first applicant's children had not been violated because they had neither been compelled to act against their conscience nor prevented from acting according to their conscience. Secondly, their “innermost convictions” and the first applicant's right to ensure their education in conformity with her own philosophical convictions had not been violated because her children had neither been forced to believe nor prevented from not believing. They had not been indoctrinated; nor had they been the subject of misplaced proselytism. The intervening organisation submitted that the Chamber had been mistaken in holding that a State's decision to display crucifixes in classrooms was contrary to the Convention (which was not the question that had been submitted to it). In doing so, the Chamber had created “a new obligation relating not to the first applicant's rights, but to the nature of the “ educational environment”. In the intervening organisation's submission, it was because it had been unable to establish that the first applicant's children's “innermost or personal convictions ” had been violated on account of the presence of the crucifix in the classrooms that the Chamber had created a new obligation to ensure that the educational environment was entirely secular, thus exceeding the scope of the application and the limits of its jurisdiction.", "7. The non-governmental organisation Eurojuris", "53. The intervening organisation agreed with the Chamber's conclusions. After reiterating the relevant provisions of Italian positive law – and underscoring the constitutional value of the principle of secularism – it referred to the principle established in the Court's case-law to the effect that school should not be a place for proselytism or preaching. It also referred to cases in which the Court had examined the question of the wearing of Islamic veils in educational establishments. It went on to point out that the presence of crucifixes in Italian State-school classrooms had been prescribed not by law but by regulations inherited from the fascist era which reflected a confessional conception of the State today that was incompatible with the principle of secularism laid down in positive constitutional law. It firmly rejected the reasoning of the Italian Administrative Court, according to which prescribing the presence of crucifixes in State-school classrooms was still compatible with that principle because they symbolised secular values. In its submission, it was a religious symbol with which non-Christians did not identify. Moreover, by obliging schools to display it in State-school classrooms the State conferred a particular dimension on a given religion, to the detriment of pluralism.", "8. The non-governmental organisations International Commission of Jurists, Interights and Human Rights Watch", "54. The intervening organisations submitted that the compulsory display of religious symbols such as the crucifix in State-school classrooms was incompatible with the principle of neutrality and the rights guaranteed to pupils and their parents under Article 9 of the Convention and Article 2 of Protocol No. 1. In their submission, educational pluralism was an established principle, upheld not only in the Court's case-law but also in the case-law of a number of supreme courts and in various international instruments. Furthermore, the Court's case-law supported a duty of State neutrality and impartiality as among religious beliefs in the provision of public services, including education. They pointed out that this principle of impartiality was recognised not only by the Italian, Spanish and German Constitutional Courts but also, in particular, by the French Conseil d'Etat and the Swiss Federal Court. They added that, as several supreme courts had held, State neutrality as among religious beliefs was particularly important in the classroom because, school being compulsory, children were vulnerable to indoctrination at school. They went on to reiterate the Court's finding that, although the Convention did not prevent States from imparting through teaching or education information or knowledge of a religious or philosophical kind, they had to ensure that this was done in an objective, critical and pluralistic manner, and free of any indoctrination. They stressed that the same applied to all functions carried out in the area of education and teaching, including the organisation of the school environment.", "9. The non-governmental organisations Zentralkomitee der deutschen katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani", "55. The intervening organisations stated that they agreed with the Chamber that, whilst the crucifix had a plural meaning, it was primarily the central symbol of Christianity. They added, however, that they disagreed with its conclusion, and found it difficult to understand how the presence of crucifixes in classrooms could be “emotionally disturbing” for some pupils or hinder the development of their critical thinking. In their submission, that presence alone could not be equated with a religious or philosophical message; it should rather be interpreted as a passive way of conveying basic moral values. The question accordingly had to be regarded as one that fell within the competence of the State when deciding on the curriculum in schools; parents had to accept that certain aspects of State-school education could not be entirely in keeping with their convictions. They added that a State's decision to display crucifixes in State-school classrooms did not mean that it pursued an aim of indoctrination prohibited by Article 2 of Protocol No. 1. They maintained that a balance had to be found in the present case between the rights and interests of believers and non-believers, between the fundamental rights of individuals and the legitimate interests of society, and between the formulation of standards relating to fundamental rights and maintaining the diversity existing in Europe. In their submission, the Court should leave a wide margin of appreciation to the States in this area because the organisation of the relationship between the State and religion varied from one country to another and – in particular regarding the place of religion in State schools – was deeply rooted in the history, tradition and culture of a country.", "10. Thirty-three members of the European Parliament acting collectively", "56. The interveners pointed out that the Court was not a constitutional court and had to respect the principle of subsidiarity and recognise a particularly broad margin of appreciation in favour of Contracting States not only regarding the relationship between the State and religion but also where they carried out their functions in the area of education and teaching. In their view, by taking a decision whose effect would be to make it compulsory to remove religious symbols from State schools, the Grand Chamber would be sending a radical ideological message. They added that it was clear from the Court's case-law that a State which, for reasons deriving from its history or its tradition, showed a preference for a particular religion did not exceed that margin. Accordingly, in their opinion, the display of crucifixes in public buildings did not conflict with the Convention, and the presence of religious symbols in the public space should not be seen as a form of indoctrination but the expression of a cultural unity and identity. They added that in this specific context religious symbols had a secular dimension and should therefore not be removed.", "D. The Court's assessment", "57. In the first place, the Court observes that the only question before it concerns the compatibility, in the light of the circumstances of the case, of the presence of crucifixes in Italian State - school classrooms with the requirements of Article 2 of Protocol No. 1 and Article 9 of the Convention.", "Thus it is not required in this case to examine the question of the presence of crucifixes in places other than State schools. Nor is it for the Court to rule on the compatibility of the presence of crucifixes in State - school classrooms with the principle of secularism as enshrined in Italian law.", "58. Secondly, the Court emphasises that the supporters of secularism are able to lay claim to views attaining the “ level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 ( see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48 ). More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect'in a democratic society'”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education (ibid. ).", "1. The case of the first applicant", "a. General principles", "59. The Court reiterates that in the area of education and teaching Article 2 of Protocol No. 1 is in principle the lex specialis in relation to Article 9 of the Convention. That is so at least where, as in the present case, the dispute concerns the obligation laid on Contracting States by the second sentence of Article 2 to respect, when exercising the functions they assume in that area, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions ( see Folgerø and Others v. Norway [GC], no. 15472/02, § 84, ECHR 2007 ‑ VIII, § 8 4).", "The complaint in question should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1 ( see also Appel-Irrgang and Others v. Germany (dec.), no. 45216/07, ECHR 2009 ‑ ... ).", "60. Nevertheless, that provision should be read in the light not only of the first sentence of the same Article, but also, in particular, of Article 9 of the Convention ( see, for example, Folgerø, cited above, § 84 ), which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a “duty of neutrality and impartiality”.", "In that connection, it should be pointed out that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups ( see, for example, Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 ‑ XI ). That concerns both relations between believers and non-believers and relations between the adherents of various religions, faiths and beliefs.", "61. The word “respect” in Article 2 of Protocol No. 1 means more than “ acknowledge ” or “ take into account ”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see Campbell and Cosans, cited above, § 37).", "Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching (see Bulski v. Poland (dec.), nos. 46254/99 and 31888/02).", "62. The Court would also refer to its case-law on the place of religion in the school curriculum (see essentially Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, §§ 50-53, Series A no. 23; Folgerø, cited above, § 84; and Hasan and Eylem Zengin v. Turkey, no. 1448/04, §§ 51 and 52, ECHR 2007 ‑ XI ).", "According to those authorities, the setting and planning of the curriculum fall within the competence of the Contracting States. In principle it is not for the Court to rule on such questions, as the solutions may legitimately vary according to the country and the era.", "In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum.", "On the other hand, as its aim is to safeguard the possibility of pluralism in education, it requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents'religious and philosophical convictions. That is the limit that the States must not exceed ( see judgments cited above in this paragraph, §§ 53, 84 (h) and 52 respectively).", "b. Assessment of the facts of the case in the light of the above principles", "63. The Court does not accept the Government's argument that the obligation laid on Contracting States by the second sentence of Article 2 of Protocol No. 1 concerns only the content of school curricula, so that the question of the presence of crucifixes in State- school classrooms would fall outside its scope.", "It is true that a number of cases in which the Court has examined this provision concerned the content and implementation of the school curriculum. Nevertheless, as the Court has already emphasised, the obligation on Contracting States to respect the religious and philosophical convictions of parents does not apply only to the content of teaching and the way it is provided; it binds them “in the exercise” of all the “functions” – in the terms of the second sentence of Article 2 of Protocol No. 1 – which they assume in relation to education and teaching ( see essentially Kjeldsen, Busk Madsen and Pedersen, cited above, § 50; Valsamis v. Greece, 18 December 1996, § 27, Reports of Judgments and Decisions 1996 ‑ VI; Hasan and Eylem Zengin, cited above, § 49; and Folgerø, cited above, § 84 ). That includes without any doubt the organisation of the school environment where domestic law attributes that function to the public authorities.", "It is in that context that the presence of crucifixes in Italian State - school classrooms is to be placed ( see Article 118 of royal decree no. 965 of 30 April 1924, Article 119 of royal decree no. 1297 of 26 April 1928 and Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 – paragraphs 14 and 19 above ).", "64. In general, the Court considers that where the organisation of the school environment is a matter for the public authorities, that task must be seen as a function assumed by the State in relation to education and teaching, within the meaning of the second sentence of Article 2 of Protocol No. 1.", "65. It follows that the decision whether crucifixes should be present in State - school classrooms forms part of the functions assumed by the respondent State in relation to education and teaching and, accordingly, falls within the scope of the second sentence of Article 2 of Protocol No. 1. That makes it an area in which the State's obligation to respect the right of parents to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions comes into play.", "66. The Court further considers that the crucifix is above all a religious symbol. The domestic courts came to the same conclusion and in any event the Government have not contested this. The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive at this stage of the Court's reasoning.", "There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed.", "However, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State's part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant's subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1.", "67. The Government, for their part, explained that the presence of crucifixes in State- school classrooms, being the result of Italy's historical development, a fact which gave it not only a religious connotation but also an identity-linked one, now corresponded to a tradition which they considered it important to perpetuate. They added that, beyond its religious meaning, the crucifix symbolised the principles and values which formed the foundation of democracy and western civilisation, and that its presence in classrooms was justifiable on that account.", "68. The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasises, however, that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols.", "As regards the Government's opinion on the meaning of the crucifix, the Court notes that the Consiglio di Stato and the Court of Cassation have diverging views in that regard and that the Constitutional Court has not given a ruling (see paragraphs 16 and 23 above). It is not for the Court to take a position regarding a domestic debate among domestic courts.", "69. The fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see paragraphs 6 1 -62 above).", "That applies to organisation of the school environment and to the setting and planning of the curriculum ( as the Court has already pointed out : see essentially the judgments cited above in the cases of Kjeldsen, Busk Madsen and Pedersen, §§ 50-53; Folgerø, § 84; and Zengin, §§ 51-52; paragraph 62 above). The Court therefore has a duty in principle to respect the Contracting States'decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination (ibid.).", "70. The Court concludes in the present case that the decision whether crucifixes should be present in State - school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools (see paragraphs 2 6 - 28 above) speaks in favour of that approach.", "This margin of appreciation, however, goes hand in hand with European supervision (see, for example, mutatis mutandis, Leyla Şahin, cited above, § 110), the Court's task in the present case being to determine whether the limit mentioned in paragraph 69 above has been exceeded.", "71. In that connection, it is true that by prescribing the presence of crucifixes in State- school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.", "That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.", "The Court refers on this point, mutatis mutandis, to the previously cited Folgerø and Zengin judgments. In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63).", "72. Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality (see paragraph 60 above). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities (see on these points Folgerø and Zengin, cited above, § 94 and § 64 respectively).", "73. The Court observes that, in its judgment of 3 November 2009, the Chamber agreed with the submission that the display of crucifixes in classrooms would have a significant impact on the second and third applicants, aged eleven and thirteen at the time. The Chamber found that, in the context of public education, crucifixes, which it was impossible not to notice in classrooms, were necessarily perceived as an integral part of the school environment and could therefore be considered “ powerful external symbols” within the meaning of the decision in Dahlab, cited above (see §§ 54 and 55 of the judgment).", "The Grand Chamber does not agree with that approach. It considers that that decision cannot serve as a basis in this case because the facts of the two cases are entirely different.", "It points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation.", "74. Moreover, the effects of the greater visibility which the presence of the crucifix gives to Christianity in schools needs to be further placed in perspective by consideration of the following points. Firstly, the presence of crucifixes is not associated with compulsory teaching about Christianity ( see the comparative - law information set out in Zengin, cited above, § 33). Secondly, according to the indications provided by the Government, Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were “often celebrated” in schools; and optional religious education could be organised in schools for “all recognised religious creeds” (see paragraph 39 above). Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.", "In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claim that the second and third applicants had ever experienced a tendentious reference to that presence by a teacher in the exercise of his or her functions.", "75. Lastly, the Court notes that the first applicant retained in full her right as a parent to enlighten and advise her children, to exercise in their regard her natural functions as educator and to guide them on a path in line with her own philosophical convictions ( see, in particular, Kjeldsen, Busk Madsen and Pedersen and Valsamis, cited above, §§ 54 and 31 respectively ).", "76. It follows from the foregoing that, in deciding to keep crucifixes in the classrooms of the State school attended by the first applicant's children, the authorities acted within the limits of the margin of appreciation left to the respondent State in the context of its obligation to respect, in the exercise of the functions it assumes in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.", "77. The Court accordingly concludes that there has been no violation of Article 2 of Protocol No. 1 in respect of the first applicant. It further considers that no separate issue arises under Article 9 of the Convention.", "2. The case of the second and third applicants", "78. The Court considers that, when read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe. It therefore understands why pupils who are in favour of secularism may see in the presence of crucifixes in the classrooms of the State school they attend an infringement of the rights they derive from those provisions.", "However, it considers, for the reasons given in connection with its examination of the first applicant's case, that there has been no violation of Article 2 of Protocol No. 1 in respect of the second and third applicants. It further considers that no separate issue arises in the case under Article 9 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "79. The applicants submitted that because the second and third applicants had been exposed to the crucifixes displayed in the classrooms of the State school they attended, all three of them, not being Catholics, had suffered a discriminatory difference in treatment in relation to Catholic parents and their children. Arguing that “the principles enshrined in Article 9 of the Convention and Article 2 of Protocol No. 1 are reinforced by the provisions of Article 14 de la Convention ”, they complained of a violation of the latter Article, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "80. The Chamber held that, regard being had to the circumstances of the case and the reasoning which had led it to find a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention, there was no cause to examine the case under Article 14 also, whether taken separately or in conjunction with those provisions.", "81. The Court, which notes that little argument has been presented in support of this complaint, reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols.", "Proceeding on the assumption that the applicants wished to complain of discrimination regarding their enjoyment of the rights guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 on account of the fact that they were not adherents of the Catholic religion and that the second and third of them had been exposed to the sight of crucifixes in the classrooms of the State school they attended, the Court does not see in those complaints any issue distinct from those it has already determined under Article 2 of Protocol No. 1. There is accordingly no cause to examine this part of the application." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1951 and lives in Paris.", "6. The applicant was recruited on a three-month fixed-term contract, from 1 October to 31 December 1999, extended for one year from 1 January to 31 December 2000, as a contracted employee of the hospital civil service, to carry out the duties of a social worker in the psychiatric unit of Nanterre Hospital and Social Care Centre (“the CASH”) a public health establishment administered by the City of Paris.", "7. On 11 December 2000 the Director of Human Resources informed the applicant that her contract would not be renewed with effect from 31 December 2000. The reason given for the decision – which had been taken following complaints by certain patients being treated at the CASH – was that the applicant refused to stop wearing her head covering.", "8. On 28 December 2000, in response to a letter from the applicant alleging the illegality of the refusal to renew her contract in that it was motivated by her convictions and her affiliation to the Muslim faith, the Director of Human Resources indicated that at the meeting of 30 November 2000 which had preceded the administration ’ s decision, she had not been criticised for her religious beliefs, but merely reminded of the rights and duties of public employees, namely the ban on manifesting such beliefs. He continued as follows.", "“I emphasised that I had been required to have a meeting with you following complaints made to Ms M., manager of the welfare and education unit, both by patients who were refusing to meet you on account of this display [of your beliefs] and by social workers for whom it was becoming increasingly difficult to operate in this very delicate situation. It should be noted that Ms M. raised these difficulties with you and tried to persuade you not to manifest your religious beliefs, even before the complaints reached HR. Indeed, it was only shortly before the meeting with you on 30 November that the unit managers were officially informed of the problem created by the fact of your head covering.", "With regard to your head covering at the time of recruitment: as you are aware, the recruitment interview lasts, at the most, one hour. Individuals attend wearing ordinary “street” clothes, and do not necessarily have to remove their coats or scarves. The fact that your head was covered during that interview was not interpreted as a possible sign of [religious] affiliation, but simply as a form of attire.", "The termination of your contract has a legal basis, and does not result from a discriminatory situation.”", "The Director of Human Resources further reminded the applicant in this letter of the Opinion issued by the Conseil d ’ État on 3 May 2000. That Opinion stated that the principle of freedom of conscience, the principle of State secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs; lastly, it pointed out that the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations (see paragraph 26 below).", "9. By an application registered on 7 February 2001, the applicant asked the Paris Administrative Court to set aside the decision of 11 December 2000.", "10. By letters of 15 and 28 February 2001, the applicant was informed of the decision of the Director of Human Resources at the CASH to include her on the list of candidates for a recruitment test for social workers and to permit her to take part. This decision was taken on the basis of the decree of 26 March 1993 granting special status to social workers employed by State hospitals. That text stated that the social worker ’ s task was to assist patients and their families who were experiencing difficulties in their dealings with social services, by helping to draw up and implement the relevant programme in the establishment to which they were attached and also other social and educational programmes, in coordination, inter alia, with other institutions or social services. The applicant did not take part in the recruitment test.", "11. By a judgment of 17 October 2002, the Administrative Court held that the decision not to renew the contract had been compatible with the principles of secularism and the neutrality of public services.", "“...", "In view of Law no. 83-634 of 13 July 1983 [laying down the rights and duties of civil servants, see paragraph 25 below]", "...", "Although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly in terms of access to positions, career progress and the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle, which is intended to protect the users of the service from any risk of influence or of interference with their own freedom of conscience, concerns all public services and not only the education service; this obligation must be applied with particular stringency in those public services where the users are in a fragile or dependent state;”", "It dismissed the applicant ’ s action, pointing out that the decision not to renew her contract had been taken on account of her refusal to remove her veil “following complaints submitted by certain patients in the care centre and in spite of repeated warnings by her line managers and friendly advice from her colleagues”. The court considered that on the basis of the above-mentioned principles concerning the expression of religious opinions within the public services, the administrative authorities had not committed an error of assessment in refusing to renew the contract on the implied ground of her wearing of “attire manifesting, in an ostensible manner, allegiance to a religion”. It concluded “thus, even though [the applicant ’ s] employer tolerated the wearing of this veil for several months and [her] conduct cannot be considered as deliberately provocative or proselytising, the hospital has not acted illegally in deciding not to renew the contract following her refusal to stop wearing the veil”.", "12. By a judgment of 2 February 2004, the Paris Administrative Court of Appeal held that the contested decision was disciplinary in nature, in that “it transpires from both the letter of 28 December from the CASH ’ s Director of Human Resources and the hospital ’ s defence pleadings that [the decision] was taken on account of [the applicant ’ s] persistence in wearing a veil for religious reasons during her working hours”. It therefore quashed the decision on procedural grounds, given that the applicant had not been informed of the reasons for the envisaged measure prior to its adoption, nor given an opportunity to consult her case file.", "13. In execution of the Court of Appeal ’ s judgment, the Director of the CASH invited the applicant to inspect the case file. By a reasoned judgment of 13 May 2005, he confirmed that her contract would not be renewed in the following terms.", "“As a result of the judgment of the Paris Administrative Court of Appeal dated 2 February 2004, which held that the non-renewal of your fixed-term contract which expired on 31 December 2000 had been disciplinary in nature, we invited you again to inspect your administrative file on 10 May 2005, in order to bring the procedure into line with the regulations.", "As required in execution of the same judicial decision, we hereby inform you that the disciplinary basis for the non-renewal of your contract is your refusal to remove your veil, in that it ostensibly manifests your religious affiliation.", "In application of the principles of the secular nature of the State and the neutrality of public services, which underlie the duty of discretion imposed on every State employee, even those employed under contract, your refusal to remove your head covering when carrying out your duties effectively amounts to a breach of your obligations, thus exposing you to a legitimate disciplinary sanction, as the Conseil d ’ État held, with regard to the principle, in its Opinion concerning Ms Marteaux, dated 3 May 2000.", "Our decision not to renew the contract is all the more justified in the present case in that you were required to be in contact with patients when carrying out your duties.”", "14. By a letter of 29 June 2005, the Administrative Court of Appeal informed the applicant that the CASH had taken the measures required by the judgment of 2 February 2004. It advised her that, where a decision was set aside on procedural grounds, the administrative body could legally take new decisions that were identical to those that had been set aside, provided that they complied with the relevant procedure, and that the new decision of 13 May 2005 could be challenged before the administrative court.", "15. In January 2006 the applicant asked the Versailles Administrative Court to set aside the decision of 13 May 2005. She argued, in particular, that the Conseil d ’ État ’ s Opinion of 3 May 2000, relied upon by her employer, was intended to apply only to teachers.", "16. By a judgment of 26 October 2007, the court dismissed her request, basing its decision on the principles of State secularism and the neutrality of public services.", "“... However, while the Conseil d ’ État ’ s Opinion of 3 May 2000 specifically concerns the case of an employee in the public education service, it also clearly states that the constitutional and legislative texts show that the principles of freedom of conscience, State secularism and the neutrality of public services apply to the public services in their entirety; although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly with regard to access to positions, career progress and also the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle is intended to protect the users of the service from any risk of influence being exerted or of interference with their own freedom of conscience.", "In view of the above-mentioned principles concerning the manifestation of religious opinions within the public service, the administrative body did not act illegally in refusing to renew the [applicant ’ s] contract on the implied ground of her wearing attire manifesting, in an ostensible manner, allegiance to a religion.”", "17. The applicant lodged an appeal against that judgment.", "18. By a judgment of 26 November 2009, the Versailles Administrative Court of Appeal upheld the judgment, reiterating the reasons given by the lower courts.", "19. The applicant appealed on points of law to the Conseil d ’ État. In her submissions, she emphasised that the Administrative Court of Appeal had deprived its judgment of any legal basis in that it had failed to specify the nature of the item of attire worn by her which had justified the sanction. She referred to the disproportionate nature of that sanction, and alleged that it had been incompatible with Article 9 of the Convention.", "20. By a judgment of 9 May 2011, the Conseil d ’ État declared the appeal inadmissible.", "I. Religious freedom, principles of neutrality and non-discrimination", "As reiterated in the Stasi Report submitted to the President of the Republic on 11 December 2003 (p. 22), the secularism which is enshrined in Article 1 of the 1958 Constitution requires the Republic to ensure ‘ equality of all citizens before the law, without distinction of origin, race or religion ’. For hospitals, this implies that:", "– all patients are dealt with in the same way, whatever their religious beliefs;", "– patients must not have grounds to doubt the neutrality of hospital staff.", "A. Equal treatment for patients", "...", "... The above-cited Charter of Hospitalised Patients, while reiterating patients ’ freedom of action and of expression in the religious field, points out: ‘ These rights are to be exercised with due respect for the freedom of others. Any proselytism is prohibited, whether by persons being treated in the establishment, volunteers, visitors or members of staff. ’", "In this respect, particular care must be taken to ensure that the expression of religious beliefs does not impair:", "– the quality of care and hygiene regulations (the sick person must accept the clothing imposed in view of the treatment to be administered); – the tranquillity of other hospitalised persons and of their relatives; – the proper functioning of the service.", "...", "B. Neutrality of the public hospital service and of civil servants and public employees", "The duty of neutrality was laid down in the case-law more than half a century ago ( Conseil d ’ État, 8 December 1948, Ms Pasteau, and 3 May 1950, Ms Jamet ). In a dispute concerning a school, the Conseil d ’ État issued an Opinion dated 3 May 2000 ... [See paragraph 26 above.]", "...", "In a judgment dated 17 October 2002 ( Ms E. ) [see paragraph 11 above], ..., the [Administrative] Court reiterated that the principle of neutrality applied to all public employees, and not only those working in the area of education:", "...", "In a judgment dated 27 November 2003 ( Ms Nadjet Ben Abdallah ), the Lyons Administrative Court of Appeal held that: ‘ The wearing by Ms Ben Abdallah ... of a scarf which she explicitly asserted as being religious in nature, and the repeated refusal to comply with the order to remove it, although she had been alerted to the unambiguous status of the applicable law ... amounted to a serious fault such as to provide legal grounds for the suspension measure imposed on her. ... ’", "These principles apply to all civil servants and public employees, with the exception of the ministers of the various religions mentioned in Article R. 1112-46 of the Code of Public Health. It is reiterated that public employees are employees who participate in the execution of a public service: contractual employees, interns ... You will ensure that in application of Article L. 6143-7 of the Code of Public Health the directors of public health establishments observe those principles strictly, by systematically imposing a sanction in the event of any failure to comply with these obligations or by informing the regional directors of Health and Social Affairs of any fault committed by an employee for whom the appointing body is the Prefect or the Minister.", "II. Free choice of practitioner and discrimination against a public-service employee", "...", "Lastly, this freedom of choice on the part of the patient does not enable the person being treated to object to a member of the care team performing a diagnosis or providing care on the basis of that individual ’ s known or supposed religion.", "...”", "C. Relevant case-law", "31. The relevant decisions regarding the wearing of the veil by public-service employees are cited in the above-mentioned circular (see paragraph 30 above). The Administrative Court judgment delivered on 17 October 2002 in the present case is very frequently cited, given that it confirms that the principle of neutrality is valid for all public services, and not only those operating in the area of public education. The judgment delivered on 27 November 2003 by the Lyons Administrative Court of Appeal in the case of Ms Ben Abdallah (see paragraph 30 above), which concerned a female employment inspector who refused to remove her veil, is also a leading judgment. However, no appeal was made to the Conseil d ’ État in that case. The judgment indicates that the decision on whether to suspend an employee pending a sanction was to be made in view of “all of the circumstances of the case and, among other factors, the nature and degree of the conspicuousness of the sign, the nature of the tasks entrusted to the employee, and whether he or she exercised powers conferred by public law, or representative functions”. In that judgment, the Government Commissioner emphasised that", "“... an individualised assessment of the duty of neutrality in the civil service, such as that recommended by the Strasbourg Court ( Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V), would be fully compatible with the approach adopted by the case-law of the ordinary courts for private-sector employees. With regard to the specific case of wearing the Islamic veil, the ordinary courts already take account of the nature of the duties performed and of the company image that is transmitted by the fact of an employee wearing this symbol. Under this approach, assessment criteria would then be identified which, without reneging on the principle of neutrality, would lead to an arguably more pragmatic application of them, taking account of the nature of the duties performed (education, management functions) and the circumstances in which they are carried out (contact with the public, whether or not a uniform or regulation clothing is worn, the degree of vulnerability or sensitivity of users such as pupils or patients).”", "However, he suggested that the authorities refrained from going down that path, indicating that, ultimately, it did not appear possible to compromise on civil servants ’ duty of neutrality.", "“First of all, it is a question of principle. Irrespective of their wishes, and also because they have to a certain extent chosen [this employment], civil servants belong primarily to the public sphere, the rationale for which is service in the general interest and the equal treatment of all users. As the Government Commissioner Rémy Schwartz has pointed out, the neutrality of the service is ‘ designed above all for the users; it is with the aim of respecting their convictions that the State is neutral, in order to allow for their full expression ’; it is this social role which justifies the fact that the individual who continues to exist within the public employee effaces himself or herself behind the depository of public authority, behind the persona of a civil servant who is entrusted with a public-service mission. While the concept of public service may indeed narrow in the future, it does not ultimately seem possible to compromise on the immutable principles which constitute its exceptionality, particularly the fact of its employees being subject, on account of their status, to a code of conduct and an ethical line.", "Equally, we will not dwell further on the fears already expressed concerning the gradual erosion, under the impetus of identity politics, of the essential coherence of the social fabric, characterised by adhesion to the universal values guaranteed by the State.", "Moreover, Rémy Schwartz ’ s conclusions also emphasise the impracticality of an individualised solution that would depend on the nature of the tasks and the degree of maturity of the public in question, given the variety and even the variability over time of the conceivable situations; in addition, it is not clear why an employee ’ s freedom of conscience, by dint of excessive demands in respect of religious convictions, would justify an infringement of the freedom of conscience which is also enjoyed by his or her colleagues: the interests of the service may thus also justify that, even in the absence of direct contact with the users, an employee ’ s freedom to express his or her convictions may be restricted. ...", "This reaffirmation of the principle of the absolute neutrality of the public service leads to the necessity of issuing a warning in respect of any deviation from the rules that in itself amounts to a disciplinary fault: on the basis of that finding, there would be nothing to prevent the disciplinary body, in the same wording as the Ms Marteaux Opinion, from assessing particular cases on an individual basis and from taking account of specific circumstances so that, having put an end to the culpable conduct, it can evaluate the consequences, necessarily including in its assessment the degree of compliance or, on the contrary, intransigence, on the part of the civil servant once he or she has been invited to adhere to the neutrality of the service. ...”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Principles of secularism and neutrality in public services", "21. In the case of Dogru v. France (no. 27058/05, 4 December 2008), which concerned the wearing of religious signs at school, the Court had occasion to elucidate the concept of secularism in France. It reiterated in that connection that the exercise of religious freedom in public society is directly linked to the principle of secularism. Arising out of a long French tradition, this principle has its origins in the Declaration of the Rights of Man and of the Citizen of 1789, Article 10 of which provides that “[n]o one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law”. It also appears in the key Education Acts of 1882 and 1886, which introduced State primary education on a compulsory and secular basis. The real keystone of French secularism, however, is the Act of 9 December 1905, known as the Law on the separation between Church and State, which marked the end of a long conflict between the republicans, born of the French Revolution, and the Catholic Church. Section 1 provides: “The Republic shall ensure freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.” The principle of separation is affirmed in section 2 of the Act: “The Republic may not recognise, pay stipends to or subsidise any religious denomination ...” This “secular pact” entails a number of consequences both for public services and for users. It implies an acknowledgement of religious pluralism and State neutrality towards religions.", "The principle of secularism, the requirement of State neutrality and its corollary, equality, are enshrined in Article l of the Constitution of 4 October 1958, which reads as follows:", "“France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis.”", "22. From the 1980s, the practice of wearing religious signs at school and in hospitals developed in France, giving rise to reactions based on the principle of secularism (see paragraph 29 below). On 3 July 2003 the President of the Republic set up “a commission to study the application of the principle of secularism in the Republic”, which was instructed “to reflect in an in-depth and serene manner ... on the practical requirements which should result for everyone from compliance with the principle of secularism”. The commission ’ s report, submitted to the President of the Republic on 11 December 2003, described the threat to secularism in schools and public services. The law of 15 March 2004, regulating the wearing of signs or dress by which pupils overtly manifest a religious affiliation, was adopted as a consequence of this report (see Dogru, cited above, §§ 30-31).", "23. It was also following this report that, on a referral by the Prime Minister, the Supreme Council for Integration ( Haut conseil à l ’ intégration ) submitted in January 2007 an opinion containing a “draft charter for secularism in public services”. This draft was included in the Prime Minister ’ s circular no. 5209/SG of 13 April 2007 on the Charter for secularism in public services, which reiterates the rights and duties of public-sector employees and also of persons using public services.", "“ Public-sector employees", "All public officials have a duty of strict neutrality. They must treat all persons equally and respect their freedom of conscience.", "The fact of a public official manifesting his or her religious convictions in the exercise of his or her duties shall amount to a breach of his or her obligations.", "It shall be for the managers of public services to ensure that the principle of secularism is applied in these services.", "Freedom of conscience shall be guaranteed to public officials. They shall be granted authorisations for absence to participate in religious festivals where this is compatible with the requirements of the normal running of the service.", "Users of public services", "All users shall be equal before the public service.", "The users of public services shall be entitled to express their religious convictions in so far as this is compatible with respect for the neutrality of the public service, its smooth running and the requirements of public order, security, health and hygiene.", "The users of public services shall refrain from any form of proselytism.", "The users of public services may not request the removal of a public official or of other users, or demand that the functioning of the public service or of a public facility be modified. However, the service shall attempt to take into consideration users ’ convictions, in compliance with the rules to which it is subject and its smooth functioning.", "Where necessary to verify identity, users must comply with the attendant obligations.", "Users who are accommodated on a full-time basis by a public service, particularly within medico-social establishments, hospitals or prisons, shall be entitled to respect for their beliefs and may participate in practising their religion, subject to the restrictions necessary to ensure the smooth running of the service.”", "24. The Constitutional Council recently indicated that the principle of secularism is one of the rights and freedoms guaranteed by the Constitution and that it must be defined as follows.", "“... pursuant to the first three sentences of the first paragraph of Article 1 of the Constitution, ‘ France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. ’ The principle of secularism is one of the rights and freedoms guaranteed by the Constitution; it follows that the State is neutral; it also follows that the Republic does not recognise any religious denomination; the principle of secularism requires, in particular, respect for all beliefs and the equality of all citizens before the law irrespective of religion, and requires that the Republic guarantee free participation in religious worship; it implies that the Republic does not pay stipends to any religious denomination;” (Decision no. 2012-297 QPC, 21 February 2013, Association for the Promotion and Expansion of Secular Thought [remuneration of pastors in the consistorial churches in the départements of Bas-Rhin, Haut-Rhin and Moselle]).", "25. The civil service includes all public officials, that is, all of the members of staff employed by a public entity, assigned in principle to an administrative public service and subject to a public-law regime. The civil service and the general rules applicable to it are organised into three branches: the State civil service, the local and regional civil service, and the hospital-based civil service. Public employees ’ freedom of opinion, including religious opinion, is guaranteed by section 6 of the Law of 13 July 1983 laying down the rights and duties of civil servants. Allegiance to a religion may not be recorded in a public employee ’ s file, and it cannot be used as a discriminatory criterion against a candidate or a contractual employee seeking to obtain a permanent post; certain adjustments to working time are authorised in the name of religious freedom, provided that they are compatible with the smooth running of the service.", "At the same time, these employees ’ freedom of conscience must be reconciled with the requirement of religious neutrality which is a distinctive feature of the public service. Public employees have a professional duty of neutrality. In carrying out his or her duties, a public employee must ensure equal treatment of citizens, whatever their convictions or beliefs. The principle of State neutrality implies that “the authorities and the public services must [not only] provide all the guarantees of neutrality; they must also give every appearance of that neutrality, so that the user can be in no doubt of it. It follows that every employee of a public service is subject to a particularly strict obligation of neutrality” (National Advisory Commission on Human Rights, Opinion on Secularism, Official Gazette no. 0235 of 9 October 2013). The duty of neutrality incumbent on public employees has been set out in detail in the case-law (see paragraph 26 below). However, a bill on the professional ethics and rights and obligations of civil servants, currently under discussion, was adopted by the National Assembly at its first reading on 7 October 2015. This text seeks to introduce into the Law of 13 July 1983 an obligation on civil servants to exercise their functions in compliance with the principle of secularism, by refraining from manifesting their religious opinion while carrying out their duties.", "The Constitutional Council has also held on several occasions that neutrality is a “fundamental principle of the public service” and that the principle of equality is its corollary (Constitutional Court decisions nos. 86 ‑ 217 DC of 18 September 1986, and 96-380 DC of 23 July 1996).", "26. According to the Conseil d ’ État ’ s case-law, the principle of the neutrality of public services justifies placing limitations on the manifesting of religious beliefs by employees in exercising their functions. The Conseil d ’ État took a stand on this issue in the area of education many years ago: the fact of an employee in the State education service manifesting his or her religious beliefs while carrying out his or her duties is a breach of the “duty of strict neutrality that is required of every employee working in a public service” ( Conseil d ’ État (CE), 8 December 1948, Ms Pasteau, no. 91.406; CE, 3 May 1950, Ms Jamet, no. 98.284). In its Opinion of 3 May 2000 (CE, Opinion, Ms Marteaux, no. 217017), concerning the decision by a Director of Education to dismiss a secondary-school study supervisor who wore a headscarf, it affirmed that the principles of secularism and neutrality applied to all public services and gave a detailed explanation of the prohibition on employees ’ manifesting their religious beliefs while carrying out their duties.", "“1. It follows from the constitutional and legislative texts that the principle of freedom of conscience and that of the secular nature of the State and the neutrality of public services apply to all those services;", "2. Although employees of the State education service, like all public-sector employees, enjoy the freedom of conscience which prohibits any discrimination in access to posts and in career development based on their religion, the principle of secularism means that, in the context of the public service, they do not have the right to manifest their religious beliefs;", "It is not appropriate to distinguish between employees in this public service on the basis of whether or not they carry out teaching duties;", "3. It follows from the above considerations that the fact of employees of the State education service manifesting their religious beliefs while carrying out their duties, in particular by wearing a sign intended to indicate their allegiance to a religion, amounts to a breach of their obligations;", "The consequences of this breach, especially with regard to disciplinary measures, must be assessed by the authorities with due regard to the nature and degree of ostentatiousness of the sign in question, and of the other circumstances in which the breach is found, and are subject to judicial review;”", "This case-law has been extended to all public services. In a thematic file entitled “The administrative courts and the expression of religious convictions” published on its Internet site in November 2014, the Conseil d ’ État indicates with regard to the ban prohibiting employees from manifesting their religious convictions while on duty, in addition to what is stated in its Opinion of 3 May 2000, as follows.", "“The administrative courts are generally required to examine these questions in the context of disciplinary proceedings. The lawfulness of the sanction will then depend on how the religious convictions were expressed, the hierarchical level of the employee and the duties carried out by him or her, and also the warnings which he or she may have received. The sanction must also be proportionate. The Conseil d ’ État has thus upheld the sanction imposed on a public-sector employee who displayed his professional email address on the site of a religious association (CE, 15 October 2003, M.O., no. 244428), and against another who had distributed religious documents to users during his working hours (CE, 19 February 2009, M.B., no. 311633).”", "27. The requirement of neutrality is applicable to public services even if they are managed by private-law entities (CE, Sect., 31 January 1964, CAF de l ’ arrondissement de Lyon ). This aspect was also reiterated recently by the Court of Cassation in a case concerning the Seine-Saint-Denis Health Insurance Office ( Caisse primaire d ’ assurance maladie ), in respect of an employee working as a “health benefits administrator” who had been dismissed on the ground that she was wearing an Islamic headscarf in the form of a turban, in breach of the provisions of the internal rules. The Social Division of the Court of Cassation held that “the principles of neutrality and of the secular nature of the public service are applicable to the public services as a whole, including where they are provided by private-law entities” and that “the employees of health insurance offices ... are ... subject to specific constraints arising from the fact that they are engaged in a public-service mission, constraints which forbid them, inter alia, from manifesting their religious beliefs by external signs, especially through their attire;” (Cass. soc., 19 March 2013, no. 12 ‑ 11.690):", "“... having noted that the employee carries out her duties in a public service, and given the nature of the activity carried out by the Insurance Office, which consists, in particular, of providing sickness benefits to persons insured under the social security scheme in the Seine-Saint-Denis département, and that she works, specifically, as a ‘ sickness benefits administrator ’ in a centre which receives an average of 650 users per day, it being irrelevant whether or not the employee was in direct contact with the public, the Court of Appeal was able to conclude that the restriction imposed by the Insurance Office ’ s internal rules was necessary in order to implement the principle of secularism, in order to guarantee the neutrality of the public service to the centre ’ s users;”", "28. Recently, in the course of judicial proceedings that were widely reported in the media, the Social Division of the Court of Cassation, in a judgment of 19 March 2013, initially declared illegal the dismissal of an employee in a private nursery whose internal rules called for “compliance with the principles of secularism and neutrality” on account of her refusal to remove her Islamic headscarf. Faced with the resistance of the Paris Court of Appeal, to which the case had been remitted, the plenary Court of Cassation ultimately upheld those proceedings in a judgment of 25 June 2014. On the occasion of the judgment of 19 March 2013 and of the judgment of the same date described in paragraph 27 above, the “Defender of Rights” (the French Ombudsman) asked the Conseil d ’ État to prepare a report (Report adopted by the General Assembly of the Conseil d ’ État on 19 December 2013). The Ombudsman wished to have the Conseil d ’ État ’ s opinion on various matters relating to the application of the principle of religious neutrality in the public services, in order to respond to complaints raising the question of the line between a public-service mission, participation in a public service, a mission in the general interest for which certain private structures had responsibility, and the application of the principle of neutrality and secularism. In its report, the Conseil d ’ État reiterated, inter alia, as follows.", "“1. Freedom of religious convictions is general. However, restrictions may be placed on their expression in certain circumstances. The principle of the secular nature of the State, which concerns the relations between the public authorities and private persons, and the principle of the neutrality of public services, a corollary of the principle of equality which governs the operation of the public services, give rise to a particular requirement of religious neutrality in these services. This requirement applies in principle to all the public services, but does not apply, as such, outside these services ...", "2. Labour law respects employees ’ freedom of conscience and prohibits discrimination in any form. It may, however, authorise restrictions on the freedom to manifest religious opinions or beliefs provided that these restrictions are justified by the nature of the task to be carried out and are proportionate to the aim pursued ...", "4. The requirement of religious neutrality prohibits employees of public bodies and employees of private-law entities to which the State has entrusted the management of a public service from manifesting their religious convictions while carrying out their duties. This prohibition must, however, be reconciled with the principle, arising from Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that any infringements of freedom of religious expression must be proportionate. ...”", "B. Principles of neutrality in the public hospital service", "29. The 2013-14 annual report by the Secularism Observatory, in the section entitled “ Overview of secularism in health establishments” stated that, following the report by the Commission on the application of the principle of secularism in the Republic (see paragraph 22 above), legislation on secularism in hospitals had been envisaged. That Commission ’ s report indicated as follows.", "“... Nor are hospitals exempt from such matters. They have already been confronted with certain religious prohibitions, such as the Jehovah ’ s Witnesses ’ refusal to accept transfusions. More recently, an increasing number of husbands or fathers have refused on religious grounds to have their wives or daughters cared for or delivered in childbirth by male doctors. In consequence, some women have been deprived of epidurals. Nurses have been refused on the grounds of their supposed religious affiliation. More generally, certain religious concerns on the part of patients may disrupt the functioning of a hospital: corridors are transformed into private prayer areas; parallel canteens have been organised alongside the hospital canteens to serve traditional food, in breach of the health regulations.", "...", "Certain religious claims are now being made by public employees. Public-service employees have demanded the right to wear a kippa or a veil indicating their denominational allegiance in the workplace. Trainee doctors have recently expressed the same wish.", "Such conduct, which is contrary to the principle of neutrality underlying the public service, is a matter of serious concern. ...”", "The Secularism Observatory explained that the Ministry of Health had “in fact regulated the issue by means of a circular” (see paragraph 30 below) and that, at this stage, the existing legal arsenal was sufficient. It specified that the information obtained from health-care establishments indicated that the situation had become more peaceful and was under control. With regard to hospital staff, the most frequent problems were veil-wearing, prayers at certain times of the day and requests for adjustments to working schedules in order not to have to work on religious holidays. It noted that the information available “show[ed] that, with appropriate dialogue, these situations are resolved by a settlement that complies with the principle of public employees ’ neutrality”.", "30. The circular of 6 May 1995 on the rights of hospitalised patients, which includes a Charter of Hospitalised Patients, stated that the rights of patients “are to be exercised in compliance with the freedom of others” (circular DGS/DH/95, no. 22). In addition to the guidance with regard to the users of the public hospital service described above (see paragraph 23 sbove), circular no. DHOS/G/2005/57 of 2 February 2005 on secularism in health institutions provides as follows.", "“...", "III. COMPARATIVE LAW", "32. In Eweida and Others v. the United Kingdom (nos. 48420/10 and 3 others, § 47, ECHR 2013), the Court indicated that an analysis of the law and practice relating to the wearing of religious symbols at work across twenty-six Council of Europe Contracting States demonstrated that", "“... the majority of States the wearing of religious clothing and/or religious symbols in the workplace is unregulated. In three States, namely Ukraine, Turkey and some cantons of Switzerland, the wearing of religious clothing and/or religious symbols for civil servants and other public-sector employees is prohibited, but in principle it is allowed to employees of private companies. In five States – Belgium, Denmark, France, Germany and the Netherlands – the domestic courts have expressly admitted, at least in principle, an employer ’ s right to impose certain limitations upon the wearing of religious symbols by employees; however, there are neither laws nor regulations in any of these countries expressly allowing an employer to do so. In France and Germany, there is a strict ban on the wearing of religious symbols by civil servants and State employees, while in the three other countries the attitude is more flexible. A blanket ban on wearing religious clothing and/or symbols at work by private employees is not allowed anywhere. On the contrary, in France it is expressly prohibited by law. Under French legislation, in order to be declared lawful any such restriction must pursue a legitimate aim, relating to sanitary norms, the protection of health and morals, the credibility of the company ’ s image in the eyes of the customer, and must also pass a proportionality test.”", "33. Recently, in a judgment of 27 January 2015, the German Constitutional Court held that a general prohibition on the wearing of the veil by female teachers in State schools was incompatible with the Constitution, unless it constitutes a sufficiently tangible risk to the State ’ s neutrality or a peaceful environment in schools (1 BvR 471/10, 1 BvR 1181/10).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "34. The applicant alleged that the refusal to renew her contract as a social worker had been contrary to her freedom to manifest her religion as laid down in Article 9 of the Convention, which provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "36. The applicant submitted that on 11 December 2000 no legal provision explicitly prohibited public employees, whether civil servants or contract workers, from wearing a religious symbol in the exercise of their functions. The Conseil d ’ État ’ s Opinion of 3 May 2000 (see paragraph 26 above), relied upon by the Government, concerned only the public education services, and the circular of 2 February 2005 on secularism in health institutions (see paragraph 30 above) had not yet been published. She considered, on the contrary, that on the date in question no particular restrictions had been placed on the freedom to manifest one ’ s religion, including for public employees. In her view, the applicable law had been set out in the Conseil d ’ État ’ s Opinion of 27 November 1989 on the compatibility with the principle of secularism of wearing signs at school indicating affiliation to a religious community; in that Opinion, the Conseil d ’ État accepted that the principle of neutrality was in no way called into question by the simple fact of wearing a religious symbol, provided that its wearer could not be accused of any proselytising conduct (the Opinion is quoted in full in Dogru v. France, no. 27058/05, § 26, 4 December 2008). She concluded from this that the interference had not been prescribed by “law” for the purposes of the Convention.", "37. Furthermore, the applicant considered that the impugned interference did not pursue a legitimate aim, given that no incident or problem had arisen in the course of her employment within the CASH. She concluded from the Court ’ s case-law that the State could limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashed with the aim of protecting the rights and freedoms of others, public order and public safety (she referred to Leyla Şahin v. Turkey [GC], no. 44774/98, § 111, ECHR 2005 ‑ XI, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, § 92, ECHR 2003 ‑ II).", "38. For the remainder, the applicant indicated that she wore a simple head covering, which was anodyne in appearance and was intended to hide her hair, and that this did not, in itself, infringe the neutrality of the public service. She submitted that the fact of wearing this head covering had posed no threat to security and public order, nor any disruption within her department, since the wearing of such a head covering did not in itself amount to an act of proselytism, which presupposed conduct followed for the purpose of encouraging adherence to a belief system. According to the applicant, only the wearing of a full covering such as the burqa or the niqab ought to be perceived as a symbol of social separatism and of a refusal to integrate and be subject to a specific restriction.", "39. The applicant specified that she had been able to wear her head covering until a change of personnel within the hospital ’ s management team, and that no comment had ever been made to her prior to that change, either by the hospital staff or by the patients themselves. She submitted several statements dating from December 2000, drawn up by doctors in the psychiatric unit concerned, praising her professional abilities. She considered that the Government had provided no evidence of the alleged disruption to the department ’ s work and submitted that the refusal to renew her contract had been based solely on her adherence to the Muslim religion and that it had been disproportionate in a democratic society.", "40. The applicant emphasised that France was isolated in this regard. She argued that in the majority of European countries the wearing of a religious sign such as the headscarf, by pupils or State employees, was not subject to particular restrictions. With regard to the former, she submitted that the French law of 15 March 2004 (see Dogru, cited above, § 30), which was inapplicable in the present case and regulated the wearing of symbols or dress displaying religious affiliation in both primary and secondary State schools, had given rise to general incomprehension. State employees were authorised to wear a headscarf in many countries: Denmark, Sweden, Spain, Italy, Greece and the United Kingdom. The applicant expanded on the situation in the United Kingdom, in which the wearing of the Islamic headscarf in schools and in the public services was permitted, as was the wearing of religious head coverings by police officers, soldiers, motorcyclists and construction workers. Lastly, the applicant considered it useful to point out that Christian religious symbols were tolerated in public areas (crucifixes in classrooms, courts and administrative buildings) in Italy, Ireland and Austria, as were non-Christian symbols.", "(b) The Government", "41. The Government considered that the impugned interference was “in accordance with the law”, since at the relevant time the domestic law clearly set out the principle of strict neutrality required from all public officials, and the penalties to which they were liable in the event of failure to comply with this principle. The “law” in question, within the meaning of the Court ’ s case-law, included, firstly, the 1905 Act, which had enshrined the State ’ s neutrality vis-à-vis religions, and Article 1 of the Constitution, which affirmed the principle that all citizens are equal before the law (see paragraph 21 above). It also included the Law of 13 July 1983 laying down the rights and duties of civil servants, section 29 of which provided that any misconduct committed by a civil servant in the course of or in connection with the performance of his or her duties could lead to a disciplinary sanction. In addition, both the case-law of the administrative courts over more than fifty years (see paragraph 26 above) and that of the Constitutional Council (see paragraph 25 above) reiterated the obligation of neutrality incumbent on all public servants in carrying out their functions. The Conseil d ’ État, in its Opinion of 3 May 2000, also emphasised the pre-existing general nature of the principle of neutrality, before applying it in the case before it.", "42. The Government added that the applicant had voluntarily signed up to the hospital civil service and its obligations, which included the obligation on every employee to maintain neutrality in one ’ s duties, when she accepted the various contracts binding her to the CASH. She could not have been unaware of these rules, in view of the reminders about her obligations given by the Director of Human Resources on 30 November 2000 and, previously, by a manager from the hospital ’ s social and education unit in an interview held after complaints had been received from patients who had refused to meet her on account of her choice of clothing.", "43. According to the Government, the prohibition on public employees ’ manifesting their religious beliefs was underpinned by the need to preserve the constitutional principle of secularism on which the French Republic was founded. As the Court had already accepted, the neutrality imposed by a State on its employees thus pursued the legitimate aim of protecting the rights and freedoms of others (they referred to Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001-V).", "44. The Government submitted that the refusal to renew the applicant ’ s contract had been necessary in a democratic society. The principle of the neutrality of public services required that employees could not wear any religious symbol, of any form, even if they did not engage in proselytism. In this connection they referred to the Court ’ s case-law with regard to civil servants and their duty of discretion and choice of attire (specifically, Vogt v. Germany, 26 September 1995, § 53, Series A no. 323, and Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006 ‑ II). They emphasised the particular importance of the principle of neutrality in the circumstances of this case, where it was difficult to assess the impact that a particularly visible external sign could have on the freedom of conscience of fragile and impressionable patients. The Government added that certain patients had specifically refused to meet the applicant, and that this situation had created a general climate of tension and difficulties within the unit, requiring the applicant ’ s colleagues and some social workers to handle sensitive situations. It was in the light of this general climate that the CASH had taken the contested decision, after reminding the applicant on several occasions of the duty of neutrality, and not on account of the latter ’ s professional skills, which had always been acknowledged. The Government considered that the contested decision had complied with the requirement to weigh up the interests at stake; it had been the consequence of the applicant ’ s refusal to comply with the rules applicable to every public employee, of which she had been perfectly aware, and not, as she alleged, on account of her religious beliefs. Lastly, although the applicant ’ s wearing of the religious symbol had been accepted by the hospital until 2000, this factor did not, in the Government ’ s view, render the contested interference unnecessary. They reiterated that “the fact that an existing rule is applied less rigorously because of a specific context does not mean that there is no justification for the rule or that it is no longer binding in law” (citing Kurtulmuş, cited above).", "45. Lastly, the Government submitted that the measure appeared proportionate to the aim pursued. They emphasised that, under French law, a public servant employed under contract was not automatically entitled to renewal of his or her contract. It was for the public authority to assess freely whether or not it was appropriate to renew it, and only an argument based on the employee ’ s way of working or on the interests of the department could justify a refusal to renew. In the present case, and as the domestic courts had noted, it was indeed in the interests of the department that the decision not to renew the contract had been taken, and that decision had not been manifestly disproportionate. The Government concluded that the interference had been justified as a matter of principle and proportionate to the aim pursued.", "2. The Court ’ s assessment", "46. Firstly, the Court observes that the CASH always used the word “head covering” (“ coiffe ”) to describe the applicant ’ s attire. The applicant submitted to the Court a photograph of herself, surrounded by her colleagues, in which she is seen wearing a head covering which conceals her hair, her neck and her ears, and her face is fully visible. This head covering, which resembles a scarf or an Islamic veil, has been described as a veil by the majority of the domestic courts which have examined the dispute, and it is this latter term that the Court will use in examining the applicant ’ s complaint.", "(a) Whether there was an interference", "47. The Court notes that the non-renewal of the applicant ’ s contract was explained by her refusal to remove her veil which, while not described as such by the authorities, was the undisputed expression of her adherence to the Muslim faith. The Court has no reason to doubt that the wearing of this veil amounted to a “manifestation” of a sincere religious belief, protected by Article 9 of the Convention (see, mutatis mutandis, Leyla Şahin, cited above, § 78; Bayatyan v. Armenia [GC], no. 23459/03, § 111, ECHR 2011; and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, §§ 82, 89 and 97, ECHR 2013). As the applicant ’ s employer, it is the State which must assume responsibility for the decision not to renew her contract and to bring disciplinary proceedings against her. This measure must therefore be regarded as an interference with her right to freedom to manifest her religion or belief as guaranteed by Article 9 of the Convention (see Eweida and Others, cited above, §§ 83-84 and 97).", "(b) Whether the interference was justified", "(i) Prescribed by law", "48. The expression “prescribed by law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and compatible with the rule of law. The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention. According to the Court ’ s settled case-law, the concept of “law” must be understood in its “substantive” sense, not its “formal” one. It therefore includes everything that goes to make up the written law, including enactments of lower rank than statutes, and the relevant case-law authority (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014, and Dogru, cited above, § 52).", "49. In the present case, the applicant emphasised that there had been nothing prohibiting the wearing of religious symbols in French legislation on 11 December 2000. She considered that the Conseil d ’ État ’ s Opinion of 3 May 2000 concerned only teaching staff, and that the Opinion of 27 November 1989 relating to the wearing of religious signs in schools represented the applicable “law” (see paragraph 36 above). The Court notes that this latter Opinion concerned only the acknowledged right of pupils to manifest their religious beliefs and that it did not cover the situation of public employees.", "50. The Court observes that Article 1 of the French Constitution provides, in particular, that France is a secular Republic which ensures the equality of all citizens before the law. It notes that, in the law of the respondent State, this constitutional provision establishes the basis of the State ’ s duty of neutrality and impartiality with regard to all religious beliefs or the ways in which those beliefs are expressed, and that it has been interpreted and read in conjunction with its application by the national courts. In this connection, the Court notes that it transpires from the administrative courts ’ case-law that the neutrality of public services is an element of State secularism and that, since 1950, the Conseil d ’ État has asserted the “duty of strict neutrality which is required from all [public] employees”, particularly in the area of education (see paragraphs 26-27 above). Moreover, it notes that the Constitutional Council has emphasised that the principle of neutrality, the corollary of which is the principle of equality, is a fundamental principle of the public service (see paragraph 25 above). The Court concludes from this that the case-law of the Conseil d ’ État and the Constitutional Council amount to a sufficiently serious legal basis to enable the national authorities to restrict the applicant ’ s religious freedom.", "51. Nonetheless, the Court acknowledges that the content of the obligation of neutrality as affirmed in this manner, although it was such as to alert the applicant, did not contain any specific reference or application to the profession which she exercised. It therefore accepts that, when she took up her post, the applicant could not have foreseen that the expression of her religious beliefs would be subject to restrictions. However, it considers that, from the date of publication of the Conseil d ’ État ’ s Opinion of 3 May 2000, issued more than six months before the decision not to renew her contract, the terms of which were brought to her attention by the hospital administration (see paragraph 8 above), these restrictions were set out with sufficient clarity for her to foresee that the refusal to remove her veil amounted to a fault leaving her liable to a disciplinary sanction. That Opinion, although responding to a specific question concerning the public education service, indicated that the principle of State secularism and the neutrality of public services applied to the public service as a whole. It stressed that employees must enjoy freedom of conscience, but that this freedom must be consistent, in its manner of expression, with the principle of neutrality of the relevant service, which precludes the wearing of a sign intended to indicate their adherence to a religion. In addition, it specifies that in the event of failure to comply with this obligation of neutrality the disciplinary consequences are to be assessed on a case-by-case basis, in the light of the particular circumstances (see paragraph 26 above). The Court thus notes that the Opinion of 3 May 2000 clearly lays down the basis for the requirement of religious neutrality by public employees when carrying out their duties, having regard to the principles of secularism and neutrality, and meets the requirement as to the foreseeability and accessibility of “the law” within the meaning of the Court ’ s case-law. The measure in issue was therefore prescribed by law within the meaning of Article 9 § 2.", "(ii) Legitimate aim", "52. Unlike the parties in Leyla Şahin (cited above, § 99), the applicant and the Government do not agree on the aim of the contested restriction. The Government referred to the legitimate aim of protecting the rights and freedoms of others implied by the constitutional principle of secularism, while the applicant denied that any incident had occurred while she was carrying out her duties which could have given grounds for the interference in her right to freedom to manifest her religious beliefs.", "53. Having regard to the circumstances of the case and the reasons given for not renewing the applicant ’ s contract, namely the requirement of religious neutrality in a context where users of the public service were in a vulnerable situation, the Court considers that the interference complained of pursued the legitimate aim of protecting the rights and freedoms of others (see, mutatis mutandis, Leyla Şahin, cited above, §§ 99 and 116; Kurtulmuş, cited above; and Ahmet Arslan and Others v. Turkey, no. 41135/98, § 43, 23 February 2010). In the present case the purpose was to ensure respect for all of the religious beliefs and spiritual orientations held by the patients who were using the public service and were recipients of the requirement of neutrality imposed on the applicant, by guaranteeing them strict equality. The aim was also to ensure that these users enjoyed equal treatment, without distinction on the basis of religion. In this connection, the Court reiterates that it has found that an employer ’ s policies to promote equality of opportunity or to avoid any discriminatory conduct vis-à-vis other persons pursued the legitimate aim of the protection of the rights of others (see, mutatis mutandis, the cases of Ms Ladele and Mr McFarlane, in Eweida and Others, cited above, §§ 105-06 and 109). It also reiterates that upholding the principle of secularism is an objective that is compatible with the values underlying the Convention (see Leyla Şahin, cited above, § 114). In those circumstances, the Court is of the view that the ban on the applicant manifesting her religious beliefs while carrying out her duties pursued the aim of protecting the “rights and freedoms of others” and that this restriction did not necessarily need to be additionally justified by considerations of “public safety” or “protection of public order”, which are set out in Article 9 § 2 of the Convention.", "(iii) Necessary in a democratic society", "(α) General principles", "54. With regard to the general principles, the Court refers to the judgment in Leyla Şahin (cited above, §§ 104-11), in which it reiterated that while freedom of conscience and religion is one of the foundations of a “democratic society” (ibid., § 104; see also in respect of the general principles, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260 ‑ A), Article 9 does not, however, protect every act motivated or inspired by a religion or belief. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on the freedom to manifest one ’ s religion or belief in order to reconcile the interests of the various groups and ensure that everyone ’ s beliefs are respected. This follows both from paragraph 2 of Article 9 and from the State ’ s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (see Leyla Şahin, cited above, § 106).", "55. In that judgment, the Court also reiterated that it had frequently emphasised the State ’ s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. Thus, the State ’ s duty of neutrality and impartiality is incompatible with any power on the State ’ s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed, and the Court considered that this duty requires the State to ensure mutual tolerance between opposing groups. Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other ( ibid., § 107).", "56. Moreover, where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. The Court emphasised that this would notably be the case when it came to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. Referring, inter alia, to the above-cited Dahlab case, the Court found that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society, and that the meaning or impact of the public expression of a religious belief would differ according to time and context. It noted that rules in this sphere would consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. It concluded that the choice of the extent and form such regulations should take must inevitably be left up to a point to the State concerned, as it would depend on the specific domestic context (see Leyla Şahin, cited above, § 109).", "57. In the above-cited Kurtulmuş case, which concerned a ban on an associate professor at Istanbul University wearing the Islamic scarf, the Court emphasised that the principles set out in paragraph 51 above also apply to members of the civil service: “[a]lthough it is legitimate for a State to impose on public servants, on account of their status, a duty to refrain from any ostentation in the expression of their religious beliefs in public, public servants are individuals and, as such, qualify for the protection of Article 9 of the Convention”. It stated on that occasion, referring to the above-cited cases of Leyla Şahin and Dahlab, that “in a democratic society the State [is] entitled to place restrictions on the wearing of the Islamic headscarf if it [is] incompatible with the pursued aim of protecting the rights and freedoms of others and public order”. Applying those principles, the Court noted that “the rules on dress apply equally to all public servants, irrespective of their functions or religious beliefs. As public servants act as representatives of the State when they perform their duties, the rules require their appearance to be neutral in order to preserve the principle of secularism and its corollary, the principle of a neutral public service. The rules on dress require public servants to refrain from wearing a head covering on work premises” (see Kurtulmuş, cited above). It accepted, having regard in particular to the importance of the principle of secularism, a fundamental principle of the Turkish State, that the ban on wearing the veil was “justified by imperatives pertaining to the principle of neutrality in the public service”, and reiterated in this regard, referring to the above-cited judgment in Vogt, that it had “in the past accepted that a democratic State may be entitled to require public servants to be loyal to the constitutional principles on which it is founded”.", "58. Again in the context of public education, the Court has stressed the importance of respect for the State ’ s neutrality in the context of teaching activity in public primary education, with very young children who are more easily influenced (see Dahlab, cited above).", "59. In several recent cases concerning freedom of religion at work, the Court has stated that “[g]iven the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate” (see Eweida and Others, cited above, § 83).", "(β) Application in the present case", "60. The Court notes at the outset that, in addition to reminding the applicant of the principle of the neutrality of public services, the authorities had indicated to her the reasons for which this principle justified special application with regard to a social worker in the psychiatric unit of a hospital. The authorities had identified the problems to which her attitude had given rise within the unit in question and had attempted to persuade her to refrain from displaying her religious beliefs (see paragraph 8 above).", "61. The Court observes that the national courts validated the refusal to renew the applicant ’ s contract, explicitly stating that the principle of the neutrality of public employees applied to all the public services, and not solely to education, and that it was intended to protect users from any risk of being influenced or infringement of their own freedom of conscience. In its judgment of 17 October 2002, the Administrative Court had attached importance to the fragility of these users, and held that the requirement of neutrality imposed on the applicant was all the more pressing in that she was in contact with patients who were fragile or dependent (see paragraph 11 above).", "62. The Court further observes that the applicant has not been accused of acts of pressure, provocation or proselytism with regard to hospital patients or colleagues. However, the fact of wearing her veil was perceived as an ostentatious manifestation of her religion, incompatible in this case with the neutral environment required in a public service. It was thus decided not to renew her contract and to bring disciplinary proceedings against her on account of her persistence in wearing the veil while on duty.", "63. The principle of secularism within the meaning of Article 1 of the French Constitution, and the resultant principle of neutrality in public services, were the arguments used against the applicant, on account of the need to ensure equal treatment for the users of the public establishment which employed her and which required, whatever her religious beliefs or her sex, that she comply with the strict duty of neutrality in carrying out her duties. According to the domestic courts, this entailed ensuring the State ’ s neutrality in order to guarantee its secular nature and thus protect the users of the service, namely the hospital ’ s patients, from any risk of influence or partiality, in the name of their right to freedom of conscience (see paragraphs 11, 16 and 25 above; see also the wording subsequently used in the circular on secularism in health institutions, paragraph 30 above). Thus, it is clear from the case file that it was indeed the requirement of protection of the rights and freedoms of others, that is, respect for the freedom of religion of everyone, and not the applicant ’ s religious beliefs, which lay behind the contested decision.", "64. The Court has already accepted that States may rely on the principles of State secularism and neutrality to justify restrictions on the wearing of religious symbols by civil servants, particularly teachers working in the public sector (see paragraph 57 above). It is the latter ’ s status as public employees which distinguishes them from ordinary citizens – “who are by no means representatives of the State engaged in public service” and are not “bound, on account of any official status, by a duty of discretion in the public expression of their religious beliefs” (see Ahmet Arslan and Others, cited above, § 48) – and which imposes on them religious neutrality vis-à-vis their students. Likewise, the Court can accept in the circumstances of the present case that the State, which employs the applicant in a public hospital where she is in contact with patients, is entitled to require that she refrain from manifesting her religious beliefs when carrying out her duties, in order to guarantee equality of treatment for the individuals concerned. From this perspective, the neutrality of the public hospital service may be regarded as linked to the attitude of its staff, and requires that patients cannot harbour any doubts as to the impartiality of those treating them.", "65. It thus remains for the Court to verify that the impugned interference is proportionate to that aim. With regard to the margin of appreciation left to the State in the present case, the Court notes that a majority of the Council of Europe member States do not regulate the wearing of religious clothing or symbols in the workplace, including for civil servants (see paragraph 32 above) and that only five States (out of twenty-six), one of them France, have been identified as prohibiting completely the wearing of religious signs by civil servants. However, as pointed out above (see paragraph 56), consideration must be given to the national context of State-Church relations, which evolve over time in line with changes in society. Thus, the Court notes that France has reconciled the principle of the neutrality of the public authorities with religious freedom, thus determining the balance that the State must strike between the competing private and public interests or competing Convention rights (see paragraphs 21-28 above), and that this left the respondent State a large margin of appreciation (see Leyla Şahin, cited above, § 109, and Obst v. Germany, no. 425/03, § 42, 23 September 2010). Equally, the Court has already indicated that in the hospital environment the domestic authorities must be allowed a wide margin of appreciation, as hospital managers are better placed to take decisions in their establishments than a court, particularly an international court (see Eweida and Others, cited above, § 99).", "66. The main question which arises in the present case is therefore whether the State overstepped its margin of appreciation in deciding not to renew the applicant ’ s contract. On this point, the Court notes that public employees in France enjoy the right to respect for their freedom of conscience, which entails, in particular, a ban on any faith-based discrimination in access to posts or in career development. This freedom is guaranteed, in particular, by section 6 of the Law of 13 July 1983 laying down the rights and duties of civil servants, and is to be reconciled with the requirements of the proper functioning of the service (see paragraph 25 above). However, they are prohibited from manifesting their religious beliefs while carrying out their duties (see paragraphs 25-26 above). Thus, the Opinion of 3 May 2000, cited above, clearly states that public employees ’ freedom of conscience must be reconciled, albeit solely in terms of how it is given expression, with the obligation of neutrality. The Court reiterates that the reason for this restriction lies in the principle of State secularism, which, according to the Conseil d ’ État, “concerns the relations between the public authorities and private persons” (see paragraph 28 above), and the principle of the neutrality of public services, a corollary of the principle of equality which governs the functioning of these services and is intended to ensure respect for all beliefs.", "67. The Court emphasises, however, that it has already approved strict implementation of the principles of secularism (now included among the rights and freedoms safeguarded by the Constitution, see paragraph 24 above) and neutrality, where this involved a fundamental principle of the State, as in France (see, mutatis mutandis, Kurtulmuş, and Dalhab, both cited above). The principles of secularism and neutrality give expression to one of the rules governing the State ’ s relations with religious bodies, a rule which implies impartiality towards all religious beliefs on the basis of respect for pluralism and diversity. The Court considers that the fact that the domestic courts attached greater weight to this principle and to the State ’ s interests than to the applicant ’ s interest in not limiting the expression of her religious beliefs does not give rise to an issue under the Convention (see paragraphs 54-55 above).", "68. It observes in this connection that the obligation of neutrality applies to all public services, as reiterated on numerous occasions by the Conseil d ’ État and, recently, by the Court of Cassation (see paragraphs 26-27 above), and that the fact of employees wearing a sign of religious affiliation in the course of their duties amounts, as a matter of principle, to a breach of their obligations (see paragraphs 25-26 above). There is no indication in any text or decision by the Conseil d ’ État that the impugned obligation of neutrality could be adjusted depending on the employee and his or her duties (see paragraphs 26 and 31 above). The Court is mindful that this is a strict obligation which has its roots in the traditional relationship between State secularism and freedom of conscience as this is set out in Article 1 of the Constitution (see paragraph 21 above). Under the French model, which it is not the Court ’ s role to assess as such, the State ’ s neutrality is incumbent on the employees representing it. The Court notes, however, that it is the duty of the administrative courts to verify that the authorities do not disproportionately interfere with public employees ’ freedom of conscience when State neutrality is relied upon (see paragraphs 26 and 28 above).", "69. In this context, the Court notes that the disciplinary consequences of the applicant ’ s refusal to remove her veil during her working hours were assessed by the authorities “with due regard to the nature and degree of ostentatiousness of the sign in question, and of the other circumstances” (see paragraph 26 above). In this respect, the authorities usefully pointed out that the imposed requirement of neutrality was non-negotiable in view of her contact with patients (see paragraph 13 above). Moreover, in a passage which it would have been worth expanding on, they referred to difficulties in the relevant unit (see paragraph 8 above). For their part, the courts dealing with the case accepted, in essence, the French concept of the public service and the ostentatious nature of the veil, concluding that there had not been an excessive interference with the applicant ’ s religious freedom. Thus, while the applicant ’ s wearing of a religious symbol amounted to a culpable breach of her duty of neutrality, the impact of this attire on the exercise of her duties was taken into consideration in evaluating the seriousness of that fault and in deciding not to renew her contract. The Court notes that section 29 of the Law of 13 July 1983 does not define the fault (see paragraph 41 above) and that the authorities have discretion in this area. It observes that they obtained witness statements before finding that they had sufficient information to bring disciplinary proceedings against the applicant (see paragraph 8 above). Furthermore, the Administrative Court did not criticise the sanction of non-renewal of her contract, finding that – having regard to public employees ’ duty of neutrality – it was proportionate to the fault. The Court considers that the national authorities are best placed to assess the proportionality of the sanction, which must be determined in the light of all of the circumstances in which a fault was found, in order to comply with Article 9 of the Convention.", "70. The Court notes that the applicant, whose religious beliefs meant that it was important for her to manifest her religion by visibly wearing a veil, was rendering herself liable to the serious consequence of disciplinary proceedings. However, there can be no doubt that, after the publication of the Conseil d ’ État ’ s Opinion of 3 May 2000, she was aware that she was required to comply with the obligation of neutrality in her attire while at work (see paragraphs 26 and 51 above). The authorities reminded her of this obligation and asked her to reconsider wearing her veil. It was on account of her refusal to comply with this obligation that the applicant was notified that disciplinary proceedings had been opened, notwithstanding her professional abilities. She had subsequently had access to the safeguards of the disciplinary proceedings and to the remedies available before the administrative courts. Moreover, she had chosen not to take part in the recruitment test for social workers organised by the CASH, although she had been included in the list of candidates drawn up by that establishment in full cognisance of the situation (see paragraph 10 above). In those circumstances, the Court considers that the domestic authorities did not exceed their margin of appreciation in finding that it was impossible to reconcile the applicant ’ s religious beliefs and the obligation not to manifest them, and subsequently in deciding to give priority to the requirement of State neutrality and impartiality.", "71. It appears from the report by the Secularism Observatory, in the section entitled “Overview of secularism in health establishments” (see paragraph 29 above), that disputes arising from the religious beliefs of persons working within hospital services are assessed on a case-by-case basis, and that the authorities attempt to reconcile the interests at stake in a bid to find friendly settlements. This desire for conciliation is confirmed by the small number of similar disputes brought before the courts, as indicated in the 2005 circular or recent studies on secularism (see paragraphs 26 and 30 above). Lastly, the Court observes that a hospital is a place where users, who for their part have equal freedom to express their religious beliefs, are also requested to assist in implementing the principle of secularism, by refraining from any form of proselytism and respecting the manner in which the service is organised and, in particular, the health and safety regulations (see paragraphs 23 and 29-30 above); in other words, the regulations of the respondent State place greater emphasis on the rights of others, equal treatment for patients and the proper functioning of the service than on the manifestation of religious beliefs, and the Court takes note of this.", "72. Having regard to the foregoing, the Court considers that the impugned interference can be regarded as proportionate to the aims pursued. It follows that the interference with the applicant ’ s freedom to manifest her religion was necessary in a democratic society and that there has been no violation of Article 9 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1976 and lives in Gornja Maoča.", "6. On 28 October 2011 Mr Mevlid Jašarević, a member of the local group advocating the Wahhabi/Salafi version of Islam (see, concerning this group, Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 20, 7 February 2012), attacked the United States Embassy in Sarajevo. One police officer was severely wounded in the attack. In April 2012 Mr Jašarević and two other members of the group were indicted in relation to that event. Mr Jašarević was eventually convicted of terrorism and sentenced to fifteen years’ imprisonment. The other two defendants were acquitted. The relevant part of the first-instance judgment rendered in that case, depicting the religious community to which the applicant also belonged, reads as follows:", "“In his Report/Findings and Opinion and at the main trial, the expert witness Prof. Azinović clarified the notions of ‘Wahhabism’ and ‘Salafism’ from a scientific perspective :", "‘...", "Salafi communities in Bosnia and Herzegovina, like the one in Gornja Maoča (in which the accused lived at the time of the attack), are often isolated and inaccessible. The choice of remote and isolated locations to establish settlements is often informed by the belief that true believers who live in a non-believer (or secular) country need to resort to hijrah – emigration or withdrawal from the surrounding (non-believers’) world, following the example set by the Prophet Muhammad and his followers, who moved from Mecca to Medina in 622 to establish the first Muslim community.", "Despite mutual differences, most of the Bosnian Salafi groups share some common traits that are not inherent in Islamic organisations (or religious sects) only. In practice, they confirm the tendencies of certain traditional religious communities to isolate from other believers and define their holy community through their disciplined opposition to both non-believers and half-hearted believers. This pattern is inherent in fundamentalist movements and sects within almost all religious traditions. Such movements as a rule have similar characteristics despite the differences in theological doctrines, size and social composition, the scope of their influence or their tendency towards violence. Yet these fundamentalist and puritan groups mostly do not encourage or approve violence, whether it is aimed against members of the same group or against the outer world.", "According to the available sources and their own declarations, members of the community in Gornja Maoča oppose the concept of a secular State, democracy, free elections and any laws that are not based on Sharia. The positions taken by this group are, inter alia, available at a number of web sites, including www.putvjernika.com, while part of its followers live in Serbia, Croatia, Montenegro, Slovenia, Austria, Germany, Switzerland, Australia and other countries.’", "...", "6.1.5.1 Punishment of the accused (Article 242 of the Code of Criminal Procedure)", "Having been called by the court officer to stand up when the Trial Chamber entered the courtroom at the first hearing, the accused refused to do so. Also, the accused Jašarević and Fojnica were wearing skullcaps, which the Court could correlate with clothing details indicating their religious affiliation. Pursuant to Article 256 of the Code of Criminal Procedure, all those present in the courtroom must stand up upon the call from a court officer. The President of the Trial Chamber asked the accused to explain both their refusal to stand up and the reasons why they had entered the courtroom wearing skullcaps. The accused stated that they only respected Allah’s judgment and that they did not want to take part in rituals acknowledging man-made judgment. The Court thereupon warned the accused that standing up was a statutory obligation of the accused and that under Article 242 § 2 of the Code of Criminal Procedure, disruptive conduct constituted contempt of court, which the Court would punish by removing them from the courtroom.", "After the warning, the President adjourned the hearing and provided the accused with a reasonable period of time to consult their attorneys in order to change their minds.", "When the Trial Chamber returned to the courtroom, the accused did not stand up, and therefore the President removed them from the courtroom. The transcript from the hearing was subsequently delivered to the accused.", "At a new hearing, the accused Fojnica and Ahmetspahić again did not want to stand up on being called by the court officer, while the accused Jašarević refused to enter the courtroom. The President therefore asked the accused to respond whether it was their definite decision to act in the same way until the completion of the trial. The accused confirmed that, until the completion of the trial, they had no intention of showing any respect, by standing up, for the Court, which they did not recognise. The Court found that to continue to bring the accused to scheduled hearings would unnecessarily expose the Court to significant expense. Therefore, the Court decided to remove the accused from the trial until its completion, with a warning that they would be notified of any scheduled hearing, and that, prior to it, they could notify the Court if they changed their mind, in which case the Court would allow them to come to the hearing. The accused Fojnica and Ahmetspahić then changed their mind and regularly appeared before the Court, while the accused Jašarević did so only at the following hearing. The Court delivered to the accused the audio-recordings and the transcripts from the hearings they had not attended in order to allow them to agree with their defence attorneys on their defence strategy .”", "7. In the context of that trial, the Court of Bosnia and Herzegovina (“the State Court”) summoned the applicant, who belonged to the same religious community, to appear as a witness on 10 September 2012. He appeared, as summoned, but refused to remove his skullcap, notwithstanding an order from the president of the trial chamber to do so. He was then expelled from the courtroom, convicted of contempt of court and sentenced to a fine of 10,000 convertible marks (BAM) [1] under Article 242 § 3 of the Code of Criminal Procedure. The relevant part of that decision reads as follows:", "“The Court has examined the situation encountered in the courtroom with the utmost care. The Court is aware that the witness belongs to a religious community, organised under special rules in the village of Maoča, of which the accused are also members. In view of that, the Court has acquainted the witness with the provisions of Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina and the obligations of the parties in the judicial institutions, which ban visitors from entering these buildings in clothing that is not in accordance with the generally accepted dress codes within the professional environment of the judicial institutions. In addition, the Court has pointed out to the witness that, in public institutions, it is not acceptable to display religious affiliation through clothing or religious symbols, and that the Court is obliged to support and promote values that bring people closer, not those that separate them. The Court has particularly emphasised that the rights of the individual are not absolute and must not jeopardise common values.", "The witness’s attention has especially been drawn to the fact that people of various religious beliefs, belonging to different religious groups, appear before the court and that it is necessary to have confidence in the court. Thus, the court is not a place where religious beliefs can be expressed in a way that discredits certain common rules and principles in a multicultural society. That is why the law obliges everyone who appears before the Court to respect the Court and its rules.", "The Court finds the witness’s refusal to accept the rules of court and to show respect to the Court by accepting its warnings, to be a flagrant breach of order in the courtroom. The Court has found that this behaviour is connected to a number of other identical cases before it, in which the members of the same religious group behaved in the same manner, publicly indicating that they did not recognise this Court. The frequency of such disrespectful behaviour and contempt of court is producing dangerous criminogenic effects and undoubtedly presents a specific threat to society. It is not necessary to particularly substantiate how this behaviour impairs the Court’s reputation and confidence in the Court. A legitimate conclusion may be that it is essentially directed against the State and basic social values. Therefore, a severe and uncompromising reaction on the part of the State, taking all existing repressive measures, is crucial for dealing with such behaviour. Restraint on the part of the State in cases of this or other types of extremism can have serious consequences for the reputation of the judiciary and the stability of society in Bosnia and Herzegovina.", "Bearing in mind the frequency, seriousness and gravity of this type of breach of order in the courtroom and its damaging consequences, the Court has decided to punish the witness by imposing the maximum fine of BAM 10,000. Such a severe penalty should be a message to all the parties in the courtroom that contempt of court is unacceptable. The Court must be respected and the level of respect for the Court is the same as for the State of Bosnia and Herzegovina.”", "8. On 11 October 2012 an appeals chamber of the same court reduced the fine to BAM 3,000 and upheld the rest of the first-instance decision. It held that the requirement to remove any and all headgear on the premises of public institutions was one of the basic requirements of life in society. It further held that in a secular State such as Bosnia and Herzegovina, any manifestation of religion in a courtroom was forbidden. The relevant part of that decision reads:", "“The Chamber observes that it is obvious and well known that skullcaps, hats and other headgear should be removed when entering any premises, and notably the premises of State and other public institutions, as there is no longer a need to wear them and removing a skullcap or a hat is an expression of respect for this institution and its function. The duty to remove headgear exists not only in this court but also in other courts and institutions in Bosnia and Herzegovina as well as in other States. Such rules and duties apply to all persons without exception, regardless of religious, sexual, national or other affiliation.", "Indeed, this is a duty of all those who visit the State Court in whatever capacity, as explained in more detail in Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina: ‘Visitors must respect the dress code applicable to judicial institutions. Visitors shall not wear miniskirts, shorts, t-shirts with thin straps, open heel shoes and other garments that do not correspond to the dress code applicable to judicial institutions’.", "It would appear from the case file that the judge in charge of this specific case first directed the witness to remove his skullcap in the courtroom, and then gave him an additional ten minutes to think about it as well as about the consequences of rejecting that order. As the witness had nevertheless failed to remove his skullcap, showing thereby wilful disrespect for the authority of the court, the President of the Trial Chamber fined him in accordance with Article 242 § 3 of the Code of Criminal Procedure.", "It follows from the aforementioned that the judge in charge did not invent the duty of removing the skullcap when addressing the court, as claimed in the appeal. This is indeed a matter of a generally accepted standard of behaviour in the courtroom which applies not only to this Court but also to other courts; furthermore, it has always been applied. This duty stems from Rule 20 of the House Rules of the Judicial Institutions cited above. Therefore, the allegations made by the lawyer Mulahalilović in the appeal are not only unjustified but totally inappropriate.", "The allegation in the appeal that the witness was punished simply because he was a believer who was practising his religion, and that he had thereby been discriminated against, is also unsubstantiated. The duty of removing headgear and behaving decently applies without exception to anyone visiting the court premises. All persons visiting the Court, regardless of their religion, nationality, sex or other status, have the same rights and obligations and are obliged, among other things, to remove their skullcaps, hats and other headgear. This was explained to the witness. Any behaviour to the contrary has always been interpreted and is still interpreted as disrespectful towards the court, and the appellant is aware of that. Bosnia and Herzegovina, as mentioned in the impugned decision, is a secular State in which religion is separate from public life. The Chamber therefore holds that the premises of the Court cannot be a place for the manifestation of any religion.", "It clearly follows from the aforementioned that the witness Husmet Hamidović was not deprived of his right to freedom of religion and freedom to manifest religion at his home or any other place dedicated for that purpose, but not in the courtroom. Therefore, the allegations by the lawyer Mulahalilović of a violation of the rights guaranteed by the Constitution and the European Convention on Human Rights, and of discrimination on religious grounds, are unsubstantiated.", "Having found that the witness’s punishment was justified and that his appeal was ill-founded in that part, the Appeals Chamber then examined the amount of the fine and decided that it was excessive.", "As noted in the appeal, BAM 10,000 is the maximum fine for contempt of court. The maximum fine should be imposed in the most serious cases.", "Turning to the relevant criteria, the nature and the seriousness of the conduct must certainly be taken into consideration. However, the appellant is wrong in claiming that his means should have also been taken into account, as the fine for contempt of court is not a criminal sanction, but is of a disciplinary nature.", "While the witness showed a high level of determination in disrespecting the court (he again failed to remove his skullcap after a pause of ten minutes given to him to reflect) and this fact definitely affected the amount of the fine, the act itself (failure to remove headgear) is not the most serious case of contempt of court which would justify the maximum fine. Since the witness did not use offensive language, there was no need to impose the maximum fine. This is notwithstanding the fact that members of the same religious group have lately shown a pattern of disrespectful behaviour. While it is true that the general prevention is one of the aims of sanctions, including disciplinary ones, disciplinary sanctions are primarily directed at individuals. Everyone should therefore be held responsible and adequately punished for his/her conduct only, and not for that of other members of any group. This follows from Article 242 § 3 of the Code of Criminal Procedure.", "In the circumstances of this case, and having regard to the nature and the intensity of contempt of court committed by this witness, the appeals chamber finds that a fine in the amount of BAM 3,000 is appropriate. The appeal by the lawyer Mulahalilović is therefore partially accepted and the impugned decision amended.”", "9. As the applicant had failed to pay the fine, on 27 November 2012 the fine was converted into thirty days ’ imprisonment pursuant to Article 47 of the Criminal Code. That decision was upheld on 13 December 2012 and the applicant served his prison sentence immediately.", "10. On 9 July 2015 the Constitutional Court of Bosnia and Herzegovina found no breach of Articles 9 and 14 of the Convention, fully accepting the reasoning of the State Court. At the same time, it found a breach of Article 6 of the Convention because of the automatic way in which fines were converted into imprisonment and ordered that Article 47 of the Criminal Code of Bosnia and Herzegovina be amended. However, it decided not to quash the decision converting the fine into imprisonment in this case, relying on the principle of legal certainty.", "The relevant part of the majority decision reads as follows:", "“40. The Constitutional Court notes that the present case concerns a specific situation where the universally accepted standard of conduct in a judicial institution intertwines with the right of the appellant to manifest in a courtroom, contrary to that standard, affiliation with his religious community. The appellant claims that the State Court did not have a basis in law for imposing a fine for his failure to comply with a court order, as the Code of Criminal Procedure does not contain a provision prescribing any such measure, for which reason his right to freedom of thought, conscience and religion was violated.", "41. Starting from the main objection raised by the appellant, that the limitation in the case at hand was not prescribed by law, the Constitutional Court notes that the European Court ( The Sunday Times v. the United Kingdom ( no. 1), 26 April 1979, § 49, Series A no. 30) has held that two requirements flow from the expression ‘prescribed by law’ in Article 9 of the European Convention. ‘Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’ In addition, the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Kokkinakis, cited above).", "42. Accordingly, as concerns the issue of whether the State Court, in adopting the challenged ruling, acted in accordance with the law, the Constitutional Court observes that the provision of Article 242 § 3 of the Code of Criminal Procedure provides that the judge or the presiding judge may order that a party to the proceedings who disrupts order in a courtroom or disobeys court orders be removed from the courtroom and be fined in an amount of up to BAM 10,000. The Constitutional Court also observes that the cited provision, on which the State Court relied, does not prescribe a list of all types of conduct which may be regarded as disruption of order in a courtroom, but rather each court, in the circumstances of a given case, decides whether some type of conduct may be considered disruptive or not, which falls within the scope of that court’s margin of discretion (see the Constitutional Court decision no. AP 2486/11 of 17 July 2014, § 33). This is a universally accepted standard of conduct of the courts in Bosnia and Herzegovina, which is in accordance with the position of the European Court, referred to in the Kokkinakis judgment, that the interpretation and application of such enactments that are couched in vague terms depend on practice.", "43. The Constitutional Court notes that the State Court relied also on Rule 20 of the House Rules, providing that ‘visitors must respect the dress code applicable to judicial institutions’, as an internal act of the State Court and other judicial institutions. The Constitutional Court observes likewise that the mentioned provision does not specify what that dress code is. However, the State Court in the case at hand kept in mind that the universally accepted standard of conduct in a civilised society required that upon entering the premises of a public institution one should remove one’s headgear out of respect for that institution and its function. Likewise, the Constitutional Court is aware that the said House Rules were not published, but that is not a problem since the present case concerns a universally accepted and usual standard of conduct in a judicial institution in a civilised and democratic society that Bosnia and Herzegovina aspires to become. The Constitutional Court also holds that the standard in issue could and should have been known to the appellant. In addition, the Constitutional Court observes that the State Court clearly and unequivocally warned the appellant of that universally accepted standard of conduct, which is indeed mandatory for all visitors of judicial institutions, irrespective of their religion, sex, national origin or other status.", "44. Moreover, the State Court clearly warned the appellant of the consequences of such conduct and, although it was not required to do so, accorded him an additional time to reconsider his position. This is clearly in accordance with the stance taken by the European Court in relation to the notion ‘prescribed by law’ ( The Sunday Times, cited above). Indeed, the State Court clearly and unequivocally informed the appellant of the applicable rules in the judicial institutions and of the consequences of disobeying the rules. Moreover, at his own request, the appellant was granted additional time to think about all this. The Constitutional Court especially emphasises the fact that the limitation in question applied only while the appellant was in the courtroom, that is, during his testimony before the State Court. The Constitutional Court holds that the State Court did not thereby place an excessive burden on the appellant, given that it simply requested that the appellant adjust his conduct to the House Rules, which applied to all visitors, and only in the courtroom. Bearing in mind all the aforementioned, the Constitutional Court holds, in the circumstances of this particular case, that the State Court, using the margin of discretion referred to in Article 242 § 3 of the Code of Criminal Procedure, acted in accordance with the law, and that, contrary to the appellant’s opinion, the interference, which was of a limited nature, was lawful.", "45. As to the question whether the interference in the present case had a legitimate aim, the Constitutional Court notes that the State Court simply relied on a universally accepted standard of conduct in a judicial institution, which requires all the visitors of judicial institutions to respect ‘the dress code applicable to judicial institutions’. That court further relied on the inadmissibility of the manifestation in public institutions of religious affiliation and religious symbols which were contrary to the usual standards of conduct, and in so doing it took into account its obligation to support the values that bring people closer and not those that separate them. The Constitutional Court notes that the State Court underlined in that regard that Bosnia and Herzegovina was a secular State where religion was separated from public life and that therefore no one could manifest his/her religion or religious affiliation in a courtroom. Considering the position of the European Court that in democratic societies in which several religions coexist (as is the case of Bosnia and Herzegovina) it may be necessary to place restrictions on the freedom of religion ( Kokkinakis, cited above), in the context of the obligation of an independent judicial institution to support the values that bring people closer, and not those that separate them, the Constitutional Court holds that the restriction in the present case, which was of a temporary nature, aspired to achieve legitimate aims. Finally, the Constitutional Court reiterates that Article 242 § 3 of the Code of Criminal Procedure is primarily designed to allow the State Court unhindered and effective conduct of proceedings. A judge or the president of a chamber is thereby given the possibility of imposing a fine for any inappropriate behaviour which is directed at disrupting order in a courtroom or at damaging the reputation of the State Court. In the present case, the State Court considered the repeated refusal of the appellant to comply with an order of the court to be damaging to the reputation and the dignity of a judicial institution. Therefore, the Constitutional Court finds that the restriction in issue, which was of a limited nature, was in accordance with the legitimate aim of maintaining the dignity of a judicial institution for the purposes of Article 9 of the European Convention.", "46. Finally, as to the question whether the decision was necessary in a democratic society in order to achieve one of the legitimate aims under Article 9 of the European Convention, the Constitutional Court reiterates that, according to the settled case-law of the European Court, the Contracting States have a certain margin of appreciation in assessing the existence and extent of the need for interference, but this margin is subject to European supervision, embracing both the law and the decisions applying it, even those given by independent courts ( Dahlab, cited above). Furthermore, under the well-established case-law of the European Court, the Court is called upon to establish whether the measures undertaken at the national level were justified in principle – that is, whether the reasons given by the national authorities to justify them were ‘relevant and sufficient’ and whether the measures were proportionate to the legitimate aim pursued ( The Sunday Times, cited above, § 50 [2] ).", "47. The Constitutional Court notes that the appellant was fined for contempt of court; that is, for his failure to respect an order of the State Court to remove his skullcap in the courtroom. The Constitutional Court further notes that the first-instance decision imposed a fine in the amount of BAM 10,000, but that the second-instance decision reduced the fine to BAM 3,000. The Appeals Chamber held that the fine set in the first-instance decision was excessive, and taking into consideration all the circumstances of the case, it concluded that a fine in the amount of BAM 3,000 was appropriate. The Constitutional Court observes that the State Court acted in this case in accordance with its margin of discretion, accorded by Article 242 of the Code of Criminal Procedure enabling the courts to fine participants in proceedings who refuse to obey court orders, with a view to conducting proceedings efficiently and maintaining the authority and dignity of courts. The Constitutional Court took into account the fact that owing to his failure to pay the fine, the appellant’s fine was converted to a prison sentence pursuant to Article 47 of the Criminal Code. However, the Constitutional Court will examine that factor in the following paragraphs of this decision concerning the right to a fair trial. Therefore, in view of the above and the circumstances of this particular case, the Constitutional Court holds that the impugned restriction did not constitute an excessive burden for the appellant, that the measure undertaken by the State Court pursued legitimate aims within the meaning of Article 9 of the European Convention, and that there was a reasonable relationship of proportionality between the restriction and the legitimate aim pursued.", "48. Accordingly, the Constitutional Court concludes that the impugned decision did not breach the appellant’s right to manifest his religion under Article II § 3 (g) of the Constitution of Bosnia and Herzegovina and Article 9 of the European Convention.”", "11. Two out of the eight judges of the Constitutional Court appended dissenting opinions. They disagreed with the majority as concerns Articles 9 and 14 of the Convention. In particular, given that the applicant had appeared as summoned and had stood up while addressing the court, they considered that his conduct had not been disrespectful. They further maintained that, unlike public officials, private citizens, such as the applicant, did not owe a duty of neutrality. Therefore, the applicant’s punishment for refusing to remove a religious symbol in a courtroom constituted, in their opinion, disproportionate interference with his right to freedom of religion." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. As concerns the wearing of religious symbols", "12. According to the most recent census, taken in 2013, Muslims make up almost 51% of the population of Bosnia and Herzegovina and Christians almost 46% (approximately two thirds of Christians are Orthodox and one third is Catholic).", "13. The Constitution of Bosnia and Herzegovina guarantees “the highest level of internationally recognised human rights and fundamental freedoms”, including the freedom of religion (see Article II of the Constitution). Whilst the principle of secularism is not expressly stated in the Constitution, it transpires from the 2004 Freedom of Religion Act [3] and from the case-law of the Constitutional Court of Bosnia and Herzegovina (see, in particular, decisions nos. AP 286/06, 29 September 2007, § 28, and AP 377/16, 20 April 2016, § 35) that Bosnia and Herzegovina is a secular State.", "The relevant provisions of the 2004 Freedom of Religion Act read as follows:", "Section 1(1)", "“In accordance with the heritage and traditional values of tolerance and coexistence of multi-confessional Bosnia and Herzegovina, and with the aim of promoting mutual understanding and respect for the right to freedom of conscience and religion, this Act establishes a legal framework within which all churches and religious communities in Bosnia and Herzegovina shall act and be equal in rights and obligations, without any discrimination.”", "Section 11(1)", "“Churches and religious communities shall be self-administering in accordance with their own laws and doctrines. This shall have no civil-law effect, shall not be enforced by the public authorities and shall not be applicable to non-members.”", "Section 14", "“Churches and religious communities are separate from the State, which means that:", "(1) The State may not accord the status of State religion or State church or religious community to any church or religious community;", "(2) The State shall not have the right to interfere in the internal organisation and the affairs of churches and religious communities;", "(3) Subject to subsection (4) below, no church, religious community or religious official may obtain any special privileges from the State; churches and religious communities may not participate formally in any political institutions;", "(4) The State may confer, on an equal basis, material support to churches and religious communities for heritage conservation as well as health-care, educational, charitable and social services provided by churches and religious communities, on condition that those services be provided without discrimination on any grounds, and notably on the grounds of religion or belief;", "(5) Churches and religious communities may take part in upbringing, education and humanitarian, social and health-care assistance, in accordance with family law;", "(6) The public authorities shall not interfere in the election, appointment or removal of religious officials and the internal structure of churches and religious communities;", "(7) Freedom to manifest religion or belief may be subject only to such limitations as are prescribed by law and necessary in the interests of public safety, for the protection of health or morals, or for the protection of the rights and freedoms of others in accordance with international standards. Churches and religious communities shall have the right to appeal against any such decision. The appellate body shall seek an opinion of the Ministry of Human Rights and Refugees of BiH in this connection.”", "14. In 2015 the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (“the HJPC”) made an analysis of the legal framework relating to the wearing of religious symbols in judicial institutions [4]. As stated in that analysis, judges, prosecutors and court officers in Bosnia and Herzegovina are forbidden to wear such symbols in the course of their duties. The HJPC relied on a number of domestic provisions, notably section 13 of the Courts Act 2005 of the Federation of Bosnia and Herzegovina [5] and section 14 of the Courts Act 2012 of the Republika Srpska [6]. While that prohibition does not apply to other persons, such as parties and witnesses, they may be ordered to remove a religious symbol in a courtroom if this is considered justified by the judge in a given case, taking into consideration the right to freedom of religion and equal access to justice, the organisation of the proceedings and the need to maintain the authority of the judiciary. On 21 October 2015 the HJPC sent a circular to all courts and prosecutors in the country reminding them of those rules. The circular, notably as regards the wearing of religious symbols by judicial officials, was condemned by the Islamic Community of Bosnia and Herzegovina, the House of Representatives of the Federation of Bosnia and Herzegovina, two cantonal assemblies, the Agency for Gender Equality, the Women’s Network (an informal group working on women’s rights) and others. The HJPC at that point requested all courts and prosecutors in the country to inform it whether they had come across any cases of judges, prosecutors or court officers wearing religious symbols in the course of their duties. It would appear from the replies that one judge and approximately ten court officers wore headscarves. On 10 February 2016 the HJPC reasserted its position that judges, prosecutors and court officers were forbidden to wear religious symbols at work. It reminded all court presidents and chief prosecutors of their duty to enforce that rule.", "B. As concerns the examination of witnesses and contempt of court", "15. The relevant part of Article 81 of the Code of Criminal Procedure of Bosnia and Herzegovina [7] reads:", "“(4) Witnesses shall be notified in the summons ... of the consequences of failing to appear.", "(5) Should a witness fail to appear and to justify his or her absence, the court may impose upon him or her a fine of up to BAM 5,000 or issue a warrant to arrest the witness and bring him or her before the court.”", "16. The relevant part of Article 86 § 6 of the Code reads:", "“Given the age and the physical and mental condition of a witness, or for other justified reasons, he or she may be examined using technical means for transferring image and sound in such a manner as to permit the parties and the defence attorney to ask questions although not in the same room as the witness. ...”", "17. The relevant part of Article 242 § 3 of the Code provides :", "“Should ... a witness ... cause a disturbance in the courtroom or fail to comply with an order of ... the presiding judge, ... the presiding judge shall warn him or her. If the warning is unsuccessful ... the presiding judge may order that the person be expelled from the courtroom and be fined in an amount of up to BAM 10,000 ...”", "18. Article 256 of the Code provides:", "“(1) When the judges enter or exit the courtroom, all those present shall stand up upon being called to do so by the court officer.", "(2) The parties and other participants in the proceedings shall stand up when addressing the court unless there are justified reasons for not doing so.”", "19. Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina [8] provides that on the premises of judicial institutions at State level, including the State Court, everyone must respect the “dress code applicable to judicial institutions”. The Rules were issued by the President of the State Court, the Chief Prosecutor and the President of the HJPC in June 2009. They were not published in the Official Gazette, but they are displayed in the building of the State Court, where they are easily visible to all visitors.", "C. As concerns the conversion of fines into imprisonment", "20. Article 47 of the Criminal Code of Bosnia and Herzegovina [9] reads as follows:", "“(1) Fines shall not be collected by force.", "(2) If a fine is not paid within the period determined in the judgment, the court shall, without delay, convert the fine into imprisonment.", "(3) The fine shall be converted into imprisonment in such a way that ... each BAM 100 is converted into one day of imprisonment, provided that the term of imprisonment does not exceed the punishment prescribed for that particular offence.", "(4) If the convicted person has only paid a portion of the fine, the remaining amount shall be proportionally converted into imprisonment and if he or she then pays the remaining amount, the execution of the prison sentence shall cease.”", "III. COMPARATIVE LAW", "21. The Court conducted a comparative study of the legislation of thirty-eight Contracting States (Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Liechtenstein, Lithuania, Republic of Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom). The wearing of religious symbols by private citizens in courtrooms is not regulated, as such, by the laws of any of the States covered. Consequently, none of them prohibits wearing such symbols on the sole ground that they are religious. Nevertheless, it should be noted that a minority of Contracting States apply a more or less loosely defined dress code to private citizens on court premises, and in four States this means keeping one’s head uncovered while in the courtroom (Belgium, Italy, Portugal and Slovakia). It would appear that this rule has never been applied to religious symbols in Italy, Portugal and Slovakia. As concerns Belgium, a recent study by the Human Rights Centre of Ghent University shows that only around 30% of Belgian judges have ever made use of this provision. Of this minority of judges, around 80% explained that they had only used this provision with regard to non-religious headgear, such as baseball caps [10].", "22. Special rules may apply to face-covering clothing (such as the burqa and niqab). For example, in the case of R v. D (R) ([2013] Eq LR 1034), a British judge ruled as follows:", "“(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings.", "(2) The defendant is free to wear the niqab during trial, except while giving evidence.", "(3) The defendant may not give evidence wearing the niqab.", "(4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean [ s] of a live TV link.", "(5) Photographs and filming are never permitted in court. But in this case, I also order that no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court.”", "IV. OTHER RELEVANT MATERIALS", "23. The Islamic Community in Bosnia and Herzegovina was established in 1882 during the Austrian-Hungarian rule over Bosnia and Herzegovina. After the creation of the Kingdom of Serbs, Croats and Slovenes, the seat of the Islamic Community was moved from Sarajevo to Belgrade. The Islamic Community in Bosnia and Herzegovina broke away from Belgrade in 1993, shortly after Bosnia and Herzegovina had become independent. The Islamic Community in Bosnia and Herzegovina and its head, the Grand Mufti of Bosnia and Herzegovina, are the highest religious authorities for about four million Muslims in the world. The Islamic Community in Bosnia and Herzegovina has jurisdiction throughout Bosnia and Herzegovina, as well as in Croatia, Slovenia and Bosniac religious communities and mosques around the world. The Islamic Community in Montenegro is not formally under the jurisdiction of the Islamic Community in Bosnia and Herzegovina, but it recognises the Grand Mufti of Bosnia and Herzegovina as the highest moral authority of Muslims in the region. In Serbia, however, there is a dispute as to whether the Islamic Community in Bosnia and Herzegovina or the Islamic Community in Serbia has jurisdiction over the country.", "24. The position of the Islamic Community in Bosnia and Herzegovina on wearing the hijab/headscarf and the skullcap is outlined in a letter sent to Mr Osman Mulahalilović, the applicant’s lawyer, on 19 September 2016 [11] :", "“The Islamic Community, through its highest representative and legislative body, the Mufti Council, took an official position regarding the wearing of a hijab (headscarf) in Islamic teaching. The position was expressed in the fatwa that established the following:", "‘The hijab, the headscarf worn by Muslim women, is a religious duty and clothing practice of Muslim women stipulated by the basic sources of Islam, the Koran and Sunnah as well as the consensus of all Muslims. ...’", "As concerns the wearing of the skullcap, this represents a centuries-old tradition of Muslims in Bosnia and Herzegovina and elsewhere. The wearing of the skullcap does not represent a strong religious duty, but it has such strong traditional roots that it is considered as a religious duty by many. Until recent discussions about the wearing of the skullcap caused by decisions of judicial institutions in Bosnia and Herzegovina, we were not aware that the wearing of the skullcap had been prohibited in earlier regimes. It has always been respected as part of the traditional identity of each person since wearing the skullcap in public was a sign of civility.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "25. The applicant complained that his punishment for wearing a skullcap in a courtroom was contrary to Article 9, which reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Preliminary remark", "26. It should be noted at the outset that the present case is not about the wearing of religious symbols and clothing at the workplace (in this regard, see Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V; Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006 ‑ II; Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, ECHR 2013; and Ebrahimian v. France, no. 64846/11, ECHR 2015). Indeed, it concerns a witness in a criminal trial, which is a completely different issue. The public debate now taking place in Bosnia and Herzegovina about the wearing of religious symbols and clothing by judicial officials (see paragraph 14 above), as well as the applicant’s submissions in that regard, are therefore irrelevant to the present case.", "B. Admissibility", "27. The Government did not raise any admissibility objections. As this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible.", "C. Merits", "1. The parties’ submissions", "28. The applicant argued that it was his religious duty to wear a skullcap, since the Prophet Muhammad had also worn one. In his case, the ban on wearing the skullcap had therefore amounted to a “limitation” on the manifestation of his religion. In his view, that limitation had not been lawful, as no statutory provision expressly prohibited the wearing of the skullcap in the courtroom. The House Rules on which the domestic decisions had relied (see paragraph 19 above) could not introduce into the legal system bans that had not been prescribed in statute. Moreover, the sanction imposed on him was disproportionate. According to the applicant, the State Court wished to send a message to religious people that they were not welcome at that court and that they would be imprisoned if and when they entered its premises.", "29. The Government were in agreement with the applicant that the ban on wearing the skullcap in the courtroom had amounted to a “limitation” on the manifestation of his religion. They relied in this connection on the case-law of the Constitutional Court of Bosnia and Herzegovina and General Comment No. 22 on the right to freedom of thought, conscience and religion adopted by the United Nations Human Rights Committee on 27 September 1993, according to which “The observance and practice of religion or belief may include ... the wearing of distinctive clothing or headcoverings” (document no. CCPR/C/21/Rev.1/Add.4, § 4). That said, the Government argued that the limitation was lawful. The House Rules on which the domestic decisions had relied should be read in conjunction with Article 242 § 3 of the Code of Criminal Procedure, affording trial judges wide discretion with regard to questions of court decorum (see paragraph 17 above). As regards the aim of the limitation, the Government maintained that the trial judge had simply enforced a generally accepted rule of civility and decent behaviour that skullcaps were not permitted in the courtroom in Bosnia and Herzegovina. Moreover, the trial judge had acted to protect the principle of secularism, which was of vital importance in multicultural societies, such as that of Bosnia and Herzegovina. Considering also that the impugned measure had been taken in the context of a sensitive and complex case regarding a terrorist attack against the Embassy of the United States, the Government argued that the limitation in question had been proportionate.", "2. The Court’s assessment", "(a) Whether there has been a “limitation” within the meaning of Article 9 § 2", "30. The parties agreed that the punishment imposed on the applicant for wearing a skullcap in a courtroom constituted a limitation on the manifestation of his religion. This is in line with the official position of the Islamic Community in Bosnia and Herzegovina, according to which the wearing of the skullcap does not represent a strong religious duty, but it has such strong traditional roots that it is considered by many people to constitute a religious duty (see the last paragraph of the letter of 19 September 2016 cited in paragraph 24 above). This is also in line with the ruling of the Constitutional Court (see paragraph 10 above).", "31. Such a limitation will not be compatible with Article 9 § 2 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in that paragraph and is “necessary in a democratic society” to achieve the aim or aims concerned.", "(b) Whether the measure was “prescribed by law”", "32. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 9 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 99, ECHR 2016).", "33. In the present case, the parties’ opinions differed as to whether the impugned measure was “prescribed by law”. As pointed out by the applicant, no statutory provision expressly prohibited the wearing of the skullcap in the courtroom (see also the position of the HJPC in this regard in paragraph 14 above). However, the applicant was not punished pursuant to any such general ban, but on the basis of an inherent power of the trial judge to regulate the conduct of proceedings in the State Court so as to ensure that no abuse of the court occurred and that the proceedings were fair to all parties, a provision that is inevitably couched in terms which are vague (see Article 242 § 3 of the Code of Criminal Procedure in paragraph 17 above). The Constitutional Court examined this issue in depth and concluded that the interference was lawful, taking into consideration especially the fact that the president of the trial chamber had informed the applicant of the applicable rule and of the consequences of disobeying it (see paragraph 10 above). The Court has no strong reasons to depart from the finding of the Constitutional Court. It therefore considers that there was a basis in law for restricting the wearing of the skullcap in the courtroom.", "(c) Whether there was a legitimate aim", "34. The Court has already held that the enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs, as listed in Article 9 § 2, is exhaustive and that their definition is restrictive (see S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014, and the authorities cited therein). For it to be compatible with the Convention, a limitation on this freedom must therefore pursue an aim that can be linked to one of those listed in this provision.", "35. The applicant took the view that the interference with the exercise of his freedom to manifest his religion did not correspond to any of the aims listed in Article 9 § 2. The Government maintained, for their part, that the impugned measure pursued two legitimate aims: to protect the rights and freedoms of others; and to maintain the authority and impartiality of the judiciary. The Court notes that the second paragraph of Article 9 does not refer expressly to the second of those aims. As regards the first of the aims invoked – to ensure the protection of the rights and freedoms of others – the Government referred to the principle of secularism and the need to promote tolerance in a post-conflict society. The Court has already held that secularism is a belief protected by Article 9 of the Convention (see Lautsi and Others v. Italy [GC], no. 30814/06, § 58, ECHR 2011) and that an aim to uphold secular and democratic values can be linked to the legitimate aim of the “protection of the rights and freedoms of others” within the meaning of Article 9 § 2 (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 99, ECHR 2005 ‑ XI, and Ahmet Arslan and Others v. Turkey, no. 41135/98, § 43, 23 February 2010). There is no reason to decide otherwise in the present case.", "(d) Whether the measure was “necessary in a democratic society”", "(i) General principles", "36. The general principles concerning Article 9 were recently restated in S.A.S. v. France ( cited above, §§ 124-31 ) :", "“124. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Leyla Şahin, cited above, § 104).", "125. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists the various forms which the manifestation of one’s religion or beliefs may take, namely worship, teaching, practice and observance (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000-VII, and Leyla Şahin, cited above, § 105).", "Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (see, for example, Arrowsmith v. the United Kingdom, no. 7050/75, Commission’s report of 12 October 1978, DR 19, p. 5; Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997 ‑ IV; and Leyla Şahin, cited above, §§ 105 and 121).", "126. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). This follows both from paragraph 2 of Article 9 and from the State’s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (see Leyla Şahin, cited above, § 106).", "127. The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. As indicated previously, it also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports 1996-IV; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 ‑ XI; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 91, ECHR 2003 ‑ II), and that this duty requires the State to ensure mutual tolerance between opposing groups (see, among other authorities, Leyla Şahin, cited above, § 107). Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999 ‑ IX; see also Leyla Şahin, cited above, § 107).", "128. Pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III). Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society (see, mutatis mutandis, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 45, Reports 1998-I, and Refah Partisi (the Welfare Party) and Others, cited above, § 99). Where these ‘rights and freedoms of others’ are themselves among those guaranteed by the Convention or the Protocols thereto, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a ‘democratic society’ (see Chassagnou and Others, cited above, § 113; see also Leyla Şahin, cited above, § 108).", "129. It is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see, for example, Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005 ‑ IX). This is the case, in particular, where questions concerning the relationship between State and religions are at stake (see, mutatis mutandis, Cha’are Shalom Ve Tsedek, cited above, § 84, and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; see also Leyla Şahin, cited above, § 109). As regards Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is ‘necessary’. That being said, in delimiting the extent of the margin of appreciation in a given case, the Court must also have regard to what is at stake therein (see, among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110). It may also, if appropriate, have regard to any consensus and common values emerging from the practices of the States Parties to the Convention (see, for example, Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011).", "130. In the judgment in Leyla Şahin (cited above), the Court pointed out that this would notably be the case when it came to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. Referring to the judgment in Otto-Preminger-Institut v. Austria (20 September 1994, § 50, Series A no. 295-A) and the decision in Dahlab v. Switzerland ((dec.), no. 42393/98, ECHR 2001-V), it added that it was thus not possible to discern throughout Europe a uniform conception of the significance of religion in society and that the meaning or impact of the public expression of a religious belief would differ according to time and context. It observed that the rules in this sphere would consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. It concluded from this that the choice of the extent and form of such rules must inevitably be left up to a point to the State concerned, as it would depend on the specific domestic context (see Leyla Şahin, cited above, § 109).", "131. This margin of appreciation, however, goes hand in hand with a European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110).”", "(ii) Application of those principles to the present case", "37. The Court notes that in the present case the applicant had no choice but to appear before the domestic court: in accordance with the Code of Criminal Procedure of Bosnia and Herzegovina, a witness who fails to appear risks being fined or arrested (see paragraph 15 above). It further observes that the applicant stood up when addressing the court, as required under domestic law (see paragraph 18 above). The presiding judge informed the applicant that he was also required to remove his skullcap, pursuant to the House Rules (see paragraph 19 above). He explained that the wearing of the skullcap was contrary to the dress code applicable to judicial institutions and that no religious symbols or clothing were permitted in court. The applicant was then accorded some additional time for reflection, but he eventually refused to remove his skullcap, claiming that it was his religious duty to wear a skullcap at all times. The presiding judge fined him for contempt of court. The applicant failed to pay, so the fine was converted into thirty days of imprisonment (see paragraph 9 above).", "38. It is important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight. This is the case, in particular, where questions concerning the relationship between State and religions are at stake, as rules in this sphere vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. As regards Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”. This margin of appreciation, however, goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate. In this respect, the Court may, if appropriate, have regard to any consensus and common values emerging from the practices of the States Parties to the Convention (see, among other authorities, S.A.S. v. France, cited above, § § 129-31).", "39. The Court is aware that the presiding judge had a difficult task of maintaining order and ensuring the integrity of the trial in a case in which a number of participants belonged to a religious group opposing the concept of a secular State and recognising only God’s law and court (see paragraph 6 above). The Court has also taken note of the overall context at the time of the trial. Nonetheless, the Court considers that the measure taken at national level was not justified, for the following reasons.", "40. As mentioned above (see paragraph 26 above), the present case must be distinguished from cases concerning the wearing of religious symbols and clothing in the workplace, notably by public officials who may be under a duty of discretion, neutrality and impartiality, including a duty not to wear such symbols and clothing while exercising official authority (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001, concerning the dismissal of a judge because she had, among other things, proselytised and prayed during court hearings; Dahlab, cited above, concerning the prohibition on a primary-school teacher wearing a headscarf while teaching; Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006 ‑ II, concerning the prohibition on a university professor wearing a headscarf while teaching; Eweida and Others, cited above, § 105, concerning the dismissal of a registrar of births, deaths and marriages as a result of her refusal to conduct same-sex partnerships; and Ebrahimian v. France, no. 64846/11, ECHR 2015, concerning the prohibition on a social worker in the psychiatric department of a public hospital wearing a headscarf at work). In democratic societies, private citizens, such as the applicant, are normally not under such a duty.", "41. It is true that Article 9 of the Convention does not protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (see S.A.S. v. France, cited above, § 125, and the authorities cited therein; see also, mutatis mutandis, Enver Aydemir v. Turkey, no. 26012/11, §§ 68-84, 7 June 2016, in which the Court held that the applicant’s refusal, because of his idealistic and political views linked to the Koran and Sharia, to perform military service for the secular Republic of Turkey was not such as to entail the applicability of Article 9). Indeed, there may be cases when it is justified to order a witness to remove a religious symbol (see paragraph 22 above). However, the Court would emphasise that the authorities must not neglect the specific features of different religions. Freedom to manifest one’s religion is a fundamental right: not only because a healthy democratic society needs to tolerate and sustain pluralism and diversity, but also because of the importance to an individual who has made religion a central tenet of his or her life of being able to communicate that belief to others (see Eweida and Others, cited above, § 94). The Court sees no reason to doubt that the applicant’s act was inspired by his sincere religious belief that he must wear a skullcap at all times, without any hidden agenda to make a mockery of the trial, incite others to reject secular and democratic values or cause a disturbance (see, in this regard, Eweida and Others, cited above, § 81). Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail. The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see S.A.S. v. France, cited above, § 127-28).", "42. Unlike some other members of his religious group (see paragraph 6 above), the applicant appeared before the court as summoned and stood up when requested, thereby clearly submitting to the laws and courts of the country. There is no indication that the applicant was not willing to testify or that he had a disrespectful attitude. In these circumstances, his punishment for contempt of court on the sole ground of his refusal to remove his skullcap was not necessary in a democratic society.", "43. The Court concludes that in the present case the domestic authorities exceeded the wide margin of appreciation afforded to them (see paragraph 38 above). There has therefore been a violation of Article 9 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "44. The applicant submitted that he had been discriminated against in the enjoyment of his freedom to manifest his religion. He relied on Article 14 of the Convention taken together with Article 9 of the Convention.", "45. The Government contested that argument.", "46. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "47. Since the applicant’s complaint relating to Article 14 amounts to a repetition of his complaint under Article 9, and having regard to the finding relating to Article 9 (in paragraph 43 above), it is not necessary to examine whether, in this case, there has also been a violation of Article 14 (see, for example, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 134, ECHR 2001-XII).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "49. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.", "50. The Government considered the claim to be excessive.", "51. The Court accepts that the applicant suffered distress as a result of the violation found, justifying an award in respect of non-pecuniary damage. Making its assessment on an equitable basis, as required by the Convention, the Court awards the applicant EUR 4,500 under this head, plus any tax that may be chargeable.", "B. Costs and expenses", "52. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court.", "53. The Government considered the claim to be unsubstantiated.", "54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the breaches found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. Since no such documents have been submitted in the present case, the Court rejects this claim (see, for example, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 158, ECHR 2014).", "C. Default interest", "55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1977 and lives in Dison.", "7. The applicant stated that she was a Muslim and had decided, on her own initiative, to wear the niqab – a veil covering the face except for the eyes – in accordance with her religious beliefs. She said that she had taken the decision to wear the full -face veil when she was sixteen years old. She explained that her choice had been accepted by her family and friends and by her husband. She also stated that she had always agreed to remove her veil for identification purposes as required by the authorities, such as when issuing her identity card.", "8. On 18 February 2008 the Vesdre district administrative authorities proposed an amendment to the district regulations regarding the wearing of the burqa in public thoroughfares and in public places ....", "9. The president of the police district invited the Verviers public prosecutor to express an opinion on that proposal. On 18 March 2008 the public prosecutor replied that he did not have any observations to make.", "10. The municipal councils of the three municipalities belonging to the police district – the municipal council of Pepinster on 23 June 2008, Dison on 26 June 2008 and Verviers on 30 June 2008 – enacted the following provisions of the consolidated by-laws of the Vesdre police district, which differed, moreover, from the original proposal.", "“ Article 113. Save where authorised by the mayor ( Bourgmestre ) of the municipality, wearing a mask or using any strategem whatsoever for the purposes of concealing personal identity shall be forbidden at all times, at any public meeting and in all public places and in public thoroughfares.", "...", "Article 113 bis. The wearing of clothing concealing the face shall be forbidden at all times and in all public places.", "However, a helmet, balaclava or other headgear may be worn where authorised by the legislation on the safety of workers or other legislation.", "...", "11. On 29 August 2008 the applicant lodged an application with the Conseil d ’ État for annulment of Article 113 bis. She argued that the provision in question expressly targeted the Islamic veil, which she wore, and that the resulting ban constituted an interference with her rights guaranteed by Articles 8, 9 and 10 of the Convention and discrimination in breach of Article 14 of the Convention. She contended that the interference did not pursue a legitimate aim as the principle of secularism was not a constitutional principle and there could therefore be no blanket ban on wearing the veil. In any event, even supposing that the aim could be regarded as legitimate, the applicant maintained that the means were disproportionate in the absence of public disorder or threat of public disorder and thus of a pressing social need. In their memorial in reply of 18 April 2011, the three municipalities submitted that the impugned provision sought to guarantee public safety and not to regulate or restrict the exercise of any form of worship.", "12. The auditeur at the Conseil d ’ État delivered a detailed 26-page report in which he concluded that in his opinion the applicant ’ s above-mentioned submission was well founded because public safety could not serve as a basis for a ban on wearing the full -face veil in all places generally open to the public, as no specific public disorder was associated with it as such.", "13. In judgment no. 213.849 of 15 June 2011, the Conseil d ’ État, refusing to follow the opinion of the auditeur, dismissed the application for annulment of the provision ....", "14. That judgment was served on the applicant on 23 June 2011." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Municipal by-laws", "15. In Belgium the wearing of the full -face veil was first banned by municipal by-laws passed by a number of municipalities among which were the provisions being challenged in the instant case (see paragraph 10 above).", "B. The Law of 1 June 2011", "16. A Law prohibiting the wearing of any clothing entirely or substantially concealing the face was enacted on 1 June 2011 and came into force on 23 July 2011.", "17. The relevant provisions of the Law of 1 June 2011 are worded as follows :", "“ Art. 2. Article 563 bis, worded as follows, shall be inserted into the Criminal Code :", "Art. 563 bis. Unless otherwise provided by law, persons who appear in a place that is accessible to the public with their faces completely or partially covered or hidden, such as not to be identifiable, shall be liable to a fine of between fifteen and twenty-five euros [ read : between 120 and 200 euros] and imprisonment of between one and seven days, or to one of those penalties alone.", "However, paragraph 1 hereof shall not concern persons who are present in a place that is accessible to the public with their faces completely or partially covered or hidden, such as not to be unidentifiable, where this is provided for by employment regulations or by an administrative ordinance in connection with festive events .”", "18. In judgment no. 145/2012 of 6 December 2012 the Constitutional Court dismissed applications for judicial review of the Law of 1 June 2011, whilst setting out an interpretative reservation in respect of the Law concerning places of worship.", "19. With regard to the background to the Law and its aims, the Constitutional Court made the following observations :", "“ B.4.2. The authors of the bill [ which led to the enactment of the impugned Law ] sought to endorse a societal model where the individual took precedence over his or her philosophical, cultural or religious ties. Accordingly, they recommended a ban on wearing clothing designed to fully or substantially conceal one ’ s face in public places, stressing the fact that the ban was not based only on public-order considerations but more fundamentally on social considerations, which were crucial, in the view of the authors of the bill, to the notion of ‘ living together ’ in a society which sought to emancipate its members and protect the rights of each and every one of them (Doc. parl., Chamber, 2009-2010, DOC 52-2289/001, p. 5, and Doc. parl., Chamber, S.E. 2010, DOC 53-0219/001, p. 5).”", "20. Regarding the public-safety and legal aim, the Constitutional Court found as follows :", "“In so far as anyone present in public thoroughfares or in a public place must be identifiable, wearing clothing which completely conceals the face poses obvious problems in terms of public safety.", "In order to ban conduct of that type, many municipalities have enacted by-laws with a view to banning the wearing of such clothing, while permitting exemptions from the rules at specific events. However, the court cannot but note that, in one and the same city, certain municipalities do not prescribe the same bans. Those differences in regime result in a form of untenable legal uncertainty for citizens and for the authorities responsible for punishing that type of conduct.", "The authors of the bill therefore recommend that the question be determined at federal level so that the same rule applies throughout the country (Doc. parl., Chamber, 2009-2010, DOC52-2289/001, pp.5-6, and Doc. parl., Chamber, S.E.20 10, DOC 53-0219/001, pp. 5-6).”", "21. As to whether the ban on wearing the veil met a pressing social need and was proportionate to the legitimate aims pursued by the legislature, the Constitutional Court found as follows :", "“ B.17. It can be seen from the explanatory memorandum to the bill which became the Law at issue ... that the legislature sought to defend a societal model where the individual took precedence over his philosophical, cultural or religious ties, with a view to fostering integration for all and to ensuring that citizens shared a common heritage of fundamental values such as the right to life, the right to freedom of conscience, democracy, gender equality, or the principle of separation between Church and State.", "... the legislative history shows that three aims were pursued: public safety, gender equality and a certain conception of ‘ living together ’ in society.", "...", "B.21. The legislature further justified its intervention by a certain conception of ‘ living together ’ in a society based on fundamental values, which, in its view, derive therefrom.", "The individuality of every subject of law ( sujet de droit ) in a democratic society is inconceivable without his or her face, a fundamental element thereof, being visible. Taking into account the essential values that the legislature sought to defend, it was entitled to take the view that the creation of human relationships, being necessary for living together in society, was rendered impossible by the presence in the public sphere, which quintessentially concerned the community, of persons who concealed this fundamental element of their individuality. Whilst pluralism and democracy entail the freedom to display one ’ s beliefs, in particular by the wearing of religious symbols, the State must pay attention to the conditions in which such symbols are worn and to the potential consequences of wearing such symbols. To the extent that the concealment of the face has the consequence of depriving the subject of law, a member of society, of any possibility of individualisation by facial appearance, whereas such individualisation constitutes a fundamental condition related to its very essence, the ban on the wearing of such clothing in a public place, even though it may be the expression of a religious belief, meets a pressing social need in a democratic society.", "B.22. As to the dignity of women, here too the legislature was entitled to take the view that the fundamental values of a democratic society precluded the imposing of any obligation on women to conceal their face, under pressure from members of their family or their community, and therefore their deprivation, against their will, of their freedom of self-determination.", "B.23. However, ... the wearing of the full-face veil may correspond to the expression of a religious choice. That choice may be guided by various reasons with many symbolic meanings.", "Even where the wearing of the full-face veil is the result of a deliberate choice on the part of the woman, the principle of gender equality, which the legislature has rightly regarded as a fundamental value of democratic society, justifies the opposition by the State, in the public sphere, to the manifestation of a religious conviction by conduct that cannot be reconciled with this principle of gender equality. As the court has noted in point B.21, the wearing of a full-face veil deprives women – to whom this requirement is solely applicable – of a fundamental element of their individuality which is indispensable for living in society and for the establishment of social contacts.", "B.24. The court must further examine whether recourse to a criminal sanction to guarantee compliance with the prohibition imposed by the Law has no disproportionate effects in relation to the aims pursued.", "...", "B.28 In so far as the individualisation of persons, of which the face is a fundamental element, constitutes an essential condition for the functioning of a democratic society, of which each member is a subject of law, the legislature was entitled to consider that the concealment of the face could endanger the functioning of society as thus conceived and, accordingly, should be punished by criminal sanctions.", "... ”", "...", "C. Other relevant provisions and situation in other countries", "...", "23. The relevant provisions appearing in other international instruments and the situation in other European countries are set out in the judgment S.A.S. v. France [GC] ( no. 43835/11, §§ 35-52, ECHR 2014 (extracts) ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 8, 9 AND 10 OF THE CONVENTION, TAKEN SEPARATELY AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "24. The applicant complained of a violation of her right to respect for her private life, her right to freedom to manifest her religion or beliefs and her right to freedom of expression. She relied on Articles 8, 9 and 10 of the Convention, which read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 9", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "...", "25. She also complained of a violation of Article 14 of the Convention taken in conjunction with the above-cited provisions. Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "...", "B. Merits", "1. The parties ’ submissions", "a) The applicant", "27. The applicant challenged the submission that the ban in question satisfied the condition laid down in paragraph 2 of Articles 8 and 9 of the Convention of necessity in a democratic society in the interests of public safety, for the prevention of disorder, the protection of health or morals or the protection of the rights and freedoms of others. With regard to the aim of “living together” in a democratic society, it was the opposite reasoning – that of openness and tolerance – which should take precedence in a pluralist democratic society as was evidenced by the tolerance that there had always been of dress codes rejecting the living together principle. At best, it could be regarded as a praiseworthy political objective, but one that could not be achieved by some stigmatising by-laws that were contrary to the Convention. In her submission, the factors justifying the ban on safety grounds had been advanced exclusively with regard to the full-face veil, were non-existent and the real aim being pursued by the by-laws was the prohibition of the full-face veil in public places. She argued, lastly, that the issue of dignity and gender equality was irrelevant to justification on grounds of “ protection of the rights and freedoms of others ” since the exercise of the freedom and wishes of women themselves was hindered.", "28. With regard, lastly, to the proportionality of the ban in terms of the aim pursued, the applicant complained that the Constitutional Court had, wrongly, endorsed the argument that the legislature was justified in promoting a societal model which disregarded the philosophical, cultural or religious beliefs of the individuals of which that society was composed, in breach of the principles of equality and freedom. Attributing to the Law of 1 June 2011 an objective of integration and “living together” created, in her view, a total reversal of values, where homogeneity prevailed over the right to difference, thus peremptorily giving preference to a conception of “living together” and democracy to the detriment of the individual liberties which were the basis thereof. The fact that certain Muslim States had voiced their objection to the wearing of the niqab was merely a reflection of the need to give substance to the reference to Islam in their Constitution.", "b) The Government", "29. The Government based their defence on the Law of 1 June 2011 and the reasons for enacting it. They submitted that the legal ban on the full-face veil had been preceded by a more general debate on, inter alia, how the full-face veil had first appeared in Belgium. In that context it had transpired that the wearing of the full-face veil was not a religious precept laid down in the Koran and that it had, moreover, been banned in a number of Muslim countries on grounds that it was contrary to the spirit of Islam. That being said, the Constitutional Court, in a judgment delivered on 6 December 2012, on the Law of 1 June 2011 ( see paragraph 19 above) had transcended the theological and intellectual debate surrounding the issue and highlighted three fundamental reasons justifying the Law, namely, that the wearing of “clothing fully or substantially concealing the face” posed a safety issue, was an obstacle to women ’ s rights to equality and dignity and, more fundamentally, undermined the very essence of the principle of “living together”.", "30. The Government took the view that no one was entitled to claim, on the basis of individual or religious freedom, the power to decide when and in what circumstances they would agree to uncover their face in a public place. The assessment of public-safety requirements necessarily had to be delegated to the public authorities. Reference therefore had to be made to the conditions laid down in the by-laws, as in the present case, or in the subsequent Law, in order to determine the circumstances in which a face could or could not be concealed.", "31. The Government did not dispute that the issue of women ’ s rights to equality and dignity had been raised by both parties and that the wearing of the full-face veil was not necessarily the expression of subservience to men but could be the exercise of the right to choose one ’ s clothing so as to inspire dignity. However, whilst the concept of dignity of clothing could be subjective, the more multicultural a society and the greater the co-existence of different forms of religious beliefs and expressions of cultural traditions, the more individuals had to refrain from ostensibly displaying those beliefs and traditions in public. No one could dispute the fact that dress codes were the product of societal consensus and the result of a compromise between individual freedoms and codes of interaction within society, and that those who wore clothing concealing their face were signaling to the majority that they did not wish to take an active part in society, whereas one of the values forming the basis on which a democratic society functioned was the possibility of an active exchange between individuals.", "32. The Government then pointed out that the legislature had sought to defend a societal model in which the individual outweighed his or her philosophical, cultural or religious attachments so as to encourage full integration and enable citizens to share a common heritage of fundamental values such as democracy, gender equality and the separation of Church and State. As indicated by the Constitutional Court, where the consequence of concealing the face was to prevent a person ’ s facial individualisation, even though such individualisation was a fundamental condition associated with his or her very essence, the prohibition on wearing clothing concealing the face in places accessible to the public, even if this were the expression of a religious belief, met a compelling social need in a democratic society.", "2. Observations of the third-party interveners", "a) The non-governmental organisation Liberty", "33. The third-party intervener observed that the ban sought explicitly to prohibit the wearing of the burqa and that this led to stigmatisation and potential discrimination against Muslim women. Whilst pluralism, tolerance and broadmindedness ought to be features of a democratic society, the Belgian legislature had chosen to increase the risks already affecting Muslims as a result of an Islamophobic climate.", "34. Whatever the aims subsequently proclaimed by the Belgian legislature, it was clear that the municipal by-laws in question had introduced the ban on wearing the veil in order to promote gender equality. The by-laws had first been drafted at the request of the Verviers Women ’ s Advisory League in 2008. It was paradoxical that the idea of gender equality ran counter to the profoundly personal choice of women who decided to wear the veil, with the attendant risk that imposing legal sanctions exacerbated the inequality that was supposed to be addressed. Women who were forced to wear the veil were thus condemned to remain at home.", "35. With regard to the legitimate aim of preserving the concept of “living together”, the third-party intervener asked the Court to reconsider its position in the light of the rise of Islamophobia. In its submission, the ban on covering one ’ s face in public and the accompanying political debate stigmatised the visible adherence to Islam and thus reinforced negative stereotypes with regard to Muslims. Like the minority of judges in the case of S.A.S. v. France [GC], ( no. 43835/11, §§ 35-52, ECHR 2014 (extracts)), the third-party intervener considered that far from seeking to ensure tolerance between the vast majority and the small minority, the Belgian legislature had merely prohibited what was seen as a cause of tension. It also considered that the blanket ban could be interpreted as a sign of selective pluralism and limited tolerance.", "36. Furthermore, unlike in France, where the principle of interaction between individuals had been found by the Court to be essential to the concept of fraternity, Belgium did not have the same constitutional commitment to secularism.", "37. Lastly, the third-party intervener submitted that, in any event, the ban under the by-laws in question was formulated in very broad terms in that it was applicable “at all times and in all public places” and was disproportionate.", "b) The Human Rights Centre of Ghent University", "38. The intervening party first commented on the differences between the situation in Belgium, as reflected in the Law of 1 June 2011, and in France.", "39. Firstly, the Belgian legislature had not prescribed penalties against persons who forced others to wear the full-face veil and penalised only the person wearing the veil, that is, the victim. That difference was paradoxical given the objective accepted in Belgium and recognised in the above-mentioned judgment of the Constitutional Court ( paragraph B.22, see paragraph 21 above ) of banning the veil in order to protect women from cultural oppression by men and safeguard their dignity.", "40. Secondly, in Belgium, the wearing of the veil had first been banned by municipal by-laws. Certain provisions of these, which had been drafted at the end of the nineteenth century, had targeted any manner of concealing the face and had subsequently been interpreted as also applicable to the veil. Other provisions dated back to the early years of the present century and had been drafted specifically to proscribe the wearing of the veil. Application of the by-laws had, moreover, given rise to conflicting case-law. Today the general ban under the Law coexisted with the municipal by-laws, the former serving as political and legal “cover” for the latter.", "41. Thirdly, the process preceding the enactment of the Belgian Law banning the wearing of the veil had admittedly been longer but had been far less intricate than in France. The parliamentary debates had been speedy, the request to organise a hearing of experts and for an opinion from the Legislation Section of the Conseil d ’ Etat had been rejected, the bill had been discussed only in the House of Representatives, and not referred to in the Senate.", "42. That lack of “democratic” quality of the legislative process in Belgium should induce the Court to question the extent of the restraint exercised by it in reviewing Convention compliance, expressed in the judgment S.A.S. v. France cited above (§§ 154- 55), when assessing the situation in Belgium having regard to the requirements of the Convention and, accordingly, the margin of appreciation that has to be recognised in the present case.", "43. The intervening party then provided the results of a survey carried out in 2010-2011 among 27 women wearing the full-face veil, in order to put the effect of the “living together” aim pursued by the ban on wearing the veil into perspective. Many of them said that, far from being a socially inhibiting factor, wearing the veil allowed them, on the contrary, to take part in numerous activities as mothers and wives which they would have felt uncomfortable engaging in otherwise. On the other hand, a number of others referred to the obstacle to communication created by wearing the veil in the reaction of others, which was either one of fear or a failure to address them directly. The survey showed that the Belgian legislature had made the incorrect assumption that women wearing the full-face veil were unable or unwilling to interact with other members of society.", "44. The intervening party also submitted that the ban in question should be viewed in a wider societal context in which there was a substantial degree of hostility towards Muslims. In that sort of context hostile stereotypes could hamper the debate and it became difficult to distinguish between measures taken in good faith in the general interest and harassment of unpopular minorities designed to pander to the intolerant sentiments of a majority.", "45. Were the Court to continue relying on the legitimate “living together” aim, it should be shown, in the intervening party ’ s submission, that the general-interest objective pursued was actually at stake. The Court would have to ascertain whether the ban was in actual fact capable of remedying the problem identified and whether the adoption of alternative less restrictive measures had been sufficiently taken into consideration.", "3. The Court ’ s assessment", "46. The Court finds that although the instant case was introduced after the entry into force of the Law of 1 June 2011 banning the wearing of any clothing fully or substantially covering the face, it concerns a provision of a by-law enacted prior to that Law : Article 113 bis of the consolidated municipal by-laws of the Vesdre police district. Nevertheless, it can be seen from the application and from the observations submitted to the Court that the arguments refer almost exclusively to the Law of 1 June 2011 and to the analysis thereof by the Constitutional Court (see paragraph 16 above). As the application concerns an issue posed in terms which very closely resemble those surrounding the enactment of the French Law of 11 October 2010 prohibiting the concealment of one ’ s face in public places, the Court will largely refer to the judgment S.A.S. v. France, cited above, which examined the French ban in the light of the relevant provisions of the Convention.", "a) Alleged violation of Articles 8 and 9 of the Convention", "47. The Court observed that the ban on wearing in public places clothing designed to conceal the face raised questions in terms of the right to respect for private life of women who wished to wear the full-face veil for reasons related to their beliefs, and in terms of their freedom to manifest those beliefs. That being said, in so far as that ban is criticised by individuals who, like the applicant, complain that they are consequently prevented from wearing in public places clothing that the practice of their religion requires them to wear, it mainly raises an issue with regard to the freedom guaranteed by Article 9 of the Convention to manifest one ’ s religion or beliefs (see S.A.S. v. France, cited above, §§ 106-09).", "i. Regarding the quality of law", "48. The Court notes that the applicant did not dispute that the consolidated municipal by-laws of the Vesdre police district had the quality of “law”. The ban can therefore be deemed to have a “legal” basis meeting the criteria established in the Court ’ s case-law concerning paragraph 2 of Articles 8 and 9 of the Convention.", "ii. Regarding the legitimate aim pursued", "49. The Court notes in the light of its examination of the observations submitted to it that the parties assumed that the ban under the municipal by-laws in question pursued the same aims as those of the Law enacted subsequently, namely public safety, gender equality and a certain conception of “living together” in society.", "50. The intervening organisation Liberty concluded, however, from the fact that the by-laws had been drafted in 2008 following a request by the Verviers Women ’ s Advisory League that the aim of ensuring gender equality had been the overriding factor (see paragraph 34 above). The Court considers that it has no evidence on which to conclude that this aim carried greater weight than the other above-mentioned aims.", "51. The Court observes that the above-mentioned aims are similar to those retained by the French legislature and examined in the judgment S.A.S. v. France. In that judgment it found that the concern to ensure the observance of the minimum requirements of life in society could be regarded as an element of the “protection of the rights and freedoms of others” and that the impugned ban could be regarded as justified in its principle solely in so far as it sought to guarantee the conditions of “living together” (§§ 140-42). It considers that the same approach applies in the present case.", "iii. Necessity of the ban in a democratic society", "52. The Court observes, on the basis of the legislative history of the Law of 1 June 2011 and the analysis thereof by the Constitutional Court (see paragraphs 19-20 above), that the terms of the issue as debated in Belgium very closely resemble those surrounding the enactment of the above-mentioned French ban examined by the Court in the judgment S.A.S. v. France.", "53. The applicant asked the Court to change the approach taken in the S.A.S. v. France judgment when assessing the proportionality of the ban on the full-face veil. The intervening organisations submitted that the assessment of that issue had to take account of the special features of Belgian society and of the legislative process preceding the ban in Belgium.", "54. As the Court clearly stated in S.A.S. v. France, it must stress the fundamentally subsidiary role of the Convention system and reiterate that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned. Moreover, by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are in principle better placed than an international court to evaluate local needs and conditions (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 175, 15 November 2016). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker is to be given special weight. With regard to Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one ’ s religion or beliefs is “necessary”. That being said, in delimiting the extent of the margin of appreciation in a given case, the Court must also have regard to what is at stake therein. It may also, if appropriate, have regard to any consensus and common values emerging from the practices of the States parties to the Convention (see S.A.S. v. France, cited above, § 129).", "55. The Court is fully aware that a State which, like Belgium, enters into a legislative process of this kind runs the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, and that the impugned ban, even if it is not based on the religious connotation of the garment in question, mainly affects Muslim women who wish to wear the full-face veil ( see S.A.S. v. France, cited above, § 149). Nor is it unaware that by imposing a ban on wearing in public places a garment designed to conceal the face the respondent State restricts to a certain extent the reach of pluralism, since the ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public (see S.A.S. v. France, cited above, § 149).", "56. However, the respondent State, in enacting the provisions in question, sought to address a practice which it deemed incompatible, in Belgian society, with the ground rules of social communication and more broadly the establishment of human relations that are essential for living together (see the judgment of the Constitutional Court of 6 December 2012, paragraph B.21, cited in paragraph 21 above ). In doing so, it sought to protect a form of interaction between individuals that was essential, in the respondent State ’ s view, to the functioning of a democratic society ( see the above-cited judgment, paragraph B.28, cited in paragraph 21 above ). From this perspective, and similarly to the situation which previously arose in France ( see S.A.S. v. France, cited above, § 153), it seems that the question whether or not it should be permitted to wear the full-face veil in public places in Belgium constitutes a choice of society.", "57. The Court points out, as it emphasised in S.A.S. v. France ( cited above, §§ 153-55), that in such cases it has to show restraint in its scrutiny of Convention compliance, in this case in assessing a decision taken democratically within Belgian society. The allegation by the intervening organisations that the democratic process that had led to the ban on wearing the full-face veil in Belgium had not taken full account of what was at stake cannot carry weight in the present case regarding the assessment of the situation. Besides the fact that this criticism does not directly concern the by-laws in question but refers to the Law of 1 June 2011, the Court notes, obiter dictum, that the decision-making process leading up to the impugned ban took several years and was accompanied by a wide-ranging debate within the House of Representatives and by a detailed and thorough examination by the Constitutional Court of all the interests involved.", "58. While it is true that the scope of the ban is broad, because all places accessible to the public are concerned, the contested provisions do not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face (see S.A.S. v. France, cited above, § 151).", "59. The Court observes, lastly, that there is still no consensus within the member States of the Council of Europe as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places, which justifies, in the Court ’ s opinion, affording the respondent State a very wide margin of appreciation (see S.A.S. v. France, cited above, § 156).", "60. Consequently, having regard in particular to the breadth of the margin of appreciation enjoyed by the respondent State in the present case, the Court concludes that the ban imposed by the consolidated by-laws of the Vesdre police district can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.", "61. The impugned limitation can thus be regarded as “necessary in a democratic society”. This conclusion holds true with respect both to Article 8 of the Convention and to Article 9.", "62. Accordingly, there has been no violation either of Article 8 or of Article 9 of the Convention.", "b) Alleged violation of Article 14 taken together with Article 8 or Article 9 of the Convention", "63. The applicant complained of indirect discrimination. She observed in this connection that, despite the general terms in which the by-laws in question were expressed, as a Muslim woman who for religious reasons wished to wear the full-face veil in public, she belonged to a category of individuals who were particularly exposed to the ban in question and to the penalties for which it provided. That ban was much less restrictive for other people living or passing through Dison who were not Muslims and in any event did not affect the exercise by them of fundamental liberties.", "64. The Government submitted that the by-laws in question were not discriminatory, as they did not, any more than French law, specifically target the full-face veil and applied to any person who wore an item concealing the face in public, whether a man or a woman, and whether for religious or other reasons.", "65. The Court reiterates that a general policy or measure which has disproportionate prejudicial effects on a group of individuals can be regarded as discriminatory even if it does not specifically target the group and there is no discriminatory intent. This is only the case, however, if such policy or measure has no “objective and reasonable” justification, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be achieved (see S.A.S. v. France, cited above, § 161).", "66. In the instant case, whilst it may be true that the ban imposed by the by-laws has more restrictive consequences for the exercise by certain Muslim women of some of their fundamental liberties, the measure has an objective and reasonable justification for the same reasons as those which the Court has set out previously (see paragraphs 52-62; compare S.A.S. v. France, cited above, § 161).", "67. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Articles 8 and 9.", "c) Alleged violation of Article 10, taken separately and together with Article 14 of the Convention", "68. The Court is of the view that no issue arises under Article 10 of the Convention, taken separately or together with Article 14 of the Convention, that is separate from those that it has examined under Articles 8 and 9 of the Convention, taken separately and together with Article 14 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1946 and lives in Pasiky-Zubrytski.", "A. Events which led to criminal charges against the applicant", "6. Since 1974 the applicant has worked as a teacher in the Lviv Boarding School no. 6 for Children with Language Disorders (“the School”). In 1995 he was elected head of the school branch of the “VOST” - one of the two trade unions represented in the School.", "7. On 12 January 1996 the local Board of Education employed Mrs P. to serve as a director, notwithstanding opposition from some staff, in particular the VOST members.", "8. In May 1996 Mrs P. dismissed an employee, who was a VOST member, without the consent of the VOST. Subsequently, in 1998, this employee was reinstated as a result of a court action brought on her behalf by the VOST.", "9. On 6 June 1996 Mrs P. refused to sign a collective agreement, signed by the VOST and the head of the second trade union present at the School.", "10. On an unspecified date in late 1996, a former School driver who had been dismissed by Mrs P. for incompetence submitted a written statement to the applicant, alleging that in April 1996 Mrs P. had ordered him to unload ten boxes of humanitarian aid intended for the School at her father ’ s estate and that on many occasions she had used the school vehicle for personal purposes.", "11. In early 1997 the applicant in his capacity as a trade union leader made several applications to the Control Inspection Department ( Контрольно-ревізійне управління, a public audit service, scrutinising the use of funds by State-owned entities, “the KRU”), alleging that Mrs P. had abused her office and misused School property and funds. In particular he stated that Mrs P. had appropriated ten boxes of humanitarian aid, the School ’ s TV set, other video equipment and bricks from the school boundary wall which had been demolished. On several occasions the applicant also complained about the situation to Mr U., the regional leader of the VOST.", "12. In response to these complaints in 1997 the KRU held several inquiries into the use of the School funds.", "13. In its report of 28 February 1997, the KRU stated that there were no serious instances of mismanagement of the School ’ s property.", "14. The KRU ’ s report of 26 March 1997, however, revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid, charity and the bricks. However, no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by Mrs P.", "15. In April 1997 the applicant on behalf of the School branch of the VOST, Mr U. on behalf of the Regional VOST, and Mr N. on behalf of the local branch of the Ukrainian Conservative Party made a criminal complaint against Mrs P. to the Lychakivsky District Prosecutor ’ s Office (“the Prosecutor ’ s Office”) a criminal complaint against Mrs P., referring largely to the same circumstances as in the VOST ’ s complaints to the KRU. On 28 April 1997 the Prosecutor ’ s Office dismissed this complaint for want of evidence of criminal conduct on Mrs P. ’ s part. On 17 June 1997 a second criminal complaint was dismissed on the same ground. However, criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment.", "16. On 26 May 1997 several representatives of the Regional VOST picketed the Lychakivsky District Administration protesting against the alleged abuses by Mrs P. The participants in the picket carried placards with various slogans criticising Mrs. P. and her deputy Mrs N., as well as their supporters within the local administration. The slogans concerning Mrs P. read as follows: “ Mrs P. and Mrs N. - return humanitarian aid and 20,000 bricks from the school wall to the disabled children ”; “ Boarding school no. 6 director Mrs P. and her clique of VOST persecutors [should be submitted] to court ”; and “ Mrs P. and Mrs N., sticky hands off the disabled children of Boarding school no. 6 ”.", "B. Criminal proceedings against the applicant", "17. In May 1998 Mrs P. brought a private prosecution against the applicant. She complained, in particular, that in his letters to the KRU and the Prosecutor ’ s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of 26 May 1997, during which the demonstrators displayed offensive placards. Mrs P. further concluded that the applicant ’ s actions fell within the ambit of Article 125 § 2 (defamation in print) and § 3 (false accusation of serious crimes) and Article 126 (insult) of the Criminal Code of 1960 in force at the material time.", "18. On 14 May 1998 a judge of the Lychakivsky District Court of Lviv found that the applicant ’ s conduct vis-à-vis Mrs P. fell within the ambit of Article 125 § 1 of the Criminal Code (simple defamation) and Article 126, and initiated criminal proceedings against the applicant. The judge further ordered that the applicant be placed under an undertaking not to abscond.", "19. In the course of the investigation, the charges against the applicant were re-qualified from Article 125 § 1 to Article 125 § 3.", "20. On 1 2 November 1999 the Prosecutors ’ Office notified the applicant of his indictment under Article 125 § 3 and Article 126 of the Criminal Code.", "21. On 15 November 1999 the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings.", "22. On 26 January 2000 the Lychakivsky District Court held the first hearing in the applicant ’ s case.", "23. In March 2000 the applicant ’ s case was transferred to the Shevchenkivsky District Court of Lviv (“the Shevchenkivsky Court ”).", "24. On 26 June 2001 the Shevchenkivsky Court found the applicant guilty of an offence under Article 125 § 3 as charged and dropped charges under Article 126 as redundant. It sentenced him to one year ’ s imprisonment suspended for one year and to a fine of 200 Ukrainian hryvnas (UAH). The court also allowed Mrs P. ’ s civil claim in part and ordered the applicant to pay her UAH 1,000 in non -pecuniary damages and UAH 100 in legal fees.", "25. In its judgment the court established that in numerous letters signed by the applicant, Mrs P. had been baselessly accused of misappropriation of public funds. The court also found that the applicant had initiated and participated in the picketing of 26 May 1997, referring to various pieces of evidence, including submissions by several School employees that they had seen him during the picket holding a slogan.", "26. The applicant appealed against the judgment of 26 June 2001. He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods. Furthermore, no attention had been accorded to the fact that he had acted in his official capacity as a local VOST leader, empowered by the union members to inform the authorities about Mrs P. ’ s official misconduct and that according to the findings of the KRU and the law-enforcement authorities his accusations had not been entirely baseless. The applicant further denied any involvement in the picketing, referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor ’ s certificate concerning his inpatient treatment until 27 May 1998. He also alleged that the case could not be considered under § 3 of Article 125 of the Criminal Code, as pursuant to the decision of 14 May 1998 criminal charges filed by Mrs P. under this provision had been re-qualified as charges under § 1 of Article 125.", "27. On 21 August 2001 the Lviv Regional Court of Appeal heard the case in the applicant ’ s absence and upheld the judgment of 26 June 2001. It found, in particular, that the applicant ’ s guilt, including in respect of participation in the picketing, had been proved by numerous sources of evidence. In particular, several School employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital premises.", "28. The applicant filed eleven cassation appeals, which were dismissed due to his failure to follow formalities envisaged by law. On 25 April 2003 a judge of the Supreme Court declared the applicant ’ s twelfth appeal in cassation, in which he raised essentially the same arguments as in his appeal, admissible.", "29. On 13 November 2003 the Supreme Court upheld the previous judgments." ]

[ "II. RELEVANT DOMESTIC LAW", "1. Criminal Code of 1960", "30. The text of Article 125 of the Code read as follows:", "Defamation [ Наклеп ], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...", "Defamation in print ... shall be punishable by ....", "Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years ’ imprisonment.", "31. Article 126 of the Code provided as follows:", "“Insult [ Образа ], namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ... ”", "32. Following a process of legislative reform, the New Ukrainian Criminal Code of 5 April 2001 no longer classifies defamation and insult as criminal offences.", "2. Code of Criminal Procedure", "33. The text of Article 27 of the Code of Criminal Procedure (governing the private prosecution proceedings, as in force before 21 June 2001) may be found in the judgment of 10 August 2006 in the case of Lyashko v. Ukraine ( no. 21040/02, § 23).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF FORMULATION OF THE CHARGES", "34. The applicant complained that he had been found guilty of an offence with which he had not been charged. He referred to Article 4 of Protocol No. 7 in this regard. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that this complaint falls to be examined under Article 6 §§ 1 and 3 (a) and (b) of the Convention, which read as follows:", "“ ... Everyone charged with a criminal offence has the following minimum rights:", "(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;", "(b) to have adequate time and facilities for the preparation of his defence; ... .”", "35. The Government argued that the applicant ’ s complaint, as formulated, could not be read as stating that fair trial guarantees had been compromised. They further submitted that the applicant ’ s rights under Article 6 of the Convention had been duly observed in every way.", "36. The applicant disagreed. He maintained that the criminal proceedings against him were generally unfair. He further noted that he had not been able to understand fully the nature and the scope of charges against him and to prepare his defence accordingly. In particular, he had been indicted under Article 125 § 3 of the Criminal Code, while the criminal proceedings had been initially instituted with reference to Article 125 § 1 of the same Code.", "37. The Court reiterates that the rights guaranteed under Article 6 § 3 (a) must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention. It further notes that in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair (see Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999 ‑ II ). The Court also considers that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused ’ s right to prepare his defence (ibid., § 54 ).", "38. Turning to the facts of the case, the Court notes that the court hearings in the applicant ’ s case, leading to his eventual conviction under Article 125 § 3 of the Criminal Code of 1961 in force at the material time, were held between January 2000 and June 2001. In the meantime, the applicant had been notified of his indictment under the above criminal provision on 12 November 1999 and had further been given full access to the case file on 15 November 1999. In these circumstances the Court finds that the applicant has not made out a valid claim concerning lack of proper notification of the charges against him or availability of necessary time and facilities for preparation of his defence. This part of the application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "39. The applicant further complained that his conviction for defamation was contrary to Articles 10 and 1 1 of the Convention. The Court finds that the applicant ’ s right to freedom of expression is at the heart of this complaint, which falls to be examined under Article 10 of the Convention. The relevant provision reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "40. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "41. The applicant contended that his conviction was not “necessary in a democratic society”. As a union leader, not only did he have the right, but he was under a direct duty to bring up the information concerning Mrs P. ’ s purported abuses. His complaints about her official misconduct directed to the competent authorities and to the Head of the Regional VOST had been drafted in good faith and pursued legitimate public interest. As regards the picketing, the applicant had neither organised it nor had taken part in it or designed the slogans. He could not therefore be held responsible for any dissemination of defamatory information during this action, which, according to his information, had been organised by the Regional VOST and the local branch of the Conservative Party.", "42. The Government acknowledged that the applicant ’ s conviction for defamation constituted interference with his rights guaranteed under Article 10 of the Convention. They maintained, however, that this interference was in accordance with the law, pursued a legitimate aim, namely the protection of Mrs P. ’ s reputation, and was necessary in a democratic society. In this regard they submitted that the applicant had overstepped the limits of permissible criticism of a civil servant, in particular, as he had directly accused Mrs P. of having committed serious criminal offences, thereby undermining her right to presumption of innocence. Furthermore, the financial penalties imposed on the applicant had not been disproportionate to his income, and the prison sentence was not long and in any case the applicant had not served it.", "2. The Court ’ s assessment", "43. The Court notes at the outset that the domestic judicial authorities referred to two sets of facts as the basis for the applicant ’ s conviction: the letters which he had sent to the KRU and the prosecutor ’ s office demanding investigations into Mrs P. ’ s purported official misconduct and the picket of 26 May 1997, which he had organised and taken part in.", "44. The Court finds it indisputable that the applicant ’ s conviction for defamation under Article 125 § 3 of the Criminal Code constituted interference with his rights guaranteed under Article 10 of the Convention; and that this interference was in accordance with the law and pursued the legitimate aim of protecting Mrs P. ’ s reputation. It remains to be determined whether this interference was “necessary in a democratic society” or whether, in the circumstances of the present case, a fair balance was struck between the protection of the applicant ’ s freedom of expression and Mrs P. ’ s reputation, a right which, as an aspect of private life, is protected by Article 8 of the Convention (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § § 90-91, ECHR 2004 ‑ XI ).", "45. In this regard the Court considers at the outset that the applicant was directly accusing Mrs P. of misappropriation of public funds and property, as well as abuse of her office as a director of a State boarding school. Notwithstanding the particular role played by the applicant in his capacity as union representative, as well as that his statements, which related to official conduct of a public employee, were as such a matter of public concern, the Court finds that he had a duty to react within limits fixed, inter alia, in the interest of “protecting the reputation or rights of others”, including the presumption of innocence ( see Constantinescu v. Romania, no. 28871/95, § 72, ECHR 2000 ‑ VIII). Moreover, the applicant was obliged to have regard to the duty of loyalty, reserve and discretion owed by him to his employer (see, for example, Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008 ‑ ... ).", "46. The Court further states that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace must be protected, in particular where the employee concerned is a part of a small group of persons aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja, cited above, § 72). In the light of the duty of discretion referred to above, such disclosure should be made in the first place to the person ’ s superior or other competent authority or body. It is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public ( see Guja, § 73 ).", "47. In light of these principles, the Court finds that, as regards the fact that the applicant signed several letters to the KRU and the prosecutors ’ office demanding investigations into Mrs P. ’ s official conduct, he cannot be reproached for doing so in bad faith, in particular, as he had acted on behalf of his trade union and presented various materials in support of his allegations. The Court finds, therefore, that, in so far as the interference with the applicant ’ s freedom of expression was based on the above letters addressed to the competent authorities, its “necessity” in the present case has not been established.", "48. In so far as the applicant ’ s conviction was, however, based on his participation in the picketing of 26 May 1997, the Court notes that the applicant ’ s contention that he had personally not organised and not participated in the action was rejected by the domestic courts of three levels of jurisdiction following adversary proceedings, in the course of which a wide range of evidence, including witness statements, was examined. In the absence of any prima facie evidence of procedural unfairness, the Court is not in a position to review this factual conclusion.", "49. The Court further notes that the picketing took place following the inquiry by the KRU, revealing some mismanagement of the school property and a further investigation by the prosecutors ’ office into the allegation of official misconduct against Mrs P. On 28 April 1997 the latter, however, resulted in refusal to institute criminal proceedings against Mrs P. for want of inculpating evidence. One allegation (appropriation of the School video equipment) subsequently led to initiation of criminal proceedings. However, no evidence had been either adduced by the applicant or collected by the prosecution to implicate Mrs P. in the incident. According to the case file materials neither the applicant nor his supporters ever attempted to employ any procedural means available under domestic law to challenge the inefficiencies of the investigations by the KRU or the law-enforcement officials and the refusals to institute criminal proceedings against Mrs P.", "50. In the meantime, some slogans displayed during the picketing in front of the District Administration building were phrased in particularly strong terms, directly accusing Mrs P. of misappropriation of School property ( see § 16 above). The Court finds that these accusations could, in the circumstances, be taken as allegations of fact, which, in the absence of sufficient proof of their validity could reasonably be deemed defamatory and undermining of Mrs P. ’ s right to be presumed innocent of serious offences.", "51. Regard being had to the nature of the accusations against Mrs P. displayed in the slogans, the applicant ’ s duty of discretion vis-à-vis his employer and the fact that he engaged in the public picketing before exhausting other procedural means of complaining about Mrs P. ’ s official misconduct, the Court accepts that the domestic authorities acted within their margin of appreciation in considering it necessary to convict the applicant for defamation, in so far as his actions concerned organisation of and participation in the picketing. What remains to be determined is whether the interference in issue was proportionate to the legitimate aim pursued, in view of the sanctions imposed (see Constantinescu, cited above, § 110).", "52. In this regard the Court notes that, besides being ordered to pay fine and a sum in compensation to Mrs P., the applicant was sentenced to one year ’ s imprisonment. The Court considers that, while the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals ’ reputations, they must not do so in a manner that unduly hinders public debate concerning matters of public concern, such as misappropriation of public funds (see, mutatis mutandis, Cumpǎnǎ and Mazǎre, cited above, § 113 ). It further considers that the circumstances of the instant case – a classic case of defamation of an individual in the context of a debate on a matter of public interest – presented no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect on public discussion, and the notion that the applicant ’ s sentence was in fact suspended does not alter that conclusion particularly as the conviction itself was not expunged (see, mutatis mutandis, Cumpǎnǎ and Mazǎre, cited above, § 116 and Salov v. Ukraine, no. 65518/01, § 115, ECHR 2005 ‑ VIII (extracts) ).", "53. Overall, the Court finds that, in convicting the applicant in respect of the letters he sent to KRU and the prosecutor ’ s office, and in imposing a lengthy suspended prison sentence at the end of the proceedings, the domestic courts in the instant case went beyond what would have amounted to a “necessary” interference with the applicant ’ s freedom of expression.", "54. There has therefore been a violation of Article 10 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "55. The applicant also complained under Article 6 § 1 and 3 (c) of the Convention that he had not been duly summoned for the hearing before the Court of Appeal and that the criminal proceedings against him had lasted an unreasonably long time. Lastly, he relied on Article 13 of the Convention and Article 2 of Protocol No. 7 without further specification.", "56. Having considered the applicant ’ s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.", "57. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "58. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "59. The applicant claimed pecuniary damage in the amount of the fine and the compensation paid by him to Mrs P. as well as 820 euros (EUR) in medical expenses allegedly sustained on account of stress caused by his unfair criminal persecution. He also claimed EUR 5,000 in respect of non-pecuniary damage.", "60. The Government contested these claims as unsubstantiated.", "61. Regard being had to the nature of the violation found in the present case, the Court finds no causal link between it and the pecuniary damage claimed by the applicant. It therefore dismisses the claim for pecuniary damage. The Court accepts, on the other hand, that the applicant has suffered non-pecuniary damage – such as distress and frustration resulting from violation of his right under Article 10 of the Convention – which cannot be sufficiently compensated by the mere finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 under this head.", "B. Costs and expenses", "62. The applicant also claimed UAH 5,800 in legal fees, translation and copying expenses and UAH 336.74 in postal expenses incurred in connection with his correspondence with the Court as well as with various domestic authorities. He presented receipts for the postal services.", "63. The Government submitted that the applicant ’ s claim was substantiated only in so far as it related to his correspondence with the Court.", "64. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 50 covering costs under all heads.", "C. Default interest", "65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed.", "A. The events leading to the applicant’s dismissal", "7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund ( Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff.", "8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking.", "9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place.", "10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer.", "11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care ( ausreichende hygienische Grundversorgung ) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond.", "12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical.", "13. On 22 November 2004 the management rejected the applicant’s accusations.", "14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage:", "“The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.”", "15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards.", "16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure ( Strafprozessordnung - see “Relevant domestic law and practice” below).", "17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05).", "18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows:", "“Vivantes wants to intimidate colleagues!!", "Not with us!", "Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens", "Call for the foundation of a non-party solidarity group”", "The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows:", "“Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...”", "19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint.", "20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal.", "21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet.", "22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers.", "23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request.", "24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005.", "25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly.", "26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure.", "B. Civil proceedings following the applicant’s dismissal without notice", "27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code ( Bürgerliches Gesetzbuch ) or section 1(1) of the Unfair Dismissal Act ( Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home.", "28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal ( Landesarbeitsgericht ), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer.", "29. On 6 June 2007 the Federal Labour Court ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law.", "30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Relevant domestic law and practice", "1. Dismissal of an employee for having lodged a criminal complaint against the employer", "31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results.", "(a) The relevant provisions of the German Civil Code and the Unfair Dismissal Act", "32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” ( wichtiger Grund ). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract.", "33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise.", "(b) Case-law of the Federal Constitutional Court and Federal Labour Court", "34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information.", "35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer.", "2. The Code of Criminal Procedure", "36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings:", "“(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court.", "(2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.”", "B. Relevant international law and practice", "37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles:", "6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;", "6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and", "6.1.3. it should codify relevant issues in the following areas of law:", "6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ...", "6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).", "6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.", "6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.”", "The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010).", "38. Article 24 of the Revised European Social Charter reads as follows:", "“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ...", "a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ...", "The Appendix to Article 24 specifies :", "“3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ...", "c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”", "Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter.", "39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates:", "“The following, inter alia, shall not constitute valid reasons for termination: ...", "(c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”.", "Germany has not ratified ILO Convention No. 158.", "40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "41. The applicant complained that her dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference", "43. The Court observes at the outset that it was not disputed between the parties that the criminal complaint lodged by the applicant had to be regarded as whistle-blowing on the alleged unlawful conduct of the employer, which fell within the ambit of Article 10 of the Convention. It was also common ground between the parties that the resulting dismissal of the applicant and the related decisions of the domestic courts amounted to an interference with the applicant’s right to freedom of expression.", "44. The Court refers in this context to a number of cases involving freedom of expression of civil or public servants in which it has held that Article 10 applied to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Vogt v. Germany, 26 September 1995, § 53, Series A no. 323). It has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).", "45. The Court therefore considers that the applicant’s dismissal, as upheld by the German courts, on account of her criminal complaint against her employer constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "46. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim.", "2. Whether the interference was “prescribed by law” and pursued a legitimate aim", "47. The applicant, while conceding that termination of an employment relationship without notice under Article 626 § 1 of the Civil Code could pursue the legitimate aim of protecting the reputation or rights of others, namely, the business reputation and interests of Vivantes, argued that the said provision did not contain any criteria for a lawful dismissal in the event of whistle-blowing on the part of an employee. The related decisions of the Federal Constitutional Court of 2 July 2001 and the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) did not amount to comprehensive and established case-law in this regard. The conditions for dismissal without notice on the ground that an employee has filed a criminal complaint against his or her employer were not sufficiently foreseeable and the resulting interference with the applicant’s right to freedom of expression had thus not been “prescribed by law” within the meaning of Article 10 § 2.", "48. The Court notes in this connection that Article 626 § 1 of the Civil Code allows the termination of an employment contract with immediate effect by either party if a “compelling reason” renders the continuation of the employment relationship unacceptable to the party giving notice. It further observes that, according to the decision of the domestic courts in the present case as well as the aforementioned leading decisions of the Federal Constitutional Court and the Federal Labour Code referred to by the parties, a criminal complaint against an employer may justify a dismissal under the said provision where it amounts to a “significant breach” of the employee’s duty of loyalty. While the domestic courts have to assess whether such a significant breach of an employee’s duty has occurred in the light of the circumstances of each particular case, the Court considers that it is nevertheless foreseeable for an employee that a criminal complaint against his or her employer may in principle constitute a compelling ground for dismissal without notice under the said provision. The Court reiterates in this context that domestic legislation cannot be expected in any case to provide for every eventuality and the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion “prescribed by law” (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323).", "49. The Court therefore shares the Government’s view that the interference with the applicant’s right to freedom of expression was “prescribed by law”. It further notes that there was no dispute between the parties that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely, the business reputation and interests of Vivantes (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II).", "50. The Court must therefore examine whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued.", "3. Whether the interference was necessary in a democratic society", "(a) The parties’ submissions", "(i) The Government", "51. The Government argued that the interference with the applicant’s right to freedom of expression in the case at hand had been justified under paragraph 2 of Article 10 since her dismissal without notice had been a necessary and proportionate means to protect the reputation and rights of her employer.", "52. In their assessment of the situation the domestic courts had, inter alia, taken into consideration that the applicant had not previously raised internally with her employer her allegation that the documentation in connection with the care provided had been falsified. Neither had she mentioned such a practice nor accused her employer of fraud either in her repeated notifications to the latter pointing out the shortcomings in the services rendered or in the letter sent by her counsel to the Vivantes management on 9 November 2004. The allegations of fraud had been made for the first time in her criminal complaint of 7 December 2004.", "53. The domestic courts had further considered that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the ensuing proceedings. Her complaint had lacked sufficiently concrete information to enable her allegations to be verified and the competent public prosecution authorities had therefore discontinued the preliminary investigations for lack of an initial suspicion ( Anfangsverdacht ). When the public prosecution authorities, following resumption of the preliminary proceedings at the applicant’s request, had questioned the latter as a witness, she had refused to further specify her allegations or to name additional witnesses. The preliminary investigations had thus been discontinued again. In the proceedings before the labour courts relating to her dismissal, the applicant had also failed to substantiate her allegations that staff had been asked to document services that had not actually been rendered. Owing to the blanket nature of the applicant’s allegations and her refusal to further substantiate her accusations, it had been impossible to assess their veracity and the domestic courts had thus not abused their power of discretion when calling into question the authenticity of the applicant’s allegations.", "54. The Government argued, lastly, that when lodging the criminal complaint against her employer the applicant had not acted in good faith and in the public interest with a view to disclosing a criminal offence. Her motive for lodging the criminal complaint had rather been to denounce the alleged shortage of staff and put additional pressure on her employer by involving the public. The applicant had been aware that Vivantes was subject to inspections by the Berlin Inspectorate for Residential Homes as well as to checks by an independent supervisory body, the MDK, and that in view of those checks a criminal complaint about an alleged staff shortage and resulting deficiencies in care was unnecessary. In particular, she could have waited for the MDK to issue a report following its visit carried out on 18 November 2004 before lodging her criminal complaint. The motives behind her actions were also illustrated by the polemical way in which her criminal complaint had been phrased and the fact that following her dismissal she had disseminated flyers in which she complained of the alleged avarice of her employer. Furthermore, her lawyer’s letter of 9 November 2004 announcing to the Vivantes management that a criminal complaint and a “certainly unpleasant public discussion” could be avoided only if the employer took steps to remedy the staff shortages also showed that she intended to put pressure on her employer.", "55. The Government concluded that the domestic courts had examined the circumstances of the instant case and, relying on the aforementioned arguments, had struck a fair balance between the public interest in being informed about shortcomings in the sensitive area of care for the elderly on the one hand, and the protection of the public’s trust in the provision of services in this area as well as the protection of the commercial interests and success of the operating service companies on the other, and had come to the conclusion that the latter prevailed in the present case. They further pointed out that the domestic courts had weighed the applicant’s right to freedom of expression against her duty of loyalty towards her employer, applying criteria that coincided with those established by the Court in the case of Guja ( Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008 ‑ ...). The result of their assessment had thus fallen within the margin of appreciation enjoyed by the States in interfering with the right to freedom of expression.", "(ii) The applicant", "56. The applicant contested the Government’s argument that her criminal complaint had been premature. She maintained that prior to lodging the criminal complaint against Vivantes she had made continuous efforts over a period of over two years to inform the relevant departments within the enterprise of the existing deficiencies. Since all her attempts to draw the management’s attention to the situation had been to no avail, she had been led to assume that further internal complaints would not constitute an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. For that reason she had considered the criminal complaint as a last resort, also with a view to avoiding potential criminal liability herself. This had also been the reason her counsel had written to the Vivantes management on 9 November 2004 informing them of her intention to lodge a criminal complaint.", "57. The applicant further contended that her criminal complaint had not been frivolous or unfounded. In her repeated pleas to Vivantes she had disclosed all the circumstances of the case that had been the foundation of her subsequent criminal complaint, including the fact that staff had been asked to record services which had not actually been rendered in the manner documented. The deficiencies disclosed by her had also been the subject of criticism by the MDK, following its inspections in 2002 and 2003, when it had pointed out that staff shortages were at the origin of the inadequate care. It had been her lawyer who had assessed the facts from a legal point of view when formulating the criminal complaint and qualifying them as constituting the criminal offence of fraud – an assessment that she was not competent to call into question. She had further substantiated her complaint to the extent possible in the subsequent proceedings while being mindful of the risk of incriminating herself and of incurring retaliatory measures by Vivantes in the event that she disclosed further internal information about the enterprise.", "58. The applicant submitted that her motive for filing the complaint had been the potential threat to the health of the particularly vulnerable patients as a result of the unsatisfactory working conditions in the nursing home; the question whether the accompanying documentation had been accurate had been of only secondary significance to her. In her opinion the criminal complaint had not been unnecessary in view of the supervision carried out by the MDK, as pointed out by the Government, and she contested the argument that the true purpose of her complaint had been to put undue pressure on her employer. She argued in this connection that previous complaints by the MDK about the conditions in the nursing home had not brought about any change in working conditions there and therefore, in her opinion, a subsequent visit by the MDK could not have been considered as an effective alternative to remedy the shortcomings. In any event she would neither have had a right to be involved in such an inspection nor to be informed about its outcome.", "59. The applicant further pointed out that her dismissal without notice had been the severest sanction possible and could only be justified in the absence of less severe penalties. With regard to Vivantes, on the other hand, no concrete damage as a consequence of her criminal complaint had been established.", "60. The applicant concluded that her dismissal without notice had not been necessary for the protection of the reputation or rights of Vivantes and had thus been disproportionate. The domestic courts had not struck a fair balance between the considerable public interest in being informed about shortcomings in the care for the elderly provided by a State-owned company on the one hand and the rights of the service provider on the other.", "(iii) The third party", "61. The trade union ver.di provided information on the organisation of institutional care for the elderly in Germany as well as the working conditions of employees in this sector, which were frequently characterised by staff shortages resulting in a heavy workload and overtime for employees. In many nursing homes too many patients were assigned to individual members of staff, who were therefore in a position to provide only basic care. Supervision of nursing homes was mainly carried out by the Medical Review Board of the health insurance fund on the basis of annual inspections. The latter was under no obligation to consult the staff employed in the nursing homes on the occasion of such visits. However, it was the employees who were the first to become aware of unsatisfactory conditions in the care provided. For this reason staff should be provided with effective means to draw attention to shortcomings in the provision of care and should be able to report breaches of the rights of patients without having to fear retaliatory measures by their employer.", "(b) The Court’s assessment", "(i) The general principles applicable in this case", "62. The fundamental principles underlying the assessment of whether an interference with the right to freedom of expression was proportionate are well established in the Court’s case-law and have been summed up as follows (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II) :", "“...", "(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "63. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008 ‑ ...., and Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009).", "64. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Marchenko, cited above, § 45). While such duty of loyalty may be more pronounced in the event of civil servants and employees in the public sector as compared to employees in private-law employment relationships, the Court finds that it doubtlessly also constitutes a feature of the latter category of employment. It therefore shares the Government’s view that the principles and criteria established in the Court’s case-law with a view to weighing an employee’s right to freedom of expression by signalling illegal conduct or wrongdoing on the part of his or her employer against the latter’s right to protection of its reputation and commercial interests also apply in the case at hand. The nature and extent of loyalty owed by an employee in a particular case has an impact on the weighing of the employee’s rights and the conflicting interests of the employer.", "65. Consequently, in the light of this duty of loyalty and discretion, disclosure should be made in the first place to the person’s superior or other competent authority or body. It is only where this is clearly impracticable that the information can, as a last resort, be disclosed to the public. In assessing whether the restriction on freedom of expression was proportionate, the Court must therefore take into account whether the applicant had any other effective means of remedying the wrongdoing which he or she intended to uncover (see Guja, cited above, § 73).", "66. The Court must also have regard to a number of other factors when assessing the proportionality of the interference in relation to the legitimate aim pursued. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates in this regard that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ XIV).", "67. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III).", "68. On the other hand, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76).", "69. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection. It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77).", "70. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49).", "(ii) Application of the above principles in the present case", "(α) The public interest in the disclosed information", "71. Turning to the circumstances of the present case, the Court notes that the information disclosed by the applicant was undeniably of public interest. In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the provision of care on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse. This is even more evident when institutional care is provided by a State-owned company, where the confidence of the public in an adequate provision of vital care services by the State is at stake.", "(β) Whether the applicant had alternative channels for making the disclosure", "72. As regards the availability of alternative channels for making the disclosure and obtaining an internal clarification of the allegations, the Court notes that the applicant not only indicated, on numerous occasions between January 2003 and October 2004, to her superiors that she was overburdened, but also alerted the management to a possible criminal complaint through her counsel by letter of 9 November 2004. While it is true that the legal qualification of the employer’s conduct as aggravated fraud was mentioned for the first time in the criminal complaint of 7 December 2004 drafted by the applicant’s lawyer, the Court observes that the applicant had nevertheless disclosed the factual circumstances on which her subsequent criminal complaint was based – including the fact that services had not been properly documented – in her previous notifications to her employer. It further notes that the criminal complaint requested the public prosecution authorities to examine the circumstances of the case as described in the criminal complaint under all relevant legal aspects and that the latter was thus not necessarily limited to fraud.", "73. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) stating that seeking previous internal clarification of the allegations could not reasonably be expected of an employee if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. The Court further notes that similar reasoning is reflected in the Parliamentary Assembly’s guiding principles on the protection of whistle ‑ blowers (see “Relevant international law and practice” above) stipulating that where internal channels could not reasonably be expected to function properly, external whistle-blowing should be protected.", "74. The Court finds that these considerations also apply in the case at hand. The applicant was of the opinion that none of her previous complaints to her employer had contributed to an amelioration of the employment and care situation in the nursing home. She also indicated to her employer that one of her concerns was that failure to report the deficiencies in the care provided would render her liable to criminal prosecution. The Court therefore considers that it has not been presented with sufficient evidence to counter the applicant’s submission that any further internal complaints would not have constituted an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided.", "75. The Court also notes that German law does not provide for a particular enforcement mechanism for investigating a whistle-blower’s complaint and seeking corrective action from the employer.", "76. In the light of the foregoing, the Court considers that in circumstances such as those in the present case external reporting by means of a criminal complaint was justifiable.", "(γ) The authenticity of the disclosed information", "77. Another factor relevant to the balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if, as in the present case, the person owes a duty of discretion and loyalty to her employer (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Haseldine v. the United Kingdom, no. 18957/91, Commission decision of 13 May 1992, Decisions and Reports (DR) 73, pp. 225 and 231 ).", "78. The Court notes in this context that the Federal Constitutional Court had pointed out in its decision of 1 July 2001 that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right could not, as a rule, justify dismissal without notice unless the employee had knowingly or frivolously reported incorrect information (file No. 1 BvR 2049/00). Indeed the Berlin Labour Court of Appeal found in the case at hand that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the resulting preliminary criminal and labour court proceedings.", "79. However, the Court notes that the deficiencies disclosed by the applicant in her criminal complaint had not only been raised in her previous notifications to her employer but had also been the subject of criticism by the MDK following its inspections in 2002 and 2003 which had led it to point out that staff shortages were at the origin of the inadequate care. The allegations made by the applicant were therefore not devoid of factual background and there is nothing to establish that she had knowingly or frivolously reported incorrect information. The factual information about the deficiencies in care was further supplemented by the applicant in written submissions to the labour courts in the proceedings regarding her dismissal. Furthermore, the Court notes in this connection that, according to the statement of facts in the Labour Court of Appeal’s judgment of 28 March 2006, the applicant had, inter alia, alleged at the court hearing on the same date that she and other staff members had been requested to supplement documentation on care provided even though the documented services had not actually been rendered. She had referred to the testimony of three of her colleagues in that connection.", "80. As far as the ensuing preliminary criminal proceedings are concerned, the Court notes that it is primarily the task of the law-enforcement authorities to investigate the veracity of allegations made in the context of a criminal complaint and that it cannot reasonably be expected from a person having lodged such a complaint in good faith to anticipate whether the investigations will lead to an indictment or will be terminated. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 in which the latter held that an employee who exercised his or her constitutionally guaranteed right to lodge a criminal complaint in good faith could not sustain a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It further observes that the Parliamentary Assembly’s guiding principles are based on similar considerations, stating that a whistle-blower should be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turned out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.", "81. The Court is not convinced by the Government’s argument that the applicant’s failure to further specify her allegations and to name additional witnesses in the course of the criminal investigations against Vivantes called into question the authenticity of her allegations made in the criminal complaint. The Court notes, as has been submitted by the applicant, that such conduct on her part may be explained by a fear of incriminating herself as well as the risk of being subject to retaliatory measures on the part of Vivantes in the event that she disclosed further internal information. In any event, the Court considers that although a lack of evidence may result in the preliminary investigations being discontinued, this does not necessarily mean that the allegations underlying the criminal complaint were without factual basis or frivolous at the outset.", "(δ) Whether the applicant acted in good faith", "82. The Court further notes that the applicant argued that her main motive for lodging the criminal complaint had been the potential threat to the health of the particularly vulnerable patients resulting from the unsatisfactory working conditions in the nursing home, whereas the Government maintained that she had aimed to denounce the alleged staffing shortage and put additional pressure on her employer by involving the public.", "83. On the basis of the materials before it and even assuming that the amelioration of her own working conditions might have been an additional motive for her actions, the Court does not have reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged wrongdoing on the part of her employer to the prosecution authorities and that no other, more discreet means of remedying the situation was available to her.", "84. The Court is not persuaded by the Government’s argument that in view of the regular inspections by the Berlin Inspectorate for Residential Homes as well as those carried out by the MDK, the applicant should have been aware that a criminal complaint was unnecessary and that she could have waited for the MDK to issue its report on its inspection of 18 November 2004 before submitting her criminal complaint. The Court notes in this respect that in the applicant’s experience previous complaints by the MDK about the conditions in the nursing home had not brought about any change and she was therefore of the opinion that a further visit by the MDK could not be considered as an effective alternative by which to remedy the shortcomings and avoid her own criminal liability. Following her numerous previous internal complaints with Vivantes, which had been to no avail, she apparently considered the criminal complaint to be a last resort by which to remedy the deficiencies in the care provided. The Court notes in this context that a report of a subsequent check carried out by the MDK in 2006 points out that deficiencies in care that had already been the subject of its reports in 2002, 2003 and 2004 persisted and required urgent action.", "85. As regards the Government’s submissions that the polemicalformulation of the criminal complaint was evidence that the applicant’s true motive was to denounce and put pressure on her employer, the Court considers that even if the applicant allowed herself a certain degree of exaggeration and generalisation, her allegations were not entirely devoid of factual grounds (see paragraph 79 above) and did not amount to a gratuitous personal attack on her employer but rather constituted a description of the serious shortcomings in the functioning of the nursing home.", "86. This finding is further corroborated by the fact that the applicant – once she had concluded that external reporting was necessary – did not have immediate recourse to the media or the dissemination of flyers in order to attain maximum public attention but chose to first have recourse to the public prosecution authorities with a view to initiating investigations (see, by contrast, Balenovic v. Croatia, (dec.), no. 28369/07, 30 September 2010). She sought the assistance and advice of a lawyer who made a legal assessment of the facts as submitted by the applicant and formulated the criminal complaint accordingly. It was only following her ordinary dismissal on 19 January 2005 that she disseminated flyers in which she complained of the alleged avarice of her employer and made reference to her criminal complaint.", "87. The foregoing considerations are sufficient to enable the Court to conclude that the applicant acted in good faith when submitting her criminal complaint against her employer.", "(ε) The detriment to the employer", "88. On the other hand, the Court also considers that the allegations underlying the applicant’s criminal complaints, in particular those containing allegations of fraud, were certainly prejudicial to Vivante’s business reputation and commercial interests.", "89. It reiterates in this context that there is an interest in protecting the commercial success and viability of companies for the benefit of shareholders and employees, but also for the wider economic good (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). The Court finds it relevant to note in this context that in the case at hand the employer is a State-owned company providing, inter alia, services in the sector of institutional care for the elderly. While the Court accepts that State-owned companies also have an interest in commercial viability, it nevertheless points out that the protection of public confidence in the quality of the provision of vital public service by State-owned or administered companies is decisive for the functioning and economic good of the entire sector. For this reason the public shareholder itself has an interest in investigating and clarifying alleged deficiencies in this respect within the scope of an open public debate.", "90. In the light of these considerations, the Court finds that the public interest in receiving information about shortcomings in the provision of institutional care for the elderly by a State-owned company is so important in a democratic society that it outweighs the interest in protecting the latter’s business reputation and interests.", "(ζ) The severity of the sanction", "91. Lastly, the Court notes that the heaviest sanction possible under labour law was imposed on the applicant. This sanction not only had negative repercussions on the applicant’s career but it could also have a serious chilling effect on other employees of Vivantes and discourage them from reporting any shortcomings in institutional care. Moreover, in view of the media coverage of the applicant’s case, the sanction could have a chilling effect not only on employees of Vivantes but also on other employees in the nursing service sector. This chilling effect works to the detriment of society as a whole and also has to be taken into consideration when assessing the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was entitled to bring the matter at issue to the public’s attention (see Kudeshkina v. Russia, no. 29492/05, § 99, 26 February 2009). This is particularly true in the area of care for the elderly, where the patients are frequently not capable of defending their own rights and where members of the nursing staff will be the first to become aware of unsatisfactory conditions in the care provided and are thus best placed to act in the public interest by alerting the employer or the public at large.", "92. Accordingly, the Court considers that the applicant’s dismissal without notice in the case at hand was disproportionately severe.", "(iii) Conclusion", "93. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the right of employees to report illegal conduct and wrongdoing at their place of work, the duties and responsibilities of employees towards their employers and the right of employers to manage their staff, and having weighed up the other various interests involved in the present case, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not “necessary in a democratic society”.", "94. The Court therefore considers that in the present case the domestic courts failed to strike a fair balance between the need to protect the employer’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other.", "95. There has accordingly been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "96. The applicant further complained that the proceedings before the labour courts regarding her dismissal were unfair. In her opinion, the employer should have been obliged to prove that her criminal complaint had been frivolously based on untruthful allegations and thus constituted a reason for dismissal without notice under Article 626 § 1 of the German Civil Code. The Court of Appeal had, however, shifted the burden of proof in this respect onto the applicant. She relied on Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "97. The Court has repeatedly held that Article 6 does not lay down any rules on the admissibility of evidence or the way it should be assessed. These are therefore primarily matters for regulation by national law and the national courts, which enjoy a wide margin of appreciation (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006). It notes that in the present case, the applicant, who was represented by counsel throughout the proceedings, had the benefit of adversarial proceedings and was at all stages able to submit, and indeed submitted, the arguments she considered relevant to the case. There is nothing to establish that the evaluation of the case by the domestic courts was arbitrary.", "98. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed 38,498.56 euros (EUR) in respect of pecuniary damage and the additional amount of EUR 112,135.19 for future pecuniary damage. As regards pecuniary damage already incurred, the amount of EUR 33,730.12 represented the loss of salary following her dismissal without notice on 9 February 2005. Furthermore, since contributions to the supplementary company pension scheme for incapacity to work ( Betriebsrente für eine volle Erwerbsminderung ) had been discontinued following her dismissal in February 2005, the applicant argued that she had lost a monthly supplementary company pension in the amount of EUR 194.63 to which she would have been entitled as of 1 June 2008. Consequently, at the time of submission of her just satisfaction claims in mid-June 2010, the accrued damage resulting from the loss of such monthly benefits since 1 June 2008 amounted to EUR 4,768.44. She further claimed that she would have been entitled to such monthly benefits until payment of her regular old-age pension as of 30 September 2028, resulting in future pecuniary damage in the amount of EUR 47,861.27 until that date. She argued, lastly, that her monthly old-age pension entitlement as of July 2028 would have amounted to EUR 334,76. Assuming an average life expectancy of 83 years, the loss of her pension entitlement for a period of 16 years (2028 until 2044) thus represented future pecuniary damage in the amount of EUR 64,273.92.", "The applicant further claimed EUR 10,000 in respect of non-pecuniary damage, claiming that the lengthy proceedings before the domestic courts had caused her psychological stress and impaired her health.", "101. The Government contested these claims. As regards the applicant’s claims in respect of pecuniary damage, the Government argued that there was nothing to establish that this damage had been caused by the alleged breach of the Convention which originated in the applicant’s dismissal without notice of 9 February 2005. The Government pointed out that by a letter dated 19 January 2005, that is, prior to the applicant’s dismissal without notice on 9 February 2005, she had already been given notice on account of her repeated illness, with effect from 31 March 2005. For this reason, a loss of income resulting from the dismissal without notice could only be claimed for the period from 9 February until 31 March 2005, the date on which her ordinary dismissal had become effective. However, during that period the applicant had received sickness benefits ( Krankengeld ) followed by a transitional allowance ( Übergangsgeld ) and had not actually suffered any pecuniary damage. The Government further submitted that the applicant’s calculation with respect to her claim for loss of company pension benefits did not demonstrate how that claim could have its origin in an event which post-dated the termination of her employment relationship by ordinary dismissal with effect from 31 March 2005.", "102. As regards non-pecuniary damage, the Government, while leaving the matter to the Court’s discretion, considered the amount claimed by the applicant to be excessive.", "103. The Court notes that it is not disputed between the parties that the applicant’s employment relationship ended as a consequence of her ordinary dismissal with effect from 31 March 2005. It further observes that the applicant herself had submitted that she received sickness benefits or a transitional allowance for the period between 9 February and 31 March 2005, which compensated for her salary. The Court therefore finds that it has not been established that the applicant suffered pecuniary damage during the period from 9 February to 31 March 2005. It further does not discern any causal link between the violation found and the pecuniary damage alleged for the periods after termination of the employment relationship by ordinary dismissal with effect from 31 March 2005. The Court therefore rejects the applicant’s claim in respect of pecuniary damage.", "104. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head.", "B. Costs and expenses", "105. The applicant also claimed EUR 6,100 for the costs and expenses incurred before the Court.", "106. The Government argued that this sum considerably exceeded the amounts usually awarded by the Court in respect of costs and expenses.", "107. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 in respect of costs and expenses for the proceedings before the Court.", "C. Default interest", "108. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed.", "A. The events leading to the applicant’s dismissal", "7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund ( Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff.", "8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking.", "9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place.", "10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer.", "11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care ( ausreichende hygienische Grundversorgung ) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond.", "12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical.", "13. On 22 November 2004 the management rejected the applicant’s accusations.", "14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage:", "“The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.”", "15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards.", "16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure ( Strafprozessordnung - see “Relevant domestic law and practice” below).", "17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05).", "18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows:", "“Vivantes wants to intimidate colleagues!!", "Not with us!", "Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens", "Call for the foundation of a non-party solidarity group”", "The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows:", "“Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...”", "19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint.", "20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal.", "21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet.", "22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers.", "23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request.", "24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005.", "25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly.", "26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure.", "B. Civil proceedings following the applicant’s dismissal without notice", "27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code ( Bürgerliches Gesetzbuch ) or section 1(1) of the Unfair Dismissal Act ( Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home.", "28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal ( Landesarbeitsgericht ), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer.", "29. On 6 June 2007 the Federal Labour Court ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law.", "30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Relevant domestic law and practice", "1. Dismissal of an employee for having lodged a criminal complaint against the employer", "31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results.", "(a) The relevant provisions of the German Civil Code and the Unfair Dismissal Act", "32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” ( wichtiger Grund ). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract.", "33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise.", "(b) Case-law of the Federal Constitutional Court and Federal Labour Court", "34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information.", "35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer.", "2. The Code of Criminal Procedure", "36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings:", "“(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court.", "(2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.”", "B. Relevant international law and practice", "37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles:", "6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;", "6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and", "6.1.3. it should codify relevant issues in the following areas of law:", "6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ...", "6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).", "6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.", "6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.”", "The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010).", "38. Article 24 of the Revised European Social Charter reads as follows:", "“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ...", "a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ...", "The Appendix to Article 24 specifies :", "“3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ...", "c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”", "Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter.", "39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates:", "“The following, inter alia, shall not constitute valid reasons for termination: ...", "(c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”.", "Germany has not ratified ILO Convention No. 158.", "40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "41. The applicant complained that her dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference", "43. The Court observes at the outset that it was not disputed between the parties that the criminal complaint lodged by the applicant had to be regarded as whistle-blowing on the alleged unlawful conduct of the employer, which fell within the ambit of Article 10 of the Convention. It was also common ground between the parties that the resulting dismissal of the applicant and the related decisions of the domestic courts amounted to an interference with the applicant’s right to freedom of expression.", "44. The Court refers in this context to a number of cases involving freedom of expression of civil or public servants in which it has held that Article 10 applied to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Vogt v. Germany, 26 September 1995, § 53, Series A no. 323). It has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).", "45. The Court therefore considers that the applicant’s dismissal, as upheld by the German courts, on account of her criminal complaint against her employer constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "46. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim.", "2. Whether the interference was “prescribed by law” and pursued a legitimate aim", "47. The applicant, while conceding that termination of an employment relationship without notice under Article 626 § 1 of the Civil Code could pursue the legitimate aim of protecting the reputation or rights of others, namely, the business reputation and interests of Vivantes, argued that the said provision did not contain any criteria for a lawful dismissal in the event of whistle-blowing on the part of an employee. The related decisions of the Federal Constitutional Court of 2 July 2001 and the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) did not amount to comprehensive and established case-law in this regard. The conditions for dismissal without notice on the ground that an employee has filed a criminal complaint against his or her employer were not sufficiently foreseeable and the resulting interference with the applicant’s right to freedom of expression had thus not been “prescribed by law” within the meaning of Article 10 § 2.", "48. The Court notes in this connection that Article 626 § 1 of the Civil Code allows the termination of an employment contract with immediate effect by either party if a “compelling reason” renders the continuation of the employment relationship unacceptable to the party giving notice. It further observes that, according to the decision of the domestic courts in the present case as well as the aforementioned leading decisions of the Federal Constitutional Court and the Federal Labour Code referred to by the parties, a criminal complaint against an employer may justify a dismissal under the said provision where it amounts to a “significant breach” of the employee’s duty of loyalty. While the domestic courts have to assess whether such a significant breach of an employee’s duty has occurred in the light of the circumstances of each particular case, the Court considers that it is nevertheless foreseeable for an employee that a criminal complaint against his or her employer may in principle constitute a compelling ground for dismissal without notice under the said provision. The Court reiterates in this context that domestic legislation cannot be expected in any case to provide for every eventuality and the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion “prescribed by law” (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323).", "49. The Court therefore shares the Government’s view that the interference with the applicant’s right to freedom of expression was “prescribed by law”. It further notes that there was no dispute between the parties that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely, the business reputation and interests of Vivantes (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II).", "50. The Court must therefore examine whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued.", "3. Whether the interference was necessary in a democratic society", "(a) The parties’ submissions", "(i) The Government", "51. The Government argued that the interference with the applicant’s right to freedom of expression in the case at hand had been justified under paragraph 2 of Article 10 since her dismissal without notice had been a necessary and proportionate means to protect the reputation and rights of her employer.", "52. In their assessment of the situation the domestic courts had, inter alia, taken into consideration that the applicant had not previously raised internally with her employer her allegation that the documentation in connection with the care provided had been falsified. Neither had she mentioned such a practice nor accused her employer of fraud either in her repeated notifications to the latter pointing out the shortcomings in the services rendered or in the letter sent by her counsel to the Vivantes management on 9 November 2004. The allegations of fraud had been made for the first time in her criminal complaint of 7 December 2004.", "53. The domestic courts had further considered that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the ensuing proceedings. Her complaint had lacked sufficiently concrete information to enable her allegations to be verified and the competent public prosecution authorities had therefore discontinued the preliminary investigations for lack of an initial suspicion ( Anfangsverdacht ). When the public prosecution authorities, following resumption of the preliminary proceedings at the applicant’s request, had questioned the latter as a witness, she had refused to further specify her allegations or to name additional witnesses. The preliminary investigations had thus been discontinued again. In the proceedings before the labour courts relating to her dismissal, the applicant had also failed to substantiate her allegations that staff had been asked to document services that had not actually been rendered. Owing to the blanket nature of the applicant’s allegations and her refusal to further substantiate her accusations, it had been impossible to assess their veracity and the domestic courts had thus not abused their power of discretion when calling into question the authenticity of the applicant’s allegations.", "54. The Government argued, lastly, that when lodging the criminal complaint against her employer the applicant had not acted in good faith and in the public interest with a view to disclosing a criminal offence. Her motive for lodging the criminal complaint had rather been to denounce the alleged shortage of staff and put additional pressure on her employer by involving the public. The applicant had been aware that Vivantes was subject to inspections by the Berlin Inspectorate for Residential Homes as well as to checks by an independent supervisory body, the MDK, and that in view of those checks a criminal complaint about an alleged staff shortage and resulting deficiencies in care was unnecessary. In particular, she could have waited for the MDK to issue a report following its visit carried out on 18 November 2004 before lodging her criminal complaint. The motives behind her actions were also illustrated by the polemical way in which her criminal complaint had been phrased and the fact that following her dismissal she had disseminated flyers in which she complained of the alleged avarice of her employer. Furthermore, her lawyer’s letter of 9 November 2004 announcing to the Vivantes management that a criminal complaint and a “certainly unpleasant public discussion” could be avoided only if the employer took steps to remedy the staff shortages also showed that she intended to put pressure on her employer.", "55. The Government concluded that the domestic courts had examined the circumstances of the instant case and, relying on the aforementioned arguments, had struck a fair balance between the public interest in being informed about shortcomings in the sensitive area of care for the elderly on the one hand, and the protection of the public’s trust in the provision of services in this area as well as the protection of the commercial interests and success of the operating service companies on the other, and had come to the conclusion that the latter prevailed in the present case. They further pointed out that the domestic courts had weighed the applicant’s right to freedom of expression against her duty of loyalty towards her employer, applying criteria that coincided with those established by the Court in the case of Guja ( Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008 ‑ ...). The result of their assessment had thus fallen within the margin of appreciation enjoyed by the States in interfering with the right to freedom of expression.", "(ii) The applicant", "56. The applicant contested the Government’s argument that her criminal complaint had been premature. She maintained that prior to lodging the criminal complaint against Vivantes she had made continuous efforts over a period of over two years to inform the relevant departments within the enterprise of the existing deficiencies. Since all her attempts to draw the management’s attention to the situation had been to no avail, she had been led to assume that further internal complaints would not constitute an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. For that reason she had considered the criminal complaint as a last resort, also with a view to avoiding potential criminal liability herself. This had also been the reason her counsel had written to the Vivantes management on 9 November 2004 informing them of her intention to lodge a criminal complaint.", "57. The applicant further contended that her criminal complaint had not been frivolous or unfounded. In her repeated pleas to Vivantes she had disclosed all the circumstances of the case that had been the foundation of her subsequent criminal complaint, including the fact that staff had been asked to record services which had not actually been rendered in the manner documented. The deficiencies disclosed by her had also been the subject of criticism by the MDK, following its inspections in 2002 and 2003, when it had pointed out that staff shortages were at the origin of the inadequate care. It had been her lawyer who had assessed the facts from a legal point of view when formulating the criminal complaint and qualifying them as constituting the criminal offence of fraud – an assessment that she was not competent to call into question. She had further substantiated her complaint to the extent possible in the subsequent proceedings while being mindful of the risk of incriminating herself and of incurring retaliatory measures by Vivantes in the event that she disclosed further internal information about the enterprise.", "58. The applicant submitted that her motive for filing the complaint had been the potential threat to the health of the particularly vulnerable patients as a result of the unsatisfactory working conditions in the nursing home; the question whether the accompanying documentation had been accurate had been of only secondary significance to her. In her opinion the criminal complaint had not been unnecessary in view of the supervision carried out by the MDK, as pointed out by the Government, and she contested the argument that the true purpose of her complaint had been to put undue pressure on her employer. She argued in this connection that previous complaints by the MDK about the conditions in the nursing home had not brought about any change in working conditions there and therefore, in her opinion, a subsequent visit by the MDK could not have been considered as an effective alternative to remedy the shortcomings. In any event she would neither have had a right to be involved in such an inspection nor to be informed about its outcome.", "59. The applicant further pointed out that her dismissal without notice had been the severest sanction possible and could only be justified in the absence of less severe penalties. With regard to Vivantes, on the other hand, no concrete damage as a consequence of her criminal complaint had been established.", "60. The applicant concluded that her dismissal without notice had not been necessary for the protection of the reputation or rights of Vivantes and had thus been disproportionate. The domestic courts had not struck a fair balance between the considerable public interest in being informed about shortcomings in the care for the elderly provided by a State-owned company on the one hand and the rights of the service provider on the other.", "(iii) The third party", "61. The trade union ver.di provided information on the organisation of institutional care for the elderly in Germany as well as the working conditions of employees in this sector, which were frequently characterised by staff shortages resulting in a heavy workload and overtime for employees. In many nursing homes too many patients were assigned to individual members of staff, who were therefore in a position to provide only basic care. Supervision of nursing homes was mainly carried out by the Medical Review Board of the health insurance fund on the basis of annual inspections. The latter was under no obligation to consult the staff employed in the nursing homes on the occasion of such visits. However, it was the employees who were the first to become aware of unsatisfactory conditions in the care provided. For this reason staff should be provided with effective means to draw attention to shortcomings in the provision of care and should be able to report breaches of the rights of patients without having to fear retaliatory measures by their employer.", "(b) The Court’s assessment", "(i) The general principles applicable in this case", "62. The fundamental principles underlying the assessment of whether an interference with the right to freedom of expression was proportionate are well established in the Court’s case-law and have been summed up as follows (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II) :", "“...", "(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "63. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008 ‑ ...., and Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009).", "64. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Marchenko, cited above, § 45). While such duty of loyalty may be more pronounced in the event of civil servants and employees in the public sector as compared to employees in private-law employment relationships, the Court finds that it doubtlessly also constitutes a feature of the latter category of employment. It therefore shares the Government’s view that the principles and criteria established in the Court’s case-law with a view to weighing an employee’s right to freedom of expression by signalling illegal conduct or wrongdoing on the part of his or her employer against the latter’s right to protection of its reputation and commercial interests also apply in the case at hand. The nature and extent of loyalty owed by an employee in a particular case has an impact on the weighing of the employee’s rights and the conflicting interests of the employer.", "65. Consequently, in the light of this duty of loyalty and discretion, disclosure should be made in the first place to the person’s superior or other competent authority or body. It is only where this is clearly impracticable that the information can, as a last resort, be disclosed to the public. In assessing whether the restriction on freedom of expression was proportionate, the Court must therefore take into account whether the applicant had any other effective means of remedying the wrongdoing which he or she intended to uncover (see Guja, cited above, § 73).", "66. The Court must also have regard to a number of other factors when assessing the proportionality of the interference in relation to the legitimate aim pursued. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates in this regard that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ XIV).", "67. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III).", "68. On the other hand, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76).", "69. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection. It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77).", "70. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49).", "(ii) Application of the above principles in the present case", "(α) The public interest in the disclosed information", "71. Turning to the circumstances of the present case, the Court notes that the information disclosed by the applicant was undeniably of public interest. In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the provision of care on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse. This is even more evident when institutional care is provided by a State-owned company, where the confidence of the public in an adequate provision of vital care services by the State is at stake.", "(β) Whether the applicant had alternative channels for making the disclosure", "72. As regards the availability of alternative channels for making the disclosure and obtaining an internal clarification of the allegations, the Court notes that the applicant not only indicated, on numerous occasions between January 2003 and October 2004, to her superiors that she was overburdened, but also alerted the management to a possible criminal complaint through her counsel by letter of 9 November 2004. While it is true that the legal qualification of the employer’s conduct as aggravated fraud was mentioned for the first time in the criminal complaint of 7 December 2004 drafted by the applicant’s lawyer, the Court observes that the applicant had nevertheless disclosed the factual circumstances on which her subsequent criminal complaint was based – including the fact that services had not been properly documented – in her previous notifications to her employer. It further notes that the criminal complaint requested the public prosecution authorities to examine the circumstances of the case as described in the criminal complaint under all relevant legal aspects and that the latter was thus not necessarily limited to fraud.", "73. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) stating that seeking previous internal clarification of the allegations could not reasonably be expected of an employee if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. The Court further notes that similar reasoning is reflected in the Parliamentary Assembly’s guiding principles on the protection of whistle ‑ blowers (see “Relevant international law and practice” above) stipulating that where internal channels could not reasonably be expected to function properly, external whistle-blowing should be protected.", "74. The Court finds that these considerations also apply in the case at hand. The applicant was of the opinion that none of her previous complaints to her employer had contributed to an amelioration of the employment and care situation in the nursing home. She also indicated to her employer that one of her concerns was that failure to report the deficiencies in the care provided would render her liable to criminal prosecution. The Court therefore considers that it has not been presented with sufficient evidence to counter the applicant’s submission that any further internal complaints would not have constituted an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided.", "75. The Court also notes that German law does not provide for a particular enforcement mechanism for investigating a whistle-blower’s complaint and seeking corrective action from the employer.", "76. In the light of the foregoing, the Court considers that in circumstances such as those in the present case external reporting by means of a criminal complaint was justifiable.", "(γ) The authenticity of the disclosed information", "77. Another factor relevant to the balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if, as in the present case, the person owes a duty of discretion and loyalty to her employer (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Haseldine v. the United Kingdom, no. 18957/91, Commission decision of 13 May 1992, Decisions and Reports (DR) 73, pp. 225 and 231 ).", "78. The Court notes in this context that the Federal Constitutional Court had pointed out in its decision of 1 July 2001 that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right could not, as a rule, justify dismissal without notice unless the employee had knowingly or frivolously reported incorrect information (file No. 1 BvR 2049/00). Indeed the Berlin Labour Court of Appeal found in the case at hand that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the resulting preliminary criminal and labour court proceedings.", "79. However, the Court notes that the deficiencies disclosed by the applicant in her criminal complaint had not only been raised in her previous notifications to her employer but had also been the subject of criticism by the MDK following its inspections in 2002 and 2003 which had led it to point out that staff shortages were at the origin of the inadequate care. The allegations made by the applicant were therefore not devoid of factual background and there is nothing to establish that she had knowingly or frivolously reported incorrect information. The factual information about the deficiencies in care was further supplemented by the applicant in written submissions to the labour courts in the proceedings regarding her dismissal. Furthermore, the Court notes in this connection that, according to the statement of facts in the Labour Court of Appeal’s judgment of 28 March 2006, the applicant had, inter alia, alleged at the court hearing on the same date that she and other staff members had been requested to supplement documentation on care provided even though the documented services had not actually been rendered. She had referred to the testimony of three of her colleagues in that connection.", "80. As far as the ensuing preliminary criminal proceedings are concerned, the Court notes that it is primarily the task of the law-enforcement authorities to investigate the veracity of allegations made in the context of a criminal complaint and that it cannot reasonably be expected from a person having lodged such a complaint in good faith to anticipate whether the investigations will lead to an indictment or will be terminated. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 in which the latter held that an employee who exercised his or her constitutionally guaranteed right to lodge a criminal complaint in good faith could not sustain a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It further observes that the Parliamentary Assembly’s guiding principles are based on similar considerations, stating that a whistle-blower should be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turned out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.", "81. The Court is not convinced by the Government’s argument that the applicant’s failure to further specify her allegations and to name additional witnesses in the course of the criminal investigations against Vivantes called into question the authenticity of her allegations made in the criminal complaint. The Court notes, as has been submitted by the applicant, that such conduct on her part may be explained by a fear of incriminating herself as well as the risk of being subject to retaliatory measures on the part of Vivantes in the event that she disclosed further internal information. In any event, the Court considers that although a lack of evidence may result in the preliminary investigations being discontinued, this does not necessarily mean that the allegations underlying the criminal complaint were without factual basis or frivolous at the outset.", "(δ) Whether the applicant acted in good faith", "82. The Court further notes that the applicant argued that her main motive for lodging the criminal complaint had been the potential threat to the health of the particularly vulnerable patients resulting from the unsatisfactory working conditions in the nursing home, whereas the Government maintained that she had aimed to denounce the alleged staffing shortage and put additional pressure on her employer by involving the public.", "83. On the basis of the materials before it and even assuming that the amelioration of her own working conditions might have been an additional motive for her actions, the Court does not have reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged wrongdoing on the part of her employer to the prosecution authorities and that no other, more discreet means of remedying the situation was available to her.", "84. The Court is not persuaded by the Government’s argument that in view of the regular inspections by the Berlin Inspectorate for Residential Homes as well as those carried out by the MDK, the applicant should have been aware that a criminal complaint was unnecessary and that she could have waited for the MDK to issue its report on its inspection of 18 November 2004 before submitting her criminal complaint. The Court notes in this respect that in the applicant’s experience previous complaints by the MDK about the conditions in the nursing home had not brought about any change and she was therefore of the opinion that a further visit by the MDK could not be considered as an effective alternative by which to remedy the shortcomings and avoid her own criminal liability. Following her numerous previous internal complaints with Vivantes, which had been to no avail, she apparently considered the criminal complaint to be a last resort by which to remedy the deficiencies in the care provided. The Court notes in this context that a report of a subsequent check carried out by the MDK in 2006 points out that deficiencies in care that had already been the subject of its reports in 2002, 2003 and 2004 persisted and required urgent action.", "85. As regards the Government’s submissions that the polemicalformulation of the criminal complaint was evidence that the applicant’s true motive was to denounce and put pressure on her employer, the Court considers that even if the applicant allowed herself a certain degree of exaggeration and generalisation, her allegations were not entirely devoid of factual grounds (see paragraph 79 above) and did not amount to a gratuitous personal attack on her employer but rather constituted a description of the serious shortcomings in the functioning of the nursing home.", "86. This finding is further corroborated by the fact that the applicant – once she had concluded that external reporting was necessary – did not have immediate recourse to the media or the dissemination of flyers in order to attain maximum public attention but chose to first have recourse to the public prosecution authorities with a view to initiating investigations (see, by contrast, Balenovic v. Croatia, (dec.), no. 28369/07, 30 September 2010). She sought the assistance and advice of a lawyer who made a legal assessment of the facts as submitted by the applicant and formulated the criminal complaint accordingly. It was only following her ordinary dismissal on 19 January 2005 that she disseminated flyers in which she complained of the alleged avarice of her employer and made reference to her criminal complaint.", "87. The foregoing considerations are sufficient to enable the Court to conclude that the applicant acted in good faith when submitting her criminal complaint against her employer.", "(ε) The detriment to the employer", "88. On the other hand, the Court also considers that the allegations underlying the applicant’s criminal complaints, in particular those containing allegations of fraud, were certainly prejudicial to Vivante’s business reputation and commercial interests.", "89. It reiterates in this context that there is an interest in protecting the commercial success and viability of companies for the benefit of shareholders and employees, but also for the wider economic good (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). The Court finds it relevant to note in this context that in the case at hand the employer is a State-owned company providing, inter alia, services in the sector of institutional care for the elderly. While the Court accepts that State-owned companies also have an interest in commercial viability, it nevertheless points out that the protection of public confidence in the quality of the provision of vital public service by State-owned or administered companies is decisive for the functioning and economic good of the entire sector. For this reason the public shareholder itself has an interest in investigating and clarifying alleged deficiencies in this respect within the scope of an open public debate.", "90. In the light of these considerations, the Court finds that the public interest in receiving information about shortcomings in the provision of institutional care for the elderly by a State-owned company is so important in a democratic society that it outweighs the interest in protecting the latter’s business reputation and interests.", "(ζ) The severity of the sanction", "91. Lastly, the Court notes that the heaviest sanction possible under labour law was imposed on the applicant. This sanction not only had negative repercussions on the applicant’s career but it could also have a serious chilling effect on other employees of Vivantes and discourage them from reporting any shortcomings in institutional care. Moreover, in view of the media coverage of the applicant’s case, the sanction could have a chilling effect not only on employees of Vivantes but also on other employees in the nursing service sector. This chilling effect works to the detriment of society as a whole and also has to be taken into consideration when assessing the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was entitled to bring the matter at issue to the public’s attention (see Kudeshkina v. Russia, no. 29492/05, § 99, 26 February 2009). This is particularly true in the area of care for the elderly, where the patients are frequently not capable of defending their own rights and where members of the nursing staff will be the first to become aware of unsatisfactory conditions in the care provided and are thus best placed to act in the public interest by alerting the employer or the public at large.", "92. Accordingly, the Court considers that the applicant’s dismissal without notice in the case at hand was disproportionately severe.", "(iii) Conclusion", "93. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the right of employees to report illegal conduct and wrongdoing at their place of work, the duties and responsibilities of employees towards their employers and the right of employers to manage their staff, and having weighed up the other various interests involved in the present case, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not “necessary in a democratic society”.", "94. The Court therefore considers that in the present case the domestic courts failed to strike a fair balance between the need to protect the employer’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other.", "95. There has accordingly been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "96. The applicant further complained that the proceedings before the labour courts regarding her dismissal were unfair. In her opinion, the employer should have been obliged to prove that her criminal complaint had been frivolously based on untruthful allegations and thus constituted a reason for dismissal without notice under Article 626 § 1 of the German Civil Code. The Court of Appeal had, however, shifted the burden of proof in this respect onto the applicant. She relied on Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "97. The Court has repeatedly held that Article 6 does not lay down any rules on the admissibility of evidence or the way it should be assessed. These are therefore primarily matters for regulation by national law and the national courts, which enjoy a wide margin of appreciation (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006). It notes that in the present case, the applicant, who was represented by counsel throughout the proceedings, had the benefit of adversarial proceedings and was at all stages able to submit, and indeed submitted, the arguments she considered relevant to the case. There is nothing to establish that the evaluation of the case by the domestic courts was arbitrary.", "98. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed 38,498.56 euros (EUR) in respect of pecuniary damage and the additional amount of EUR 112,135.19 for future pecuniary damage. As regards pecuniary damage already incurred, the amount of EUR 33,730.12 represented the loss of salary following her dismissal without notice on 9 February 2005. Furthermore, since contributions to the supplementary company pension scheme for incapacity to work ( Betriebsrente für eine volle Erwerbsminderung ) had been discontinued following her dismissal in February 2005, the applicant argued that she had lost a monthly supplementary company pension in the amount of EUR 194.63 to which she would have been entitled as of 1 June 2008. Consequently, at the time of submission of her just satisfaction claims in mid-June 2010, the accrued damage resulting from the loss of such monthly benefits since 1 June 2008 amounted to EUR 4,768.44. She further claimed that she would have been entitled to such monthly benefits until payment of her regular old-age pension as of 30 September 2028, resulting in future pecuniary damage in the amount of EUR 47,861.27 until that date. She argued, lastly, that her monthly old-age pension entitlement as of July 2028 would have amounted to EUR 334,76. Assuming an average life expectancy of 83 years, the loss of her pension entitlement for a period of 16 years (2028 until 2044) thus represented future pecuniary damage in the amount of EUR 64,273.92.", "The applicant further claimed EUR 10,000 in respect of non-pecuniary damage, claiming that the lengthy proceedings before the domestic courts had caused her psychological stress and impaired her health.", "101. The Government contested these claims. As regards the applicant’s claims in respect of pecuniary damage, the Government argued that there was nothing to establish that this damage had been caused by the alleged breach of the Convention which originated in the applicant’s dismissal without notice of 9 February 2005. The Government pointed out that by a letter dated 19 January 2005, that is, prior to the applicant’s dismissal without notice on 9 February 2005, she had already been given notice on account of her repeated illness, with effect from 31 March 2005. For this reason, a loss of income resulting from the dismissal without notice could only be claimed for the period from 9 February until 31 March 2005, the date on which her ordinary dismissal had become effective. However, during that period the applicant had received sickness benefits ( Krankengeld ) followed by a transitional allowance ( Übergangsgeld ) and had not actually suffered any pecuniary damage. The Government further submitted that the applicant’s calculation with respect to her claim for loss of company pension benefits did not demonstrate how that claim could have its origin in an event which post-dated the termination of her employment relationship by ordinary dismissal with effect from 31 March 2005.", "102. As regards non-pecuniary damage, the Government, while leaving the matter to the Court’s discretion, considered the amount claimed by the applicant to be excessive.", "103. The Court notes that it is not disputed between the parties that the applicant’s employment relationship ended as a consequence of her ordinary dismissal with effect from 31 March 2005. It further observes that the applicant herself had submitted that she received sickness benefits or a transitional allowance for the period between 9 February and 31 March 2005, which compensated for her salary. The Court therefore finds that it has not been established that the applicant suffered pecuniary damage during the period from 9 February to 31 March 2005. It further does not discern any causal link between the violation found and the pecuniary damage alleged for the periods after termination of the employment relationship by ordinary dismissal with effect from 31 March 2005. The Court therefore rejects the applicant’s claim in respect of pecuniary damage.", "104. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head.", "B. Costs and expenses", "105. The applicant also claimed EUR 6,100 for the costs and expenses incurred before the Court.", "106. The Government argued that this sum considerably exceeded the amounts usually awarded by the Court in respect of costs and expenses.", "107. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 in respect of costs and expenses for the proceedings before the Court.", "C. Default interest", "108. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed.", "A. The events leading to the applicant’s dismissal", "7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund ( Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff.", "8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking.", "9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place.", "10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer.", "11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care ( ausreichende hygienische Grundversorgung ) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond.", "12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical.", "13. On 22 November 2004 the management rejected the applicant’s accusations.", "14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage:", "“The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.”", "15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards.", "16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure ( Strafprozessordnung - see “Relevant domestic law and practice” below).", "17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05).", "18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows:", "“Vivantes wants to intimidate colleagues!!", "Not with us!", "Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens", "Call for the foundation of a non-party solidarity group”", "The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows:", "“Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...”", "19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint.", "20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal.", "21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet.", "22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers.", "23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request.", "24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005.", "25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly.", "26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure.", "B. Civil proceedings following the applicant’s dismissal without notice", "27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code ( Bürgerliches Gesetzbuch ) or section 1(1) of the Unfair Dismissal Act ( Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home.", "28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal ( Landesarbeitsgericht ), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer.", "29. On 6 June 2007 the Federal Labour Court ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law.", "30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Relevant domestic law and practice", "1. Dismissal of an employee for having lodged a criminal complaint against the employer", "31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results.", "(a) The relevant provisions of the German Civil Code and the Unfair Dismissal Act", "32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” ( wichtiger Grund ). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract.", "33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise.", "(b) Case-law of the Federal Constitutional Court and Federal Labour Court", "34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information.", "35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer.", "2. The Code of Criminal Procedure", "36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings:", "“(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court.", "(2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.”", "B. Relevant international law and practice", "37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles:", "6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;", "6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and", "6.1.3. it should codify relevant issues in the following areas of law:", "6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ...", "6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).", "6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.", "6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.”", "The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010).", "38. Article 24 of the Revised European Social Charter reads as follows:", "“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ...", "a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ...", "The Appendix to Article 24 specifies :", "“3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ...", "c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”", "Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter.", "39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates:", "“The following, inter alia, shall not constitute valid reasons for termination: ...", "(c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”.", "Germany has not ratified ILO Convention No. 158.", "40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "41. The applicant complained that her dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference", "43. The Court observes at the outset that it was not disputed between the parties that the criminal complaint lodged by the applicant had to be regarded as whistle-blowing on the alleged unlawful conduct of the employer, which fell within the ambit of Article 10 of the Convention. It was also common ground between the parties that the resulting dismissal of the applicant and the related decisions of the domestic courts amounted to an interference with the applicant’s right to freedom of expression.", "44. The Court refers in this context to a number of cases involving freedom of expression of civil or public servants in which it has held that Article 10 applied to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Vogt v. Germany, 26 September 1995, § 53, Series A no. 323). It has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).", "45. The Court therefore considers that the applicant’s dismissal, as upheld by the German courts, on account of her criminal complaint against her employer constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "46. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim.", "2. Whether the interference was “prescribed by law” and pursued a legitimate aim", "47. The applicant, while conceding that termination of an employment relationship without notice under Article 626 § 1 of the Civil Code could pursue the legitimate aim of protecting the reputation or rights of others, namely, the business reputation and interests of Vivantes, argued that the said provision did not contain any criteria for a lawful dismissal in the event of whistle-blowing on the part of an employee. The related decisions of the Federal Constitutional Court of 2 July 2001 and the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) did not amount to comprehensive and established case-law in this regard. The conditions for dismissal without notice on the ground that an employee has filed a criminal complaint against his or her employer were not sufficiently foreseeable and the resulting interference with the applicant’s right to freedom of expression had thus not been “prescribed by law” within the meaning of Article 10 § 2.", "48. The Court notes in this connection that Article 626 § 1 of the Civil Code allows the termination of an employment contract with immediate effect by either party if a “compelling reason” renders the continuation of the employment relationship unacceptable to the party giving notice. It further observes that, according to the decision of the domestic courts in the present case as well as the aforementioned leading decisions of the Federal Constitutional Court and the Federal Labour Code referred to by the parties, a criminal complaint against an employer may justify a dismissal under the said provision where it amounts to a “significant breach” of the employee’s duty of loyalty. While the domestic courts have to assess whether such a significant breach of an employee’s duty has occurred in the light of the circumstances of each particular case, the Court considers that it is nevertheless foreseeable for an employee that a criminal complaint against his or her employer may in principle constitute a compelling ground for dismissal without notice under the said provision. The Court reiterates in this context that domestic legislation cannot be expected in any case to provide for every eventuality and the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion “prescribed by law” (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323).", "49. The Court therefore shares the Government’s view that the interference with the applicant’s right to freedom of expression was “prescribed by law”. It further notes that there was no dispute between the parties that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely, the business reputation and interests of Vivantes (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II).", "50. The Court must therefore examine whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued.", "3. Whether the interference was necessary in a democratic society", "(a) The parties’ submissions", "(i) The Government", "51. The Government argued that the interference with the applicant’s right to freedom of expression in the case at hand had been justified under paragraph 2 of Article 10 since her dismissal without notice had been a necessary and proportionate means to protect the reputation and rights of her employer.", "52. In their assessment of the situation the domestic courts had, inter alia, taken into consideration that the applicant had not previously raised internally with her employer her allegation that the documentation in connection with the care provided had been falsified. Neither had she mentioned such a practice nor accused her employer of fraud either in her repeated notifications to the latter pointing out the shortcomings in the services rendered or in the letter sent by her counsel to the Vivantes management on 9 November 2004. The allegations of fraud had been made for the first time in her criminal complaint of 7 December 2004.", "53. The domestic courts had further considered that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the ensuing proceedings. Her complaint had lacked sufficiently concrete information to enable her allegations to be verified and the competent public prosecution authorities had therefore discontinued the preliminary investigations for lack of an initial suspicion ( Anfangsverdacht ). When the public prosecution authorities, following resumption of the preliminary proceedings at the applicant’s request, had questioned the latter as a witness, she had refused to further specify her allegations or to name additional witnesses. The preliminary investigations had thus been discontinued again. In the proceedings before the labour courts relating to her dismissal, the applicant had also failed to substantiate her allegations that staff had been asked to document services that had not actually been rendered. Owing to the blanket nature of the applicant’s allegations and her refusal to further substantiate her accusations, it had been impossible to assess their veracity and the domestic courts had thus not abused their power of discretion when calling into question the authenticity of the applicant’s allegations.", "54. The Government argued, lastly, that when lodging the criminal complaint against her employer the applicant had not acted in good faith and in the public interest with a view to disclosing a criminal offence. Her motive for lodging the criminal complaint had rather been to denounce the alleged shortage of staff and put additional pressure on her employer by involving the public. The applicant had been aware that Vivantes was subject to inspections by the Berlin Inspectorate for Residential Homes as well as to checks by an independent supervisory body, the MDK, and that in view of those checks a criminal complaint about an alleged staff shortage and resulting deficiencies in care was unnecessary. In particular, she could have waited for the MDK to issue a report following its visit carried out on 18 November 2004 before lodging her criminal complaint. The motives behind her actions were also illustrated by the polemical way in which her criminal complaint had been phrased and the fact that following her dismissal she had disseminated flyers in which she complained of the alleged avarice of her employer. Furthermore, her lawyer’s letter of 9 November 2004 announcing to the Vivantes management that a criminal complaint and a “certainly unpleasant public discussion” could be avoided only if the employer took steps to remedy the staff shortages also showed that she intended to put pressure on her employer.", "55. The Government concluded that the domestic courts had examined the circumstances of the instant case and, relying on the aforementioned arguments, had struck a fair balance between the public interest in being informed about shortcomings in the sensitive area of care for the elderly on the one hand, and the protection of the public’s trust in the provision of services in this area as well as the protection of the commercial interests and success of the operating service companies on the other, and had come to the conclusion that the latter prevailed in the present case. They further pointed out that the domestic courts had weighed the applicant’s right to freedom of expression against her duty of loyalty towards her employer, applying criteria that coincided with those established by the Court in the case of Guja ( Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008 ‑ ...). The result of their assessment had thus fallen within the margin of appreciation enjoyed by the States in interfering with the right to freedom of expression.", "(ii) The applicant", "56. The applicant contested the Government’s argument that her criminal complaint had been premature. She maintained that prior to lodging the criminal complaint against Vivantes she had made continuous efforts over a period of over two years to inform the relevant departments within the enterprise of the existing deficiencies. Since all her attempts to draw the management’s attention to the situation had been to no avail, she had been led to assume that further internal complaints would not constitute an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. For that reason she had considered the criminal complaint as a last resort, also with a view to avoiding potential criminal liability herself. This had also been the reason her counsel had written to the Vivantes management on 9 November 2004 informing them of her intention to lodge a criminal complaint.", "57. The applicant further contended that her criminal complaint had not been frivolous or unfounded. In her repeated pleas to Vivantes she had disclosed all the circumstances of the case that had been the foundation of her subsequent criminal complaint, including the fact that staff had been asked to record services which had not actually been rendered in the manner documented. The deficiencies disclosed by her had also been the subject of criticism by the MDK, following its inspections in 2002 and 2003, when it had pointed out that staff shortages were at the origin of the inadequate care. It had been her lawyer who had assessed the facts from a legal point of view when formulating the criminal complaint and qualifying them as constituting the criminal offence of fraud – an assessment that she was not competent to call into question. She had further substantiated her complaint to the extent possible in the subsequent proceedings while being mindful of the risk of incriminating herself and of incurring retaliatory measures by Vivantes in the event that she disclosed further internal information about the enterprise.", "58. The applicant submitted that her motive for filing the complaint had been the potential threat to the health of the particularly vulnerable patients as a result of the unsatisfactory working conditions in the nursing home; the question whether the accompanying documentation had been accurate had been of only secondary significance to her. In her opinion the criminal complaint had not been unnecessary in view of the supervision carried out by the MDK, as pointed out by the Government, and she contested the argument that the true purpose of her complaint had been to put undue pressure on her employer. She argued in this connection that previous complaints by the MDK about the conditions in the nursing home had not brought about any change in working conditions there and therefore, in her opinion, a subsequent visit by the MDK could not have been considered as an effective alternative to remedy the shortcomings. In any event she would neither have had a right to be involved in such an inspection nor to be informed about its outcome.", "59. The applicant further pointed out that her dismissal without notice had been the severest sanction possible and could only be justified in the absence of less severe penalties. With regard to Vivantes, on the other hand, no concrete damage as a consequence of her criminal complaint had been established.", "60. The applicant concluded that her dismissal without notice had not been necessary for the protection of the reputation or rights of Vivantes and had thus been disproportionate. The domestic courts had not struck a fair balance between the considerable public interest in being informed about shortcomings in the care for the elderly provided by a State-owned company on the one hand and the rights of the service provider on the other.", "(iii) The third party", "61. The trade union ver.di provided information on the organisation of institutional care for the elderly in Germany as well as the working conditions of employees in this sector, which were frequently characterised by staff shortages resulting in a heavy workload and overtime for employees. In many nursing homes too many patients were assigned to individual members of staff, who were therefore in a position to provide only basic care. Supervision of nursing homes was mainly carried out by the Medical Review Board of the health insurance fund on the basis of annual inspections. The latter was under no obligation to consult the staff employed in the nursing homes on the occasion of such visits. However, it was the employees who were the first to become aware of unsatisfactory conditions in the care provided. For this reason staff should be provided with effective means to draw attention to shortcomings in the provision of care and should be able to report breaches of the rights of patients without having to fear retaliatory measures by their employer.", "(b) The Court’s assessment", "(i) The general principles applicable in this case", "62. The fundamental principles underlying the assessment of whether an interference with the right to freedom of expression was proportionate are well established in the Court’s case-law and have been summed up as follows (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II) :", "“...", "(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "63. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008 ‑ ...., and Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009).", "64. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Marchenko, cited above, § 45). While such duty of loyalty may be more pronounced in the event of civil servants and employees in the public sector as compared to employees in private-law employment relationships, the Court finds that it doubtlessly also constitutes a feature of the latter category of employment. It therefore shares the Government’s view that the principles and criteria established in the Court’s case-law with a view to weighing an employee’s right to freedom of expression by signalling illegal conduct or wrongdoing on the part of his or her employer against the latter’s right to protection of its reputation and commercial interests also apply in the case at hand. The nature and extent of loyalty owed by an employee in a particular case has an impact on the weighing of the employee’s rights and the conflicting interests of the employer.", "65. Consequently, in the light of this duty of loyalty and discretion, disclosure should be made in the first place to the person’s superior or other competent authority or body. It is only where this is clearly impracticable that the information can, as a last resort, be disclosed to the public. In assessing whether the restriction on freedom of expression was proportionate, the Court must therefore take into account whether the applicant had any other effective means of remedying the wrongdoing which he or she intended to uncover (see Guja, cited above, § 73).", "66. The Court must also have regard to a number of other factors when assessing the proportionality of the interference in relation to the legitimate aim pursued. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates in this regard that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ XIV).", "67. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III).", "68. On the other hand, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76).", "69. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection. It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77).", "70. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49).", "(ii) Application of the above principles in the present case", "(α) The public interest in the disclosed information", "71. Turning to the circumstances of the present case, the Court notes that the information disclosed by the applicant was undeniably of public interest. In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the provision of care on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse. This is even more evident when institutional care is provided by a State-owned company, where the confidence of the public in an adequate provision of vital care services by the State is at stake.", "(β) Whether the applicant had alternative channels for making the disclosure", "72. As regards the availability of alternative channels for making the disclosure and obtaining an internal clarification of the allegations, the Court notes that the applicant not only indicated, on numerous occasions between January 2003 and October 2004, to her superiors that she was overburdened, but also alerted the management to a possible criminal complaint through her counsel by letter of 9 November 2004. While it is true that the legal qualification of the employer’s conduct as aggravated fraud was mentioned for the first time in the criminal complaint of 7 December 2004 drafted by the applicant’s lawyer, the Court observes that the applicant had nevertheless disclosed the factual circumstances on which her subsequent criminal complaint was based – including the fact that services had not been properly documented – in her previous notifications to her employer. It further notes that the criminal complaint requested the public prosecution authorities to examine the circumstances of the case as described in the criminal complaint under all relevant legal aspects and that the latter was thus not necessarily limited to fraud.", "73. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) stating that seeking previous internal clarification of the allegations could not reasonably be expected of an employee if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. The Court further notes that similar reasoning is reflected in the Parliamentary Assembly’s guiding principles on the protection of whistle ‑ blowers (see “Relevant international law and practice” above) stipulating that where internal channels could not reasonably be expected to function properly, external whistle-blowing should be protected.", "74. The Court finds that these considerations also apply in the case at hand. The applicant was of the opinion that none of her previous complaints to her employer had contributed to an amelioration of the employment and care situation in the nursing home. She also indicated to her employer that one of her concerns was that failure to report the deficiencies in the care provided would render her liable to criminal prosecution. The Court therefore considers that it has not been presented with sufficient evidence to counter the applicant’s submission that any further internal complaints would not have constituted an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided.", "75. The Court also notes that German law does not provide for a particular enforcement mechanism for investigating a whistle-blower’s complaint and seeking corrective action from the employer.", "76. In the light of the foregoing, the Court considers that in circumstances such as those in the present case external reporting by means of a criminal complaint was justifiable.", "(γ) The authenticity of the disclosed information", "77. Another factor relevant to the balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if, as in the present case, the person owes a duty of discretion and loyalty to her employer (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Haseldine v. the United Kingdom, no. 18957/91, Commission decision of 13 May 1992, Decisions and Reports (DR) 73, pp. 225 and 231 ).", "78. The Court notes in this context that the Federal Constitutional Court had pointed out in its decision of 1 July 2001 that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right could not, as a rule, justify dismissal without notice unless the employee had knowingly or frivolously reported incorrect information (file No. 1 BvR 2049/00). Indeed the Berlin Labour Court of Appeal found in the case at hand that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the resulting preliminary criminal and labour court proceedings.", "79. However, the Court notes that the deficiencies disclosed by the applicant in her criminal complaint had not only been raised in her previous notifications to her employer but had also been the subject of criticism by the MDK following its inspections in 2002 and 2003 which had led it to point out that staff shortages were at the origin of the inadequate care. The allegations made by the applicant were therefore not devoid of factual background and there is nothing to establish that she had knowingly or frivolously reported incorrect information. The factual information about the deficiencies in care was further supplemented by the applicant in written submissions to the labour courts in the proceedings regarding her dismissal. Furthermore, the Court notes in this connection that, according to the statement of facts in the Labour Court of Appeal’s judgment of 28 March 2006, the applicant had, inter alia, alleged at the court hearing on the same date that she and other staff members had been requested to supplement documentation on care provided even though the documented services had not actually been rendered. She had referred to the testimony of three of her colleagues in that connection.", "80. As far as the ensuing preliminary criminal proceedings are concerned, the Court notes that it is primarily the task of the law-enforcement authorities to investigate the veracity of allegations made in the context of a criminal complaint and that it cannot reasonably be expected from a person having lodged such a complaint in good faith to anticipate whether the investigations will lead to an indictment or will be terminated. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 in which the latter held that an employee who exercised his or her constitutionally guaranteed right to lodge a criminal complaint in good faith could not sustain a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It further observes that the Parliamentary Assembly’s guiding principles are based on similar considerations, stating that a whistle-blower should be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turned out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.", "81. The Court is not convinced by the Government’s argument that the applicant’s failure to further specify her allegations and to name additional witnesses in the course of the criminal investigations against Vivantes called into question the authenticity of her allegations made in the criminal complaint. The Court notes, as has been submitted by the applicant, that such conduct on her part may be explained by a fear of incriminating herself as well as the risk of being subject to retaliatory measures on the part of Vivantes in the event that she disclosed further internal information. In any event, the Court considers that although a lack of evidence may result in the preliminary investigations being discontinued, this does not necessarily mean that the allegations underlying the criminal complaint were without factual basis or frivolous at the outset.", "(δ) Whether the applicant acted in good faith", "82. The Court further notes that the applicant argued that her main motive for lodging the criminal complaint had been the potential threat to the health of the particularly vulnerable patients resulting from the unsatisfactory working conditions in the nursing home, whereas the Government maintained that she had aimed to denounce the alleged staffing shortage and put additional pressure on her employer by involving the public.", "83. On the basis of the materials before it and even assuming that the amelioration of her own working conditions might have been an additional motive for her actions, the Court does not have reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged wrongdoing on the part of her employer to the prosecution authorities and that no other, more discreet means of remedying the situation was available to her.", "84. The Court is not persuaded by the Government’s argument that in view of the regular inspections by the Berlin Inspectorate for Residential Homes as well as those carried out by the MDK, the applicant should have been aware that a criminal complaint was unnecessary and that she could have waited for the MDK to issue its report on its inspection of 18 November 2004 before submitting her criminal complaint. The Court notes in this respect that in the applicant’s experience previous complaints by the MDK about the conditions in the nursing home had not brought about any change and she was therefore of the opinion that a further visit by the MDK could not be considered as an effective alternative by which to remedy the shortcomings and avoid her own criminal liability. Following her numerous previous internal complaints with Vivantes, which had been to no avail, she apparently considered the criminal complaint to be a last resort by which to remedy the deficiencies in the care provided. The Court notes in this context that a report of a subsequent check carried out by the MDK in 2006 points out that deficiencies in care that had already been the subject of its reports in 2002, 2003 and 2004 persisted and required urgent action.", "85. As regards the Government’s submissions that the polemicalformulation of the criminal complaint was evidence that the applicant’s true motive was to denounce and put pressure on her employer, the Court considers that even if the applicant allowed herself a certain degree of exaggeration and generalisation, her allegations were not entirely devoid of factual grounds (see paragraph 79 above) and did not amount to a gratuitous personal attack on her employer but rather constituted a description of the serious shortcomings in the functioning of the nursing home.", "86. This finding is further corroborated by the fact that the applicant – once she had concluded that external reporting was necessary – did not have immediate recourse to the media or the dissemination of flyers in order to attain maximum public attention but chose to first have recourse to the public prosecution authorities with a view to initiating investigations (see, by contrast, Balenovic v. Croatia, (dec.), no. 28369/07, 30 September 2010). She sought the assistance and advice of a lawyer who made a legal assessment of the facts as submitted by the applicant and formulated the criminal complaint accordingly. It was only following her ordinary dismissal on 19 January 2005 that she disseminated flyers in which she complained of the alleged avarice of her employer and made reference to her criminal complaint.", "87. The foregoing considerations are sufficient to enable the Court to conclude that the applicant acted in good faith when submitting her criminal complaint against her employer.", "(ε) The detriment to the employer", "88. On the other hand, the Court also considers that the allegations underlying the applicant’s criminal complaints, in particular those containing allegations of fraud, were certainly prejudicial to Vivante’s business reputation and commercial interests.", "89. It reiterates in this context that there is an interest in protecting the commercial success and viability of companies for the benefit of shareholders and employees, but also for the wider economic good (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). The Court finds it relevant to note in this context that in the case at hand the employer is a State-owned company providing, inter alia, services in the sector of institutional care for the elderly. While the Court accepts that State-owned companies also have an interest in commercial viability, it nevertheless points out that the protection of public confidence in the quality of the provision of vital public service by State-owned or administered companies is decisive for the functioning and economic good of the entire sector. For this reason the public shareholder itself has an interest in investigating and clarifying alleged deficiencies in this respect within the scope of an open public debate.", "90. In the light of these considerations, the Court finds that the public interest in receiving information about shortcomings in the provision of institutional care for the elderly by a State-owned company is so important in a democratic society that it outweighs the interest in protecting the latter’s business reputation and interests.", "(ζ) The severity of the sanction", "91. Lastly, the Court notes that the heaviest sanction possible under labour law was imposed on the applicant. This sanction not only had negative repercussions on the applicant’s career but it could also have a serious chilling effect on other employees of Vivantes and discourage them from reporting any shortcomings in institutional care. Moreover, in view of the media coverage of the applicant’s case, the sanction could have a chilling effect not only on employees of Vivantes but also on other employees in the nursing service sector. This chilling effect works to the detriment of society as a whole and also has to be taken into consideration when assessing the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was entitled to bring the matter at issue to the public’s attention (see Kudeshkina v. Russia, no. 29492/05, § 99, 26 February 2009). This is particularly true in the area of care for the elderly, where the patients are frequently not capable of defending their own rights and where members of the nursing staff will be the first to become aware of unsatisfactory conditions in the care provided and are thus best placed to act in the public interest by alerting the employer or the public at large.", "92. Accordingly, the Court considers that the applicant’s dismissal without notice in the case at hand was disproportionately severe.", "(iii) Conclusion", "93. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the right of employees to report illegal conduct and wrongdoing at their place of work, the duties and responsibilities of employees towards their employers and the right of employers to manage their staff, and having weighed up the other various interests involved in the present case, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not “necessary in a democratic society”.", "94. The Court therefore considers that in the present case the domestic courts failed to strike a fair balance between the need to protect the employer’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other.", "95. There has accordingly been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "96. The applicant further complained that the proceedings before the labour courts regarding her dismissal were unfair. In her opinion, the employer should have been obliged to prove that her criminal complaint had been frivolously based on untruthful allegations and thus constituted a reason for dismissal without notice under Article 626 § 1 of the German Civil Code. The Court of Appeal had, however, shifted the burden of proof in this respect onto the applicant. She relied on Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "97. The Court has repeatedly held that Article 6 does not lay down any rules on the admissibility of evidence or the way it should be assessed. These are therefore primarily matters for regulation by national law and the national courts, which enjoy a wide margin of appreciation (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006). It notes that in the present case, the applicant, who was represented by counsel throughout the proceedings, had the benefit of adversarial proceedings and was at all stages able to submit, and indeed submitted, the arguments she considered relevant to the case. There is nothing to establish that the evaluation of the case by the domestic courts was arbitrary.", "98. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed 38,498.56 euros (EUR) in respect of pecuniary damage and the additional amount of EUR 112,135.19 for future pecuniary damage. As regards pecuniary damage already incurred, the amount of EUR 33,730.12 represented the loss of salary following her dismissal without notice on 9 February 2005. Furthermore, since contributions to the supplementary company pension scheme for incapacity to work ( Betriebsrente für eine volle Erwerbsminderung ) had been discontinued following her dismissal in February 2005, the applicant argued that she had lost a monthly supplementary company pension in the amount of EUR 194.63 to which she would have been entitled as of 1 June 2008. Consequently, at the time of submission of her just satisfaction claims in mid-June 2010, the accrued damage resulting from the loss of such monthly benefits since 1 June 2008 amounted to EUR 4,768.44. She further claimed that she would have been entitled to such monthly benefits until payment of her regular old-age pension as of 30 September 2028, resulting in future pecuniary damage in the amount of EUR 47,861.27 until that date. She argued, lastly, that her monthly old-age pension entitlement as of July 2028 would have amounted to EUR 334,76. Assuming an average life expectancy of 83 years, the loss of her pension entitlement for a period of 16 years (2028 until 2044) thus represented future pecuniary damage in the amount of EUR 64,273.92.", "The applicant further claimed EUR 10,000 in respect of non-pecuniary damage, claiming that the lengthy proceedings before the domestic courts had caused her psychological stress and impaired her health.", "101. The Government contested these claims. As regards the applicant’s claims in respect of pecuniary damage, the Government argued that there was nothing to establish that this damage had been caused by the alleged breach of the Convention which originated in the applicant’s dismissal without notice of 9 February 2005. The Government pointed out that by a letter dated 19 January 2005, that is, prior to the applicant’s dismissal without notice on 9 February 2005, she had already been given notice on account of her repeated illness, with effect from 31 March 2005. For this reason, a loss of income resulting from the dismissal without notice could only be claimed for the period from 9 February until 31 March 2005, the date on which her ordinary dismissal had become effective. However, during that period the applicant had received sickness benefits ( Krankengeld ) followed by a transitional allowance ( Übergangsgeld ) and had not actually suffered any pecuniary damage. The Government further submitted that the applicant’s calculation with respect to her claim for loss of company pension benefits did not demonstrate how that claim could have its origin in an event which post-dated the termination of her employment relationship by ordinary dismissal with effect from 31 March 2005.", "102. As regards non-pecuniary damage, the Government, while leaving the matter to the Court’s discretion, considered the amount claimed by the applicant to be excessive.", "103. The Court notes that it is not disputed between the parties that the applicant’s employment relationship ended as a consequence of her ordinary dismissal with effect from 31 March 2005. It further observes that the applicant herself had submitted that she received sickness benefits or a transitional allowance for the period between 9 February and 31 March 2005, which compensated for her salary. The Court therefore finds that it has not been established that the applicant suffered pecuniary damage during the period from 9 February to 31 March 2005. It further does not discern any causal link between the violation found and the pecuniary damage alleged for the periods after termination of the employment relationship by ordinary dismissal with effect from 31 March 2005. The Court therefore rejects the applicant’s claim in respect of pecuniary damage.", "104. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head.", "B. Costs and expenses", "105. The applicant also claimed EUR 6,100 for the costs and expenses incurred before the Court.", "106. The Government argued that this sum considerably exceeded the amounts usually awarded by the Court in respect of costs and expenses.", "107. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 in respect of costs and expenses for the proceedings before the Court.", "C. Default interest", "108. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955 and lives in Pirna.", "6. The applicant had been employed as head of the sub - division in charge of sanctioning misuse of housing property ( Zweckentfremdung ) in the Housing Office of the Municipality of Dresden since 1993.", "7. On 9 December 1998 a meeting of the staff of the Housing Office took place in the presence of the Deputy Mayor for Economy and Housing, W., an elected official who, inter alia, governed the Housing Office, and of a number of staff and trade union representatives. Following a short address on the issue of the expiry of the regulation on misuse of housing property by 31 December 1998 given by W., the applicant took the floor and accused W. of having committed perversion of justice ( Rechtsbeugung ) by ordering the issue of an unlawful demolition permit for a block of flats in 1995/1996.", "8. On 11 December 1998 the applicant ’ s head of division requested the applicant to substantiate his allegations in writing.", "9. On 17 December 1998 the applicant submitted several pages of written comments, in which he repeated several times (using bold characters) his allegations that W. had committed perversion of justice by ordering the issue of a demolition permit in 1995/1996 without, at the same time, imposing compensation payments for the loss of housing space caused by the demolition. According to the applicant, W. had “ruthlessly pursued politico-economic interests”. He further submitted that all staff members of his sub-division considered that W. had deliberately discredited their work. Furthermore, W. had unlawfully attempted to dissolve the sub-division, thus putting at risk its staff ’ s employment. The statement made by W. during the staff meeting had been degrading and cynical and had contained half ‑ truths and lies. W. had not assumed any personal responsibility and did not show any concern for finding a socially acceptable solution to the problems arising from the dissolution of the sub-division.", "10. By letter of 24 March 1999 the Municipality of Dresden dismissed the applicant with effect from 30 June 1999. The dismissal was primarily based on the applicant ’ s statement during the staff meeting. According to the letter of dismissal, the applicant ’ s accusations against W. had been unjustified. By making these accusations in front of a large number of staff members and representatives of the staff committee and of the trade union, the applicant had damaged his superior ’ s reputation and thus irrevocably destroyed the mutual trust which was necessary for effective cooperation. It was further observed that the applicant had not availed himself of the possibility of submitting his concerns to his superior or to the Mayor. Finally, it was noted that the applicant had been reprimanded for disloyal conduct on two previous occasions.", "11. On 17 July 1999 a local newspaper published a letter to the editor in which the applicant expressed the opinion that the Deputy Mayor W. lacked any competence for resolving problems relating to housing issues.", "12. By judgment of 24 May 2000 the Dresden Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal since this could not be justified under section 1 of the Unfair Dismissal Act ( Kündigungsschutzgesetz, see relevant domestic law, below). The Labour Court did not find it necessary to decide whether the applicant ’ s allegations had been correct, as they were, in any event, covered by the applicant ’ s right to freedom of expression.", "13. On 8 January 2002 the Saxon Labour Court of Appeal ( Landesarbeitsgericht ) dismissed the appeal lodged by the Municipality of Dresden.", "14. On 6 November 2003 the Federal Labour Court ( Bundesarbeitsgericht ), upon the Municipality ’ s appeal on points of law, quashed the judgment of 8 January 2002 and remitted the case to the Labour Court of Appeal (no. 2 AZR 177/02). Under the case-law of the Federal Labour Court, gross insults directed against the employer or the employer ’ s representative, which constituted a serious violation of the concerned person ’ s honour, could justify dismissal on grounds relating to the employee ’ s conduct. In order to establish the seriousness of the violation of honour, it had to be established whether the applicant ’ s allegations were based on objective facts. Account also had to be taken of whether the criticism had been made among staff members or whether other persons had been present. Finally it had to be considered that employees of the public service had to respect specific obligations under their Code of Conduct.", "15. The Federal Labour Court confirmed that the right to freedom of expression always had to be taken into account when assessing inappropriate language in a workplace context and that the applicant ’ s allegations fell within the scope of his right to freedom of expression. Accordingly, the court had to weigh this right against the protected legal interest with which there had been an interference.", "16. The Federal Labour Court considered that the Court of Appeal, when weighing the competing interests, had failed to establish correctly the seriousness of the applicant ’ s allegations and of the violation of the Deputy Mayor ’ s personality rights. Under the Criminal Code, perversion of justice was a crime subject to up to five years ’ imprisonment. In case of a criminal conviction under this provision, a deputy mayor would automatically lose his office. The conduct of a public service employee had to be measured against a stricter yardstick than that of an employee in the private sector. In particular, the employee was under an obligation to behave in such a way as not to interfere with his public employer ’ s reputation. Under the Professional Code of Conduct, the employee had to exercise special restraint when openly criticising a superior ’ s decisions. A public allegation of perversion of justice directed against a superior, in particular if it was unfounded, very seriously violated the superior ’ s personality rights and interfered, as a rule, with the employee ’ s professional duties.", "17. Accordingly, in order duly to weigh the competing interests in the light of the right to freedom of expression, the Court of Appeal would have to examine whether the applicant ’ s allegations had been justified or not. It had further to be taken into account that the allegations had been made during a staff meeting. While it was true that criticism made in this context could occasionally be exaggerated or polemic without giving the employer a ground for dismissal, this right was limited by the obligation not to disturb peace in the office. It had to be taken into account in the applicant ’ s favour that the staff meeting concerned the suppression of the applicant ’ s field of work and that the atmosphere had been rather tense. However, this did not justify neglecting the fact that the allegation of perversion of justice did not concern the subject matter of the staff meeting, but a single incident which dated back several years and had not been mentioned by the applicant since 1997. The applicant did not make use of the possibility of informing the Mayor about his legal concerns regarding the Deputy Mayor ’ s decision. At the time of the staff meeting, the decision dated back such a long time that an attempt to put the decision into question must have lacked the prospect of success. Accordingly, it appeared that the applicant ’ s statement was rather aimed at attacking the Deputy Mayor.", "18. It had also to be taken into account that the statement was made in the presence of persons who were not necessarily bound by confidentiality. Accordingly, there was the risk that the applicant ’ s allegations would leak out of this close circle and be made known to a wider public. The Federal Labour Court finally observed that the applicant ’ s statement had to be seen in the wider context of his conduct and that the applicant had further exacerbated the conflict by the content of his written comments.", "19. On 16 November 2004 the Saxon Labour Court of Appeal quashed the judgment of the Labour Court dated 24 May 2000 and dismissed the applicant ’ s action.", "20. The Labour Court of Appeal considered that the applicant ’ s dismissal had been justified because the applicant, in his statement at the staff meeting and in his subsequent written submissions, had seriously insulted and slandered the Deputy Mayor by accusing him of perversion of justice. Based on a detailed examination of the factual and legal situation in 1995/1996, the Labour Court of Appeal considered that the decision taken by the Deputy Mayor at that time had been lawful. The applicant ’ s written submissions of 17 December 1998 demonstrated that he was not willing to accept and implement politically legitimate decisions, if they concerned sanctions for misuse of property by house owners. The content of the letter to the editor (see paragraph 11, above) contained value judgments which did not amount to insult. However, the Deputy Mayor could not be expected to maintain daily co-operation with the applicant after reading this letter in which he had been described as incompetent. The Labour Court of Appeal further observed that the applicant had not revised his opinion during the proceedings.", "21. The Labour Court of Appeal further considered that the employer did not have any milder means at its disposal. In particular, it would not have been sufficient to reprimand the applicant and to transfer him to another working position. The court observed that the applicant was currently working in the Public Procurement Office and that there was no negative information about his conduct. This was temporary employment which the applicant had obtained by court order in separate proceedings. The applicant had expressed his readiness to accept employment even at a lower level. However, the Labour Court of Appeal considered that the applicant would not have changed his attitude without his dismissal from office. The Municipality could reasonably expect that the applicant would have carried on with his self-righteous attitude if he had not been dismissed. The Labour Court of Appeal finally considered that the applicant ’ s chances of finding new employment were low. Nevertheless, the employer ’ s interest in terminating the employment outweighed the applicant ’ s interests.", "22. On 15 March 2005 the Federal Labour Court dismissed the applicant ’ s request to be granted leave to appeal on points of law.", "23. On 25 August 2010 the Federal Constitutional Court refused to entertain the applicant ’ s constitutional complaint (no. 1 BvR 947/05), without providing reasons.", "III. COUNCIL OF EUROPE DOCUMENTS", "27. The model code of conduct for public officials appended to Recommendation No. R (2000) 10 of the Committee of Ministers to member states on codes of conduct for public officials – as far as relevant – reads as follows:", "Article 4", "1. The public official should carry out his or her duties in accordance with the law, and with those lawful instructions and ethical standards which relate to his or her functions.", "2. The public official should act in a politically neutral manner and should not attempt to frustrate the lawful policies, decisions or actions of the public authorities.", "Article 5", "1. The public official has the duty to serve loyally the lawfully constituted national, local or regional authority.", "2. The public official is expected to be honest, impartial and efficient and to perform his or her duties to the best of his or her ability with skill, fairness and understanding, having regard only for the public interest and the relevant circumstances of the case.", "3. The public official should be courteous both in his or her relations with the citizens he or she serves, as well as in his or her relations with his or her superiors, colleagues and subordinate staff." ]

[ "II. RELEVANT DOMESTIC LAW", "24. Section 53 of the Collective Agreement for Public Service Employees in the eastern part of Germany ( Bundesangestelltentarifvertrag Ost, BAT-O) provides that an employee, who has worked a minimum period of five years in the public service, may be dismissed with three months ’ notice.", "25. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of that Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct.", "26. Article 339 of the Criminal Code provides that a judge, another public official or an arbitrator who, in conducting or deciding a legal matter perverts the course of justice for the benefit or to the detriment of a party, shall be liable to imprisonment from one to five years. Article 12 of the Code provides that unlawful acts punishable by a minimum sentence of one year ’ s imprisonment are considered to be felonies ( Verbrechen ).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "28. The applicant complained that his dismissal from office violated his right to freedom of expression as provided in Article 10 of the Convention, which, so far as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ( ... )", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ( ... ) for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, ( ... ) .”", "29. The Government contested that argument.", "A. Admissibility", "30. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The applicant ’ s submissions", "31. The applicant asserted that the staff meeting was limited to the employees of the Housing Office and, according to the relevant domestic law, was not public in order to encourage employees to speak out. Trade union representatives could attend but were obliged to respect confidentiality. The staff meeting was therefore the place determined by law to express internal criticism. According to the applicant, the content of the criticism expressed by him was entirely work-related. It was not meant to reach the public but to denounce an internal grievance.", "32. Referring to the case-law of the Federal Labour Court, the applicant submitted that under domestic law the expression of an erroneous legal opinion may not lead to sanctions by the employer. He therefore had the right to comment on the unlawfulness of W. ’ s decision. Insofar as he used the expression “perversion of justice” this implied any kind of breach of law, intentional or negligent, but had by no means to be understood as an accusation that W. fulfilled all elements of crime prescribed in Article 339 of the Criminal Code (see paragraph 26, above).", "33. The applicant further submitted that W. ’ s 1995/96 decision was also related to the dissolution of the sub - division. At that time the Deputy Mayor had already initiated a policy of rollback towards the regulations on misuse of housing property.", "34. Finally, the applicant views the dismissal as disproportionate. His transfer to a different workplace which was not under the supervision of Deputy Mayor W. would have been sufficient to resolve the conflict. The Municipality of Dresden employed 2700 workers in seven departments, each of them led by a different deputy mayor. It would therefore have been possible to continue to employ the applicant without risking another confrontation with W. Between 2002 and 2005 the applicant was employed in another field of work and proved to be a reliable employee. Furthermore, at the time of his dismissal the applicant was 44 years old. His work experience was of limited value on the job market and he therefore had not found any possibility – save the employment between 2002 and 2004 – to be integrated into the job market, and lived on unemployment benefits.", "2. The Government ’ s submissions", "35. The Government agreed that there had been an interference with the applicant ’ s rights under Article 10 of the Convention but regarded this interference as justified to pursue the legitimate aim of protecting the reputation or the rights of others and to prevent the dissemination of confidential information. Referring widely to the arguments of the Federal Labour Court and the subsequent judgment of the Labour Court of Appeal of 16 November 2004, the Government stressed that the applicant ’ s primary motivation was to defame the mayor personally. They argued that the applicant could not use the term “perverting the course of justice” without distinction as a lay person not working in a legal area might do.", "36. Furthermore, the applicant had not undertaken any measures to resolve the dispute in 1995/96. This matter had no relevance whatsoever to the staff meeting. In any case, a staff meeting did not serve to monitor the general administrative conduct of the agency : it could only address matters which had a direct impact on the agency or its employees.", "37. The Government concluded that the Municipality of Dresden had been entitled to assume that the applicant ’ s relationship with the Deputy Mayor W. personally was not only strained, but that overall there was no longer an expectation of loyalty and acceptance towards future supervisors or towards the city administration as employer.", "38. Finally the Government added that there had been no possibility of a less severe option than the dismissal of the applicant and that the applicant ’ s non-objectionable conduct during the temporary continuation of his employment had probably only occurred because his employment had been terminated.", "3. Assessment by the Court", "39. The Court reiterates that the protection of Article 10 of the Convention extends to the workplace in general and to the public service in particular (see, among other authorities, Wojtas-Kaleta v. Poland, no. 20436/02, § 42, 16 July 2009; Guja v. Moldova [GC], no. 14277/04, § 52, 12 February 2008; Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; Ahmed and Others v. The United Kingdom, no. 22954/93, § 56, 2 September 1998 ). Accordingly, the protection of Article 10 also applies to the statements made by the applicant during the staff meeting on 9 December 1998. It follows that the dismissal from office, which was primarily based on these statements, interfered with the applicant ’ s right to freedom of expression.", "40. The Court observes that the dismissal from office was based on section 53 of the Collective Agreement for Public Service Employees in connection with section 1 of the Unfair Dismissal Act and was thus “prescribed by law” within the meaning of Article 10 § 2 of the Convention. Furthermore, the applicant ’ s dismissal pursued the legitimate aim of protecting the Deputy Mayor ’ s honour and a professional work environment at the Housing Office, thus the reputation and rights of others.", "41. It remains to be determined whether the interference was “necessary in a democratic society”.", "42. The Court reiterates the basic principles laid down in its judgments concerning Article 10 which have been summarised as follows (see, among other authorities, Mouvement Raëlien Suisse v. Switzerland [GC], no. 16354/06, § 48, 13 July 2012; Matúz v. Hungary, no. 73571/10, § 31, 21 October 2014, § 55; Vogt v. Germany [GC], no. 17851/91, § 52, 26 September 1995 ) :", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ .... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... . ”", "43. The Court further reiterates that employees have a duty of loyalty, reserve and discretion to their employer. This is particularly so in the case of the public service, since the very nature of public service requires its employees to be bound by a duty of loyalty and discretion (compare Guja, cited above, § 71; see also Articles 4 and 5 of the model code of conduct for public officials adopted by the Committee of Ministers, paragraph 27, above ).", "44. Furthermore, under the Court ’ s case-law, the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja, cited above, § 72 and Heinisch v. Germany, no. 28274/08, § 63, 21 July 2011 ).", "45. The Court ’ s task is therefore to determine whether, in the light of the case as a whole, the sanction imposed on the applicant was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were “relevant and sufficient” ( compare Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 63, 12 September 2011; Fuentes Bobo, cited above, § 44). It has to take into account the circumstances of the case, including, inter alia, the applicant ’ s motivation for his statement, its legal and factual base, the actual wording and its possible interpretations, the impact it had on the employer and the sanction inflicted on the applicant.", "46. Turning to the circumstances of the instant case, with regard to the applicant ’ s motivation, the Court observes that, at the time of the staff meeting, the Deputy Mayor ’ s decision dated back almost two years. Moreover, it appears that the applicant addressed his concerns neither to W. ’ s superior, nor to the public prosecution. The applicant himself claims that he did not want to address the public. Finally, the issue was not closely related to any subject on the agenda of the staff meeting.", "47. The Court further notes that the Federal Labour Court (see paragraph 17, above) held that the applicant ’ s statement was not aimed at uncovering an unacceptable situation within the Housing Office, but was rather motivated by the applicant ’ s personal misgivings about the Deputy Mayor arising from the prospect of the impending dissolution of his sub ‑ division. The current case has therefore to be distinguished from cases of “whistle-blowing”, an action warranting special protection under Article 10 of the Convention, in which an employee reports a criminal offence in order to draw attention to alleged unlawful conduct of the employer (see Heinisch, cited above, § 43).", "48. The Court further observes that the Saxon Labour Court of Appeal, on the basis of a thorough examination of the factual and legal situation at the time the impugned demolition permit had been issued, considered that the decision taken by the Deputy Mayor had been lawful and the applicant ’ s accusations of perversion of justice unfounded. The Court considers that the applicant, as the long-serving head of the sub - division in charge of sanctioning misuse of housing property, must have been well-acquainted with the legal background. Accordingly, the Court is not convinced that he acquitted himself of the obligation to verify carefully whether his allegations were accurate.", "49. Insofar as the applicant alleged that he had used the term “perversion of justice” in a colloquial way and therefore had only intended to say that the disputed action of 1995/96 had been unlawful, without implying any intentions of W. relevant under criminal law, the Court notes that the Federal Labour Court found that the applicant, as the head of a sub - division of a public authority dealing with legal issues, was more adept in legal matters than the general public. It is thus not unreasonable to assume that he should have been aware of the legal implication of the term “perversion of justice”, in particular, that it described an intentional abuse of public authority punishable with a minimum of one year ’ s imprisonment under Article 339 of the Criminal Code, thus considered a felony under domestic law (see paragraph 26, above). The Court considers the unfounded allegation of a serious crime rather a defamatory accusation than a criticism in the interest of the public (compare Barfod v. Denmark, no. 11508/85, §§ 31, 35, 22 February 1989) and notes that the Saxon Labour Court of Appeal held in its 2004 judgment that the applicant had never withdrawn his allegation that W. had committed this crime.", "50. The Court further observes that the applicant was given the opportunity to substantiate his allegations and that he repeated his accusations in written form more than a week after the staff meeting, using the term “perversion of justice” several times in bold letters. It follows that the dismissal was not only based on the applicant ’ s spontaneous statement during the meeting, but also on a written statement he submitted after having been given time to reflect on the impact of his allegations (see Palomo Sanchez and Others, § 73, cited above; and De Diego Nafría v. Spain, no. 46833/99, § 41, 14 March 2002). Moreover, if in doubt, he had the opportunity to verify the legal significance of the term “perversion of justice” after the staff meeting.", "51. With respect to the damage suffered by the authority, the domestic courts found that the applicant ’ s accusations were not only likely to damage the Deputy Mayor ’ s reputation, but also to interfere seriously with the working atmosphere within the Housing Office by undermining the Deputy Mayor ’ s authority. The Court observes that the accusations were not made publicly, but during a staff meeting. It notes, however, that the Federal Labour Court, when assessing the impact of the applicant ’ s statement, considered that not all persons present at the staff meeting had been staff members and that there had been a risk that the applicant ’ s allegations would be made known to a wider public. The Court acknowledges that this intensified the potential impact of the accusations as well as the fact that the crime in question was a felony, and as such the attack on W. ’ s reputation was even graver. For these reasons the case must be distinguished from the case of Rubin v. Latvia (no. 79040/12, 13 January 2015) in which the domestic courts had not established that insults had been made (§ 91) and the applicant based his accusations on facts undisputed by the parties involved (§§ 84, 85).", "52. The Court further notes that the applicant did not act in the context of an ongoing labour conflict (compare and contrast, Palomo Sanchez and Others, § 72, cited above), nor submit any trade union activity on the issues at stake nor claim to be a union activist himself.", "53. The Court observes that the applicant ’ s dismissal from office constituted the heaviest sanction possible under labour law (compare Heinisch, cited above, § 91). It further notes that the Saxon Labour Court of Appeal in its judgment of 16 November 2004 held that the applicant ’ s non ‑ objectionable conduct at another working place within the Municipality of Dresden was likely to be due to his dismissal and the pending proceedings. The Court further observes that the Labour Court of Appeal acknowledged the applicant ’ s difficulty in finding new employment at the age of 44 but still found the dismissal necessary because the applicant ’ s behaviour – also during the proceedings before the domestic courts – had shown that the applicant was likely to reproach the Deputy Mayor ’ s conduct in the presence of other employees and in public. Its view, that the Municipality could rightfully fear that the applicant would return to his past behaviour if reinstated, taking into account further elements such as the applicant ’ s written comments and his letter to the editor, is not unreasonable and as such is acceptable under the Convention.", "54. Having regard to the above considerations and, in particular, to the fact that the Federal Labour Court and the Saxon Labour Court of Appeal in its subsequent judgment both carefully examined the case in the light of the applicant ’ s right to freedom of expression, the Court considers relevant and sufficient the domestic courts ’ reasons for deciding that the applicant ’ s right to freedom of expression did not outweigh the public employer ’ s interest in his dismissal.", "55. The dismissal cannot therefore be considered to amount to a disproportionate interference with the applicant ’ s right to freedom of expression. The Court concludes therefore that there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1943 and lives in Bucharest.", "A. Background to the case", "6. At the relevant time the applicant was a member of the teaching staff, as associate professor ( “ conferenţiar universitar ” ), of the University of Agronomical Sciences and Veterinary Medicine (hereafter “the University”), which is a State university.", "7. Between 2002 and 2005 the applicant submitted many requests to the education authorities of the University and the Ministry of Education for the creation of a position of full professor in his department. He claimed that he met all the required professional criteria for occupying such a position. On 23 March 2005 the rector informed the applicant that for financial and other objective reasons, a new professor position could not be created.", "8. The applicant was also a member of a non-profit organisation called the European Association of University Teaching Staff in Romania (“the Association”). Its general aim was to stop the degradation of education and research standards by making known the abuses, unlawful acts and corruption in education.", "B. Newspaper articles about corruption at university level", "9. On 8 March 2005, a journalist, S.A., had an article published in the newspaper România liberă entitled “Corruption at university level”. The article stated that intellectual theft and plagiarism had been noted at the University of Agronomical Sciences and Veterinary Medicine. The journalist stated in this connection that O.A.A. had published a book, which was mostly (80%) a copy of another book. She nonetheless enjoyed the status of university lecturer under the protection of the deputy rector, Professor N.C.I., who was also the scientific referent of the book.", "10. On 7 June 2005 S.A. had another article published in the same newspaper, entitled “University lecturer ostracised because he denounced university corruption”. The article referred to the applicant, who, having noted that his disclosure about O.A.A. ’ s plagiarism to the dean and the rector of the University had not been followed up by any measures, had informed the press. Instead of benefiting from the protection provided by Law no. 571/2004 for employees who revealed infringements of the law within public authorities and institutions, the applicant had been invited to a meeting organised by the rector on 14 March 2005 and asked why he had informed the press. On 19 April 2005 another meeting was organised by the deputy rector and the dean of the applicant ’ s faculty. On the pretext of redistribution of the faculty ’ s space, they cleared the laboratory used by the applicant for research and practical activities with his students.", "C. Press conference of 3 August 2005", "11. On 3 August 2005 the Association organised a press conference the main topic of which was corruption at university level. Seven cases of alleged corruption were presented. While other members of the Association referred to the corruption existent in other universities, the applicant, in his capacity as secretary- general of the Association, delivered a speech about corruption in his own university. He referred to the cases of O.A.A., a colleague, and of the deputy rector, N.C.I. The former had published a book called The Chemistry of Wine that according to him was mostly (80%) a copy of another book, Oenology, published in 1994 by another author. The applicant also mentioned that the book had been written under the direct supervision and guidance of N.C.I, who had written a eulogistic foreword to the book.", "12. The applicant criticised the way in which N.C.I. had managed the AGRAL programme concerning public funding of scientific research stations; he alleged that N.C.I. had offered funding only to stations from which he could make personal gains.", "13. The applicant also stated that N.C.I. was benefiting from a preferential regime because of his past as former secretary of the Romanian Communist Party. According to the applicant, N.C.I. was occupying too many positions to be able to handle them properly: professor at several different universities; deputy rector of the University of Agronomical Sciences and Veterinary Medicine; president of the National Office of Wine and Vineyards; and director of the AGRAL programme for public funding of research stations. He was also the head of the Department of Viticulture and Oenology.", "14. The applicant also stated that N.C.I. was involved in sabotaging scientific research and that in the department of Viticulture and Oenology led by N.C.I. there was a mafia-type organisation ( “ încregătură de tip mafiot ”).", "15. Most of those statements were repeated in an article entitled “Professor at Piteşti University accused of corruption” published in the weekly newspaper Impact în Argeş of 26 -30 September 2005.", "D. Joint criminal and civil proceedings against the applicant for defamation", "16. On 10 November 2005 N.C.I. lodged a joint criminal and civil complaint against the applicant for defamation. He claimed that the newspaper Impact în Argeş had published an article containing the applicant ’ s views expressed at a press conference on 3 August 2005.", "17. The applicant adduced extensive documentary evidence before the Bucharest District Court. He submitted certificates from different universities at which N.C.I. had taught, the statute of the Association, different documents concerning the AGRAL programme, including the composition of the management of the programme, and a few letters issued by the Odobeşti research station at which O.A.A had performed research activity. He also submitted several newspaper articles containing criticism of N.C.I. and O.A. A.", "18. N.C.I. gave a statement before the court on 13 February 2006. He acknowledged that he was cumulatively occupying the positions of deputy rector of the University, president of the National Office of Wine and Vineyards and director of the AGRAL programme for public funding of research stations. He also stated that even before the press conference the applicant had made defamatory statements about him in letters addressed to the rector of the University, the dean of the Faculty of Oenology and the Ministry of Education.", "19. On 13 March 2006 the court heard as a witness on behalf of the applicant S.A., one of the journalists who had written articles about the alleged corruption in the University (see paragraphs 9 and 10 above). He stated that he had attended the press conference of 3 August 2005. As regards the applicant ’ s allegation that N.C.I. was responsible for the incorrect manner in which public money had been allocated for scientific research, the journalist pointed out that on the basis of the documents he had seen on that occasion, such as salary slips and reports, it was clear to him that discriminatory treatment had been applied to the researchers working for the research stations and the University. The very high payments received by certain members of the University staff had convinced the applicant that only research stations which had accepted the teaching staff agreed by the plaintiff obtained public funding. The journalist also referred to the fact that the plaintiff was occupying several teaching positions at different universities. Lastly, the journalist stated that he had based his articles about the University not only on the material presented by the Association but also on documents from other sources, which he could not reveal.", "20. By a judgment of 17 April 2006, the Bucharest District Court dismissed the criminal complaint. It held that even though the applicant could not prove the veracity of his statements, one element of the crime of defamation was missing, namely an intent to damage the reputation of N.C.I. It also held that the applicant, convinced by the accuracy of his statements, had only intended to present a case of corruption at university level. The most relevant part of the judgment read as follows:", "“In the instant case, the defendant did not prove the accuracy of his statements despite the fact that on 13 February 2006 the court ( taking into account that the morality and legality of the education system at university level is obviously a topic of public interest, and the interest of informing the public opinion and the authorities is serious and legitimate in accordance with Article 207 of the Criminal Code and the Court ’ s case-law – the case of Castells v. Spain [1] and the case of Colombani v. France [2] ) had admitted all the evidence proposed on his behalf.", "...", "Moreover, the documents submitted by the defendant ( namely, the foreword of the book signed by the injured party (N.C.I.), copies of the book covers of The Chemistry of Wine and of the original Oenology, chapters from the two books) do not prove that the injured party encouraged plagiarism.", "Some resemblance in the form and contents of the two works that could be noted by reading in parallel certain chapters cannot lead to the conclusion that the injured party was liable for not denouncing plagiarism. Such a conclusion would mean that the injured party knew perfectly well the previously published book and that he had made a comparative analysis of both works, noting some inconsistencies which he ignored ...", "However, the role of that foreword (and of any foreword in general) is to express a point of view about a work ... and does not represent an objective and critical opinion.”", "...", "“Moreover, the defendant did not prove that the injured party had blackmailed the research stations ...", "The documents submitted by the defendant (copies of the pay slips of March 2005 issued by the Odobeşti research station, the records of the salaries paid by the same research station to several collaborators, and the report of an assessment performed at the research station by an authority of the Agriculture Minister on 20 July 2005) could not lead to the conclusion that the injured party had blackmailed the Odobeşti research station”.", "...", "“In addition, the defendant ’ s allegations that the injured party obtained undeserved profit by unlawfully occupying several positions have not been proved to be true, as the injured party acknowledged that he had several sources of income by lawfully occupying several public offices.", "As regards the defendant ’ s allegation about the sabotaging by the injured party of scientific research by damaging different types of hybrids and then selling the greenhouse in which the defendant carried out research was not proved by the adduced evidence.", "The minute (“ proces-verbal ”) signed by the Faculty of Horticulture and a private company proved that the latter rented a building and the adjacent greenhouse, in which no plants were cultivated; moreover the minute was not signed by the injured party.", "Under these circumstances, after the examination of all evidence, it cannot be concluded that the defendant has proved, beyond any reasonable doubt, that the aspects stated by him are true.”", "21. As regards the applicant ’ s intent to commit defamation, the first ‑ instance court stated the following:", "“The court notes that the defendant ’ s statements were made in the context of a press conference organised by the European Association of University Teaching Staff ( of which the defendant is secretary-general ), the main topic of which was the corruption and unlawful acts committed at university level, it being well known that the main object of the Association is the monitoring and disclosure of irregularities in the academic system.", "Even though the defendant ’ s speech was shocking and exaggerated, it should be regarded as part of a topic of public interest – namely, corruption among university teaching staff – and the legislative and moral reform of the teaching system, an objective desired by the whole of society.", "It should be noted that before the press conference of 3 August 2005, the newspaper România Liberă had published an article concerning the plagiarism of The Chemistry of Wine, and the Association had drafted a report concerning the situation of teaching in Romania. The report denounced the fact that university teachers were simultaneously teaching at several universities ( “ cu normă întreagă ” ) and that teachers, guilty of plagiarism and scientific fraud, were maintained in their positions at universities ( a report that should have been known by the defendant in his capacity as secretary -general of the Association). These aspects prove that the topic had been previously published and debated in a public context.", "At the same time, another important aspect is the fact that at the conference the defendant submitted several documents, such as : time sheets ( “ fişe de pontaj ” ), reports, the foreword written by the injured party for The Chemistry of Wine and copies of the alleged plagiarised book ..., documents which the defendant considered as evidence of the alleged acts.", "Notwithstanding that these documents did not directly prove that the injured party had committed the acts of which he had been accused, they formed the basis of the defendant ’ s intimate conviction that the former was guilty of committing certain irregularities.", "In this context, even though it is obvious that the honour and reputation of the injured party were objectively harmed, the court considers that this situation was the result of the speech and not an aim in itself, since the speaker had expressed his viewpoint in his capacity as a member of the Association and not as a private person, with the intention of contributing to informing on a topic of extreme public interest, that of corruption at university level, which had already been known by the press.", "Consequently, the court considers that the defendant did not act with intent to gratuitously harm the injured party ’ s reputation, but with the conviction that he was revealing a corruption case.”", "22. The court partially allowed the civil complaint, ordering the applicant to pay compensation for non-pecuniary damage amounting to 3,000 Romanian lei (RON ) ( approximately 860 euros (EUR)). It held that under the applicable civil law the applicant could be held liable for even the slightest level of fault. Therefore, the applicant was ordered to pay compensation to N.C.I. for the way he had brought to the attention of journalists the information regarding his professional activity.", "The relevant passages of the decision read as follows:", "“The way in which the defendant brought this information to the journalists ’ attention, without clear evidence, convinced them that the presented facts were plausible ( see in this respect the statements of witness S. A., as well as the articles published in the daily newspapers Impact de Iaşi and Fortune ).", "Consequently, the presentation of superficial information, with a high degree of suggestibility, constitutes an illicit act.", "...", "As regards the defendant ’ s liability, it must be emphasised that the court ’ s finding concerning the defendant ’ s good faith has relevance only in connection with the criminal complaint, given the fact that in order to establish civil liability it is enough for the court to find the slightest level of fault.", "It is true that according to the ECHR ’ s case-law, persons acting as whistleblowers can share information concerning topics of public interest, even if shocking and disturbing; however, they should also take into account the protection of the reputation of others, as provided for by Article 10 § 1 of the Convention (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I ) .”", "23. Appeals on points of law lodged by the parties were allowed. By a decision delivered on 11 November 2006 the Bucharest County Court dismissed the criminal complaint, as a direct consequence of an amendment made to the Criminal Code regarding the decriminalisation of defamation. The civil complaint was left unresolved.", "E. Separate civil action for compensation against the applicant", "24. On 13 December 2006 Professor N.C.I., brought a separate civil action for compensation against the applicant before the Bucharest Civil Court of First Instance. He claimed that certain remarks made by the applicant on 3 August 2005 and other occasions had constituted an attack on his reputation.", "25. The applicant produced extensive testimonial and documentary evidence before the court in order to demonstrate the accuracy of his statements. He adduced copies of the books The Chemistry of Wine and Oenology, and underlined the paragraphs he said had been copied by O.A.A. He also proposed that the court hear statements from individuals working for a certain research station in order to prove that the author of the book The Chemistry of Wine, a “protégée” of N.C.I., was registered as an employee and received a salary from the Odobeşti research station, which benefited from funding granted by N.C.I., without ever turning up to work there. He tried to prove that despite the fact that under the applicable law, a professor does not have the right to teach at more than two universities, N.C.I was a professor at at least three universities.", "26. On 2 April 2007 the Bucharest Civil Court of First Instance allowed the action and the sum of RON 20,000 was awarded to N.C.I as compensation for non-pecuniary damage. It held that the applicant was liable for the way in which he had presented the above information concerning N.C.I. to journalists, who were convinced of the accuracy of his information and had published it in newspapers. The court endorsed the reasoning of the Bucharest District Court in its judgment of 17 April 2006 by copying most of the paragraphs from the latter judgment. Thus, it held among other things, that the applicant had not proved that N.C.I. had encouraged plagiarism by writing the foreword for the book The Chemistry of Wine as the role of any foreword is to express a point of view about a work and not to represent a critical opinion. The court also held that the applicant had not proved that N.C.I. had obtained undeserved profit by unlawfully occupying several positions.", "The applicant was also ordered to pay N.C.I. ’ s legal expenses.", "27. The applicant lodged an appeal on points of law against that judgment. He claimed that he had submitted enough evidence to prove the accuracy of his statements about N.C.I. He pointed out that the court had turned his statement that “in the department of oenology there is a mafia ‑ type organisation ( “ încregătură de tip mafiot” ) into the statement that N.C.I. “is involved in a mafia-type organisation ”. On 30 October 2007 the Bucharest County Court dismissed the appeal, upholding the judgment of the first ‑ instance court. The applicant was ordered to pay the N.C.I. ’ s legal expenses.", "28. On 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant ’ s monthly salary up to RON 27,877 (approximately EUR 7,47 0 ), representing compensation for non-pecuniary damage and the legal expenses awarded to N.C.I. by the domestic courts.", "F. Criminal complaints lodged by the Association against O.A.A. for plagiarism", "29. On an unspecified date the Association lodged a criminal complaint against O.A. A. accusing her of plagiarism. On 20 March 2007 the prosecutor ’ s office attached to the Bucharest County Court decided not to institute criminal proceedings against O.A.A. on the grounds that the complaint had not been lodged by the aggrieved party. It noted, however, that a significant part of the two books, The Chemistry of Wine and Oenology, was similar.", "30. On 6 May 2009 the Association together with the author of the book Oenology lodged another criminal complaint against O.A.A. They also accused N.C.I. of being an accomplice to O.A.A. ’ s plagiarism in his capacity as scientific coordinator of the book. On 17 November 2010 the prosecutor ’ s office attached to Bucharest County Court discontinued the investigation on the grounds that the statutory time-limit for prosecuting the offence of plagiarism had expired.", "G. Disciplinary proceedings against the applicant", "31. On 3 October 2006 the applicant lodged a complaint against the University ’ s decision to decrease his salary of April and May 2006 on account of his unjustified absence from work. He claimed that the measure was illegal as timesheets for registering presence at work had not been introduced at the University until June 2006. Moreover, he adduced evidence according to which he had been at work on the days in question. Among other aspects, he pointed out that the actual reason for sanctioning him was his conflict with the management of the University because he had made public that the deputy rector had encouraged plagiarism.", "32. By a decision of 26 March 2007 the Bucharest County Court – Department of Labour Litigation – allowed the applicant ’ s complaint and ordered the University to pay him the amounts withdrawn from his salaries of April and May 2006. The court held that under Article 287 of the Labour Code the burden of proof lay with the applicant ’ s employer but that it had been unable to produce any legal documents which could prove the applicant ’ s unjustified absence from work.", "33. On 19 June 2006 the University issued a decision by which it applied a disciplinary sanction to the applicant consisting in the suspension, for a period of two years, of his right to apply for a higher teaching position, to obtain a teaching degree or take up a management position. The reasons for the sanction were the following: (i) unjustified absences from several classes and teaching activities; (ii) non-compliance with the teaching curriculum; and (iii) contempt and ignorance of the decisions taken by the management of the faculty and of the department concerning the clearance of a space assigned for setting up a research laboratory.", "34. The applicant challenged the decision before the Bucharest County Court.", "35. On 25 May 2007 the county court noted that the applicant ’ s action remained without object as the University had decided to revoke its decision of 19 June 2006." ]

[ "II. RELEVANT LAW AND PRACTICE", "36. Under Article 72 of Law no. 128/1997 concerning the status of teaching staff, as in force at the relevant time, an individual cannot cumulate management positions as rector, deputy rector, dean, deputy dean and head of a department or of a research unit.", "37. Law no. 1/2011 on national education contains similar provisions under Article 214.", "38. The relevant provisions of the Civil and Criminal Codes concerning defamation and liability for paying damages in force at the material time are described in Stângu and Scutelnicu v. Romania, no. 53899/00, §§ 30-31, 31 January 2006, and Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008.", "39. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008).", "40. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared the removal from the Criminal Code of the Articles concerning insult and defamation to be unconstitutional.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "41. The applicant complained that his right to freedom of expression had been interfered with, in breach of Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others .. .”", "A. Admissibility", "42. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "43. The applicant claimed that he had made the impugned statements at the press conference of 3 August 2005 in his capacity as secretary ‑ general of the Association, and not on his own behalf. In this respect he submitted that as could be noted in its statute, the Association ’ s main aim was to inform the public and the competent authorities about any infringements of the law and of professional ethics by teaching staff at university level. The main reason for organising the press conference on 3 August 2005 was the Association ’ s concern about the constant decrease in education standards in Romanian universities. The main issues of concern were the rise in the number of cases of plagiarism and the fact that many university professors were teaching at several universities at the same time and were involved in collateral activities, leaving them insufficient time to prepare and perform their teaching activity properly.", "44. The applicant also contended that the press had already brought O.A.A. ’ s case of plagiarism to the public ’ s attention before 8 March 2005 and that he had not played any role in those disclosures.", "45. According to the applicant, the statements he made at the press conference should be regarded as whistleblowing on illegal and immoral conduct in his department. In this connection, he disputed the Government ’ s allegation that the main reason which had prompted him to make the impugned statements was his frustration concerning the University ’ s refusal to create a professorship for him.", "46. The applicant submitted that his good faith was proved by the fact that he could have brought the aspects he had revealed to the public ’ s attention without disclosing his identity; he had not hidden because he was convinced by the truthfulness of his statements.", "Moreover, relying on the Romanian Whistleblower Act, the applicant claimed that he benefited from the presumption of good faith, and the domestic authorities had not reversed that presumption.", "47. The applicant further referred to the evidence on which he had based his allegations against N.C.I.", "Firstly, as regards his allegation that N.C.I. had used his position of manager of AGRAL programmes in his own interest, the applicant pointed out that N.C.I. ’ s protégée, O.A.A., had been paid significant amounts for her contribution to the programme with the approval of N.C.I. The applicant had submitted documents in support of his allegation before the domestic courts.", "Secondly, as regards his allegation that N.C.I. occupied several management positions, which by law could not be held cumulatively, the applicant contended that N.C.I. had acknowledged that he had been head of the Oenology Department since 1992, as well as being deputy rector of the University, director of the AGRAL programme and president of the National Office of Viticulture and Oenology.", "Lastly, as regards his allegation that N.C.I. had sabotaged his research activity, the applicant maintained that the greenhouse he had been using for research purposes had been rented to a commercial company. He also pointed out that before renting the greenhouse, the hybrids resulting from his research activity had been removed and thrown away.", "48. The Government did not contest that the decision by which the domestic court had ordered the applicant to pay non-pecuniary damage to N.C.I. represented an interference with the applicant ’ s freedom of expression. They further submitted that the interference was based on Articles 998 -999 of the Romanian Civil Code, as in force at the material time. The legitimate aim pursued by the domestic authorities was the protection of the reputation and dignity of others, as provided for by the second paragraph of Article 10 of the Convention.", "49. The Government also pointed out that even though the applicant was not a journalist, the impugned press article had reflected views expressed by him at the press conference.", "50. In the Government ’ s view, the aspects disclosed by the applicant about his university department during the press conference did not amount to whistleblowing. The Government considered the applicant ’ s good faith questionable, and asserted that the real motive behind his disclosure about alleged corruption in the university was his frustration that he had not been promoted to the position of university professor in spite of his repeated requests.", "51. The Government also submitted that although the applicant ’ s victim enjoyed certain fame in his capacity as deputy rector and university professor, he was not a politician or a public figure.", "52. Lastly, the Government maintained that the domestic court had based their decisions on sufficient and relevant reasons. As regards the procedural guarantees afforded to the applicant in the proceedings, they pointed out that the applicant had been allowed to adduce extensive documentary and testimonial evidence in support of his allegations.", "2. The Court ’ s assessment", "53. It is not disputed between the parties that the final judgment given in the case brought by N.C.I. interfered with the applicant ’ s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention (see paragraph 26). Accordingly, the Court considers that the applicant ’ s obligation to pay N.C.I. the amount of RON 27,877 (RON 20,000 award and RON 7,877 legal expenses) constituted an interference with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "( a) Whether the interference was prescribed by law and had a legitimate aim", "54. The interference in question “ was prescribed by law ” ( Articles 998 ‑ 999 of the Civil Code, as in force at the material time) and pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.", "( b) Whether the interference was necessary in a democratic society", "55. In the present case what is in issue is whether the interference was “necessary in a democratic society”.", "56. The test of whether the interference was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision as regards both the relevant rules and the decisions applying them (see, for example, markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Sosinowska v. Poland, no. 10247/09, § 70, 18 October 2011). The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 41, 21 February 2012 ).", "57. Particular attention must be paid in determining the extent to which interference with the applicant ’ s freedom of expression was proportionate to the public interest in the disclosed information. In this connection, the Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ XIV, and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 102, ECHR 2013 (extracts)).", "58. The Court ’ s task in exercising its supervisory function is not to take the place of the competent domestic courts, but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued”. In doing so, the Court has to satisfy itself that the national authorities, basing their decisions on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV, and Mengi v. Turkey, nos. 13471/05, and 387 87/07, § 48, 27 November 2012).", "59. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Heinisch v. Germany, no. 28274/08, § 63, ECHR 2011 (extracts) ). At the same time, the Court is mindful that employees have a duty of loyalty, reserve and discretion to their employer ( Marchenko v. Ukraine, no. 4063/04, § 45, 19 February 2009).", "60. In addition, in the exercise of the European supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in this type of case, namely on the one hand, freedom of expression protected by Article 10 and, on the other, the right of the person attacked to protect his/her reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life ( Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 90-91, ECHR 2004 ‑ XI ).", "61. Turning to the circumstances of the present case, the Court notes that the topic of the press conference of 3 August 2005 was corruption in Romanian universities. In this connection, the applicant referred to the shortcomings identified in his own university, a State-financed education establishment. He criticised certain aspects of the professional activity of N.C.I., who occupied positions of great responsibility as deputy rector of the University and head of the Department of Viticulture and Oenology.", "62. The applicant claimed that under the supervision and guidance of N.C.I., his colleague, O.A.A., had committed plagiarism. Moreover, the applicant was convinced that O.A.A. had been promoted to the position of assistant professor on the basis of the plagiarised book.", "63. The applicant also criticised the way in which N.C.I. had managed the AGRAL programme and the fact that he was occupying several management positions, which, he claimed, by law could not be cumulatively occupied (see paragraph 40 above).", "64. The Court also notes that the domestic courts situated the applicant ’ s remarks in a broader context, namely the debate generated by the public concern about the rise in the number of corruption cases in Romanian universities. They acknowledged that his allegations concerned a topic of public interest, namely the legality and morality of education at university level (see paragraphs 20 and 21 above).", "65. In the light of the foregoing, the Court finds that the applicant ’ s statements concerned important issues in a democratic society, about which the public had a legitimate interest in being informed, particularly given the position of the plaintiff vis-à-vis the institution concerned. The Court considers, therefore, that the applicant ’ s allegations were of public interest.", "66. As regards the accuracy of the applicant ’ s statements, the Court reiterates that freedom of expression carries with it duties and responsibilities, and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III).", "67. In the course of the proceedings against him, the applicant endeavoured to demonstrate that his statements had been well ‑ founded by submitting extensive documentary evidence.", "68. Although the domestic courts considered that the applicant had not proved the veracity of his allegations, they noted that he had acted not with the intention of harming N.C.I. ’ s reputation but with the conviction that he was revealing a case of corruption (see paragraph 21 above).", "69. As regards the motives behind his actions, the applicant contended that he had acted as a whistle-blower. The Court does not consider the present case as a whistle-blower case (see, for instance, Rubins v. Latvia, no. 79040/12, § 87, 13 January 2015). However, it appreciates that the applicant ’ s reasons, as presented by the applicant himself, for the impugned statements are relevant for the assessment of the proportionality of the interference in the applicant ’ s exercise of his freedom of expression.", "70. In this respect the Court notes that while the applicant contended that his main motive for making the statements at the press conference was the concern of the Association, of which he was a member at that time, about the constant decrease in educational standards in Romanian universities, the Government maintained that the real motive for the disclosures he had made was his frustration as a result of not being promoted to the position of university professor.", "71. On the basis of the materials before it, and even assuming that the applicant ’ s frustration as a result of not being promoted to a position of professor might have been an additional motive for his actions, the Court has no reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged shortcomings in his University to the public. It considers that even if the applicant allowed himself a certain degree of exaggeration and generalisation, his allegations were not entirely devoid of factual grounds and did not amount to a gratuitous personal attack on N.C.I. and O.A.A.", "The Court notes that the applicant informed the rector of the University and the Ministry of Education about the shortcomings perceived by him in the management of the department lead by N.C.I. before disclosing them to the press. As his flagging was not followed up by concrete steps to change the situation, the applicant presented the shortcomings at the press conference of 3 August 2005.", "72. The Court will further consider the damage, if any, suffered by N.C.I. as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed.", "73. The Court observes that the plaintiff in question, N.C.I., was the deputy rector and head of the Department of Oenology of the University. Therefore, at the time the press conference was organised, he occupied important management positions in a State-financed university. He was thus expected to tolerate a greater degree of public scrutiny than a private individual, even though it may have had a negative impact on his honour and reputation, particularly given the context of the subject matter at issue.", "74. The applicant ’ s criticism of the head of his department concerned his behaviour and attitudes in his capacity as an official, rather than his private life. The Court reiterates in this connection that senior civil servants acting in an official capacity are subject to wider limits of acceptable criticism than private individuals (see Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001 ‑ III; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004 ‑ XI; Mamère v. France, no. 12697/03, § 27, ECHR 2006 ‑ XIII; and Dyundin v. Russia, no. 37406/03, § 26, 14 October 2008).", "75. The Court considers that the domestic courts did not convincingly establish that the interference caused any particular harm to N.C.I. personally, or that his career was adversely affected.", "76. The Court further reiterates that in assessing whether the interference was proportionate to the legitimate aim pursued, an attentive analysis of the sanction imposed on the applicant and its consequences is required (see Fuentes Bobo v. Spain, no. 39293/98, § 49, 29 February 2000 ).", "77. The applicant was ordered to pay to N.C.I. the amount of RON 27,877 (RON 20,000 compensation for non-pecuniary damage and RON 7,877 legal expenses) (approximately EUR 7,470) on account of the statements he had made at the press conference of 3 August 2005.", "78. It is true that the criminal proceedings against the applicant were stopped. However, although the applicant did not specify his monthly income at the relevant time, the Court considers that the civil damages he was ordered to pay to the plaintiff were substantial (see paragraphs 26 and 28 above) when compared with the incomes and resources of academics in Romania.", "(c) Conclusion", "79. Bearing in mind the importance of the right to freedom of expression on matters of general interest ( ... ) and having weighed up the other different interests involved in the present case – the Court comes to the conclusion that the interference with the applicant ’ s right to freedom of expression was not “necessary in a democratic society”.", "80. There has therefore been a violation of Article 10 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "81. Lastly, the applicant complained under Article 6 § 1 of the Convention that the domestic courts had rejected his request for a financial expert report and had not replied to all his arguments. Under Article 11 of the Convention the applicant claimed that he had been held liable for statements made in his capacity as secretary -general of a non ‑ profit organisation and not as a private individual.", "82. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "83. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "84. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, representing the amount he had been ordered to pay N.C.I. in non ‑ pecuniary damages and court fees. The applicant also claimed EUR 10,000 in respect of non-pecuniary damage.", "85. The Government considered the claims excessive. In their view, the finding of a violation was sufficient compensation for any damage suffered by the applicant.", "86. The Court notes that on 20 March 2008 the University issued a decision by which it ordered the seizure of one third of the applicant ’ s monthly salary up to RON 27,877 (approximately EUR 7,470) (see paragraph 28 above). It therefore awards him EUR 7, 470 in respect of pecuniary damage. On the other hand, it awards the applicant EUR 4,500 in respect of non-pecuniary damage.", "B. Costs and expenses", "87. The applicant also claimed EUR 3,000 for the costs and expenses incurred in connection with lawyers ’ fees and translation expenses before the domestic courts and the Court.", "88. The Government contested the claim and pointed out that the applicant had failed to adduce relevant documents to justify all the alleged expenses. They contended that he had submitted evidence which justified the reimbursement of RON 3, 035 (approximately EUR 720).", "89. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7 20 covering costs under all heads for costs and expenses in the domestic proceedings and for the proceedings before the Court.", "C. Default interest", "90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1957 and lives in Góis.", "A. Background of the proceedings", "6. At the relevant time, the applicant was a chief corporal in the National Republican Guard ( Guarda Nacional Republicana ), working at the Góis territorial post.", "7. On 7 November 2009 the applicant sent an email to the General Inspectorate of Internal Administration ( Inspecção-Geral da Administração Interna ) on the subject “ Suspected misuse of money”, in which he made reference to an alleged misuse of money by Commander M. C. of the Arganil territorial post in accordance with what he had heard in a conversation with colleagues at the Arganil territorial post. He asked the General Inspectorate to investigate the alleged facts, stating as follows :", "“In the month of December 2008 the Coimbra [ National Republican Guard ] Territorial Group distributed money to the territorial posts of its area of command ... for the Christmas dinner ...", "The only members of the military [ in Arganil ] who attended the dinner were the Commander of the post and Corporal M.; the total amount of money that had been given to the military from the [ territorial ] post [ to pay for the dinner ] was paid to the restaurant ’ s manager in exchange for a receipt ... it seems that the Commander has since then been going with his family to the mentioned restaurant, where the cost of his meals is deducted from the money that was not spent [on the above dinner] ... Note: I have just become aware of this matter through rumours within the military of the mentioned post, who claim that they have not reported the situation for fear of reprisals, and because of that [fear of reprisals] I ask you for secrecy during the investigation because I am also a member of the military ... ”", "8. On an unknown date the General Inspectorate of Internal Administration forwarded the email to the General Command of the National Republican Guard ( Comando Geral da Guarda Nacional Republicana ) and to the Lousã public prosecutor ’ s office ( Ministério Público ).", "9. On an unknown date the Lousã public prosecutor ’ s office opened an investigation into the applicant ’ s allegations. On 28 February 2010 the Lousã public prosecutor ’ s office discontinued the proceedings on the grounds that, following investigations by the criminal investigation police ( Policía Judiciária ), it had found no evidence of the criminal offence denounced by the applicant.", "10. The General Inspectorate of Internal Administration also conducted an inquiry into the applicant ’ s allegations. On 21 June 2010 the inquiry was discontinued.", "11. The General Command of the National Republican Guard also started an internal inquiry into the allegations on 4 December 2009. On 23 December 2009 Commander M. C. was heard in that respect. He then became aware of the email of 7 November 2009 and its content. On 9 February 2010 the inquiry was converted into disciplinary proceedings against Commander M. C. at the request of the official in charge of the inquiry on the grounds that the management of the cafeteria of the Arganil territorial post showed signs of lack of transparency which required further investigation.", "12. On 30 July 2010 the disciplinary proceedings against Commander M. C. were discontinued on the grounds that there was insufficient evidence to take disciplinary action. The decision to discontinue the disciplinary proceedings also took into account the decision of the Lousã public prosecutor ’ s office to discontinue the criminal proceedings against Commander M. C.", "B. Criminal proceedings against the applicant", "13. On 22 April 2010 Commander M. C. lodged a criminal complaint before the Lousã public prosecutor ’ s office, accusing the applicant of defamation. He alleged that the applicant ’ s email had disseminated injurious statements about him.", "14. On 7 July 2011 the public prosecutor brought charges ( acusação ) against the applicant for aggravated defamation on the grounds that the statements made in his email called into question Commander M. C. ’ s honesty, honour and professional reputation, which the applicant had intentionally attacked.", "15. On 21 September 2011 Commander M. C. lodged a claim for damages against the applicant in the amount of 5,000 euros (EUR).", "16. In a judgment of 17 January 2012 the Lousã Criminal Court convicted the applicant of aggravated defamation and sentenced him to eighty day - fines, totalling EUR 720 euros. The applicant was also ordered to pay EUR 1,000 in damages to Commander M. C. The Court described its findings of fact and the manner in which it had assessed the evidence, and held as follows:", "“ ... since the existence of such a rumor has not been proved in any way, the court is fully convinced that the defendant ’ s intention was to undermine the honour of the offended party, once he knew that this was just a rumour and that therefore he was making an allegation that was not true.", "...", "The allegation made in the defendant ’ s complaint, by its content, put into question the offended party ’ s honesty, honour and professional reputation as commander of a territorial post of the National Republican Guard – which was well known to the defendant.", "The defendant has therefore acted in a free, voluntary and conscious way, with the achieved aim of attacking the offended party ’ s honour and personal and professional reputation.", "...", "The disclosure of irregular situations has to be seen as a duty (as the performance of an obligation) when it falls within the competence and responsibilities of the whistle-blower and when it does not go beyond the facts which were effectively observed. [Whistle-blowing] cannot be used as a basis to cast suspicion which cannot be supported by any factual element.", "In the instant case, the defendant accuses the offended party of facts which are objectively dishonorable without having any evidence to substantiate them. Indeed, by submitting that the offended party and his family were using the existing credit to have dinner at the mentioned restaurant, the defendant knew that he was accusing the offended party of a dishonorable deed, all the more because he knew that the offended party was in charge of the National Republican Guard ’ s Arganil territorial post. He further knew that the allegation was inconsistent with the truth and that he could easily have clarified its authenticity with the restaurant owner.", "Through such conduct, the defendant acted of his own free will and in the knowledge that ... [ his actions ] were not allowed.”", "17. On an unknown date the applicant appealed against the judgment to the Coimbra Court of Appeal. In particular, he contested the established facts as, in his opinion, he had not acted with the intention of attacking Commander M. C. ’ s honour and reputation.", "18. On 19 September 2012 the Coimbra Court of Appeal upheld the first - instance court ’ s decision. It considered that there were no reasons to change the facts established by the first - instance court and, as such, no reasons to reach a different conclusion with regard to the applicant ’ s guilt and conviction.", "C. Disciplinary proceedings against the applicant", "19. On 3 August 2011 the General Command of the National Republican Guard instituted disciplinary proceedings against the applicant.", "20. On 20 February 2013 the official in charge of the inquiry within the disciplinary proceedings against the applicant submitted a final report in which he concluded that the applicant had breached his duties. The relevant passage of the report reads as follows:", "“ ... the defendant breached the duty of loyalty ... as being on duty and being part of the Góis Territorial Post in the quality of Deputy Commander of the Post, he did not inform his hierarchical superiors, in clear disregard of the functional hierarchy principles, of the acts allegedly committed ... ”", "21. In the report it was also taken into account that the applicant ’ s allegations had been investigated by different authorities, all of which had discontinued their investigations. Additionally, it had regard to the fact that the applicant had been convicted by the domestic courts in the criminal proceedings against him. The report further analysed the existence of a fine which Commander M.C. had imposed on the applicant before the latter had sent the impugned email. However, the official responsible for the report considered that fact to be innocuous and irrelevant.", "22. On 27 March 2013, at the request of the official responsible for the disciplinary proceedings, the General Command imposed on the applicant a disciplinary sanction consisting of suspension from duty for six days, its enforcement being suspended for a period of twelve months.", "23. According to the material submitted in the case file, it seems that the applicant did not lodge an appeal against the disciplinary sanction with the Minister of Home Affairs." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Relevant provisions of the Portuguese Criminal Code", "Article 180 § 1", "“Anyone who, when addressing a third party, accuses another, even if the accusation takes the form of a suspicion, or makes a judgment that casts a slur on the honour or reputation of the other, even when reproducing the accusation or judgment, shall be liable on conviction to a maximum of six months ’ imprisonment or 240 day-fines.”", "24. Article 180 § 4 provides that if the reporting agent has not complied with his duty to verify the information he has disclosed, he will not be deemed to have acted in good faith.", "25. Article 184 of the Criminal Code increases the sentence by half if the victim is an agent of authority.", "B. Relevant provision of the Statute of the Military Service of the National Republican Guard (Law-Decree no. 297/2009 of 27 November)", "Article 16", "Other duties", "“1. Servicemen of the National Republican Guard also have the following duties:", "...", "( i) to refrain from making statements which could affect the cohesion and reputation of the [National Republican] Guard or which are in breach of the hierarchic and disciplinary principles ...”", "C. Regulation on the disciplinary conduct of the National Republican Guard (Law no. 145/99 of 1 September 1999, in force at the material time)", "Article 10", "Duty of loyalty", "“2. In the exercise of their duty of loyalty, servicemen of the Guard shall:", "( a) truthfully inform their hierarchical superiors about any issue related to their job, when requested to do so;", "( b) when the issue does not fall within their competences, communicate immediately to their hierarchical superiors any service-related faults or acts on the part of other servicemen which are against express legal provisions ...", "( c) in submitting a petition, request, complaint or any other similar written statement, ensure that it is sent to the competent authority and always through the hierarchical channels ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "26. The applicant complained under Articles 6, 7, 10 and 13 of the Convention that his conviction by the domestic courts for aggravated defamation had infringed his right to freedom of expression. The Court, being master of the characterisation to be given in law to the facts of the case, will consider this complaint solely under Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "27. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "28. The applicant submitted that his right to freedom of expression had been breached in that he had been convicted for denouncing an alleged misuse of public money within the National Republican Guard.", "29. He maintained that he had acted in good faith in disclosing the suspicion of alleged misuse of money, as the veracity of the rumour could only be proved by means of an investigation. The only reason for his disclosure was to have the alleged facts investigated.", "30. The applicant acknowledged that he could have used the existing channels within the internal hierarchy [ of the National Republican Guard ] to make the disclosure. However, he contended that the disclosure was made by email to an authority which had competence within the Ministry of Home Affairs to investigate the alleged facts. As such, he had complied with the chain of command. He concluded that demanding that the disclosure of information be made only within the hierarchy of the General Republican Guard would limit freedom of expression.", "31. Referring to the case of Heinisch v. Germany (no. 28274/08, ECHR 2011), the Government contended that the protection of the workplace afforded by Article 10 of the Convention could be guaranteed only when a disclosure of information was made in good faith and favoured the internal channels of disclosure. They considered that the allegations reported by the applicant could have been an issue of public interest given that the alleged misuse of public money was at stake. However, the applicant ’ s allegations were based on a rumour which was none the less investigated by three different entities and not proved.", "32. The Government submitted that the duty of loyalty was particularly binding on servicemen in the National Republican Guard, who were subject to special duties arising from the disciplinary regulations to which they were bound.", "33. The applicant was subject to a chain of command and should have disclosed the allegations to his hierarchical superiors – namely, the commander of his territorial post or the commander of the territorial unit; there were internal channels of disclosure which, where used, had been proven effective.", "34. Lastly, the Government submitted that past events – the fact that the applicant had allegedly been fined by Commander M. C. and that there was a poor relationship between Commander M. C. and the servicemen working at the Arganil territorial post – could lead to suspicion that the applicant may have felt some animosity towards Commander M. C.", "2. The Court ’ s assessment", "35. It has not been disputed that the applicant ’ s conviction by the domestic courts for aggravated defamation constituted interference by the public authorities with his right to freedom of expression under the first paragraph of Article 10 of the Convention. Such interference will constitute a breach of Article 10 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.", "36. The Court observes that the applicant ’ s conviction was based on Article 180 § 1 and Article 184 of the Portuguese Criminal Code, and pursued the legitimate aim of protecting Commander M.C. ’ s reputation.", "37. It remains to be ascertained whether the interference was “necessary” in a democratic society.", "( a ) The principles established by the Court ’ s case-law", "38. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10 § 2, this freedom is subject to exceptions, which must however be constructed strictly, and the need for any restrictions must be established convincingly. The general principles for assessing the necessity of an interference with the exercise of freedom of expression have been summarised recently in Pentikäinen v. Finland ( [GC], no. 11882/10, § 87, ECHR 2015 ) and Bédat v. Switzerland ( [GC], no. 56925/08, § 48, 2 9 March 2016 ).", "39. The Court further reiterates that the protection of Article 10 of the Convention extends to the workplace in general and to the public service in particular (see, among other authorities, Guja v. Moldova [GC], no. 14277/04, § 52, 12 February 2008).", "40. Furthermore, under the Court ’ s case-law, the signaling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja, cited above, § 72 and Heinisch v. Germany, no. 28274/08, § 63, 21 July 2011).", "41. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion. In the light of these duties, disclosure should be made in the first place to the person ’ s superior or other competent authority or body. It is only where this is clearly impracticable that the information can, as a last resort, be disclosed to the public. In assessing whether the restriction on freedom of expression was proportionate, the Court must therefore take into account whether the applicant had any other effective means of remedying the wrongdoing which he or she intended to uncover (see Guja, cited above, § 73; Heinisch, cited above, § 65).", "42. The Court also reiterates that when it is called upon to rule on a conflict between two rights that are equally protected by the Convention, it must weight up the interests at stake. The State is called upon to guarantee both rights and if the protection of one leads to an interference with the other, to choose adequate means to make this interference proportionate to the aim pursued. In this context, the Court accepts that the State has a wide margin of appreciation (see Fernández Martínez v. Spain [GC], no. 56030/07, § 123, ECHR 2014).", "43. In the present case, the Court must ascertain whether the domestic authorities struck a fair balance between, on the one hand, the applicant ’ s right to freedom of expression under Article 10 and, on the other, the protection of reputation of Commander M.C., a right which, as an aspect of private life, is protected by Article 8 of the Convention ( see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, 10 November 2015 ). In this regard, the Court ’ s task is not to take the place of the national courts but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their discretionary powers ( see Stankiewicz and Others v. Poland (no. 2), no. 48053/11, § 36, 3 November 2015 ).", "( b ) Application of the above principles to the present case", "44. Turning to the facts of the present case, the Court agrees with the Government ’ s position that the applicant ’ s allegations could concern an important question of public interest : the possible misuse of public money by a civil servant (see paragraph 31 above). It notes that the defamation claim originated in the applicant ’ s correspondence with the General Inspectorate of Internal Administration, which forwarded the applicant ’ s email to the General Command of the National Republican Guard and to the Lousã public prosecutor ’ s office. In his email, the applicant alleged that Commander M.C. had been misusing public money. He claimed that his intention was to prompt an investigation into the allegations, which he admitted were based on a rumour (see paragraph 7 above).", "45. In order to assess the justification of a statement which is in issue, a distinction must be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, among other authorities, Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 2 2 January 2015).", "46. The Court considers that, in the present case, the applicant ’ s allegations constituted a statement of fact. For a civil servant working for a law - enforcement authority, the accusation that he misused public money was a particularly serious one capable of affecting his reputation and, to an even larger extent, that of the National Republican Guard. Thus, even if the applicant had intended to prompt an investigation, he had to have a factual basis on which to base his allegations. However, he based his allegations on a mere rumour and had no evidence to support them. The Court therefore concludes that the domestic courts ’ finding that he had not acted “in good faith” (see paragraph 9 above) was proportional and justified. In this regard, the situation differs from that examined by the Court in the case Bargão and Domingos Correia v. Portugal (nos. 53579/09 and 53582/09), where the applicants believed that the information disclosed was true and were able to prove it (ibid., §§ 41-42).", "47. In fact, the applicant, knowing that his allegations were based on a rumour, made no attempt to verify their authenticity before reporting them to the General Inspectorate of Internal Administration. The Court notes that the applicant had no evidence to support his allegations and that none of the three different entities which investigated them were able to establish their veracity. Additionally, none of the three entities established that Commander M.C. had committed a criminal act or had acted unlawfully (see paragraphs 9-12 above). The Court further notes that, in the criminal proceedings against the applicant, the domestic courts were not able to establish the existence of the rumour which had given rise to the applicant ’ s allegations (see paragraph 16 above).", "48. As to the addressee of the disclosure, the Court observes that the applicant was aware that he had internal channels within the hierarchy of the National Republican Guard to which he could have reported the rumour – namely, as pointed out by the Government, the commander of his territorial post or the commander of the territorial unit (see paragraph 33 above). Notwithstanding that, he did not convincingly explain why he did not disclose the allegations to a superior. By not doing so, the applicant did not comply with the chain of command and denied his hierarchical superior the opportunity to investigate the veracity of the allegations.", "49. In the light of the above, the instant case has therefore to be distinguished from cases of justified information of the superior or “whistle-blowing”, an action warranting special protection under Article 10 of the Convention (compare with Guja and Heinisch, both cited above).", "50. Finally, as regards the “proportionality” of the sanction, the Court notes that the applicant was ordered to pay a fine of 80 day-fines (EUR 720) plus EUR 1,000 in damages to Commander M.C. Those amounts appear very moderate taking into account the gravity of the applicant ’ s allegations, the harm caused to M.C. and the fact that the applicable maximum fine was 360 days-fine according to Articles 180 and 184 of the Criminal Code. Therefore, the sanction imposed cannot be found disproportionate.", "51. Having regard to the above considerations, the Court considers that the reasons advanced by the domestic courts in support of their decisions were “relevant and sufficient” and that the interference was not disproportionate to the legitimate aim pursued, namely, the protection of reputation. The interference could thus be reasonably considered “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 of the Convention. Therefore, the Court sees no serious reason to substitute its own assessment for that of the domestic courts, which examined the question at issue with care and in line with the principles laid down by the Court ’ s case-law.", "52. Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Letter from the applicants to the highest authorities in the Brčko District", "10. On an unknown date in May 2003 the applicants wrote a letter to the highest authorities of the BD, namely the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD, while the procedure for the appointment of a director of the BD ’ s multi-ethnic public radio station was still pending. In the letter, they voiced their concerns regarding the procedure for the appointment of a director of the BD ’ s multi-ethnic public radio station. They criticised the authorities for having disregarded the principle of proportional representation of ethnic communities in the public service of BD set out in the Statute of BD [3]. In this connection they stated:", "“...We acknowledge and appreciate your support and the effort you put into creating a multi-ethnic radio ... Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb [4] members, one Croat [5] and one Bosniac. Thus, yet again, the (BD) Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded. Parliament established several cases of non-compliance with this principle regarding employment of staff in the public sector, including the BD radio, to the disadvantage of Bosniacs and Croats, and requested that the Governor correct this imbalance. Unfortunately, nothing has been done to correct this. That this is true is confirmed by the unofficial information that Ms M.S. was proposed for the position of the radio ’ s director by the Serb members of the (selection) panel, who are in the majority, although the former director was Bosniac. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position.”", "11. The letter continued as follows:", "“According to our information ( našim informacijama ), the lady in question", "(1) stated in an interview published in ‘ NIN ’ [6], commenting on the destruction of mosques in Brčko, that Muslims were not a people ( Muslimani nisu narod ), that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,", "(2) as an employee of the BD radio demonstratively tore to pieces on the radio ’ s premises ( demonstrativno kidala ) the calendar showing the schedule of religious services during the month of Ramadan,", "(3) on the radio ’ s premises covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,", "(4) as an editor of the cultural programme on the BD radio banned the broadcasting of sevdalinka [7] arguing that that type of song had no cultural or musical value.", "We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of director of the multi-ethnic Radio and Television of Brčko District and that a Bosniac should be appointed to that [radio ’ s director] position, which would be in compliance with the Statute of [BD] and the need to rectify the ethnic imbalance regarding employment in the public sector.", "We hope that you will react appropriately to our letter ...", "In the absence of any action on your part, we will be forced to address the public ( obratiti se javnosti ) and [to contact] international and other competent representatives.”", "12. Soon afterwards, still in May 2003, the letter was published in three different daily newspapers.", "B. Defamation proceedings against the applicants", "1. Court of First Instance", "13. On 29 May 2003 M.S. brought civil defamation proceedings claiming that in the above letter the applicants had made defamatory statements which had damaged her reputation and discredited her as a person and a professional journalist.", "14. At the trial the first-instance court admitted a considerable volume of evidence, including oral statements from seven witnesses (apparently all employees of the BD public radio) regarding the veracity of the four allegations contained in the applicants ’ letter; it also admitted oral statements from the plaintiff and from O.H. and S.C., the members and statutory representatives of two of the applicants.", "15. As described in the judgment of 29 September 2004 (see paragraph 18 below), M.S. stated that she had learned of the letter shortly after it had been sent by the applicants, but that she did not know who had given it to the media. She confirmed that she had removed from the wall in the premises of the radio station the calendar showing the schedule of religious services during the month of Ramadan, but explained that the wall had been used only for work-related announcements. She denied that she had torn up the calendar. As to the coat of arms of Bosnia and Herzegovina, she stated that an invitation card with the coat of arms of Republika Srpska [8] had been placed in a corner of the coat of arms of Bosnia and Herzegovina, but that the latter had not been covered. Lastly, she denied that she had banned the broadcasting of sevdalinka. She argued that all those matters had been taken out of context, that her career as a journalist had been thwarted and that she had been concerned about her professional future.", "16. O.H. confirmed that he had participated in the preparation of the letter and stated that he had found out about the information contained therein from employees of the radio station who had asked him for help. There had been no intention to publish the letter. For that reason, it had been sent to the authorities personally. He did not know how the letter had reached the media.", "17. S.C. stated that most of the information had been brought to his attention by O.H. The letter had been sent to the authorities personally. Their intention had not been to publish the letter in the media. That was why they had indicated in the letter that it concerned allegations and not established facts. Their aim had been to draw the attention of the authorities to errors of M.S., who had been a serious candidate for the post of director of the BD radio.", "18. By a judgment dated 29 September 2004, the BD Court of First Instance dismissed M.S. ’ s action and ordered her to publish the judgment at her expense and to reimburse the trial costs of the applicants. It found that the applicants could not be held responsible because there had been no evidence that they had published the letter in the media. The relevant part of the judgment reads as follows:", "“It is clear that the defendants ’ letter was addressed personally ( upućeno na ruke ) to the Governor, to the President of the Assembly and to the Supervisor for Brčko District ... and it was not sent to the media ... The court established that the aim of the letter was to bring the attention of the authorities to (these) issues and to enable them to draw certain conclusions on verification of that information, and not to publish unverified information.", "Having examined the articles published in the media, the court concludes that none of them was published by [the applicants].”", "2. Court of Appeal", "19. On appeal by M.S., the BD Court of Appeal quashed that judgment on 16 May 2005 and decided to hold a new hearing.", "20. At the hearing before the Court of Appeal M.S. reiterated that the four statements specified above (see paragraph 11 above) had contained untrue and defamatory allegations whose aim had been to portray her as a nationalist and accordingly disqualify her for the post for which she had applied. Not only had she not been appointed to the post, but the letter had had other long-term negative consequences for her.", "21. The applicants argued that they had lacked capacity to be sued because they had not sent the letter to the media and, accordingly, had not expressed or disseminated in public any defamatory statements in respect of the appellant. The letter had been sent to the authorities. By a judgment of 11 July 2007 the BD Court of Appeal dismissed that argument and stated that", "“... a person ’ s reputation can be damaged if someone expresses or disseminates to other people untrue facts or allegations about the past, knowledge, skills or anything else ( and he or she knew or ought to have known that those facts or allegations were untrue ). For these reasons, the court dismisses the respondents ’ arguments that one can be held responsible for defamation only if there was a public announcement or dissemination or publication of (such) statements in the media.”", "22. The applicants further argued that M.S. had been a public servant and that by having taken part in the competition for the position of radio director she had become a public figure. Relying on section 6(5) of the Defamation Act (see paragraph 4 1 below ), the court held as follows:", "“... even if the aggrieved party is a public servant or a candidate for a post in a public body and he or she is generally perceived as having an important influence on public issues of political interest ... (a defendant) is to be held liable for defamation if he knew that a statement was false or negligently disregarded its inaccuracy.”", "23. Referring to the first part of the letter (see paragraph 10 above), the BD Court of Appeal did not go beyond noting that it contained value judgments for which no responsibility could be attributed to the applicants under the Defamation Act. It further quoted the four statements contained in the letter (see paragraph 11 above) and held that these “concerned statements of fact which the defendants were required to prove.” In this connection it re-examined O.H., S.C. and the witnesses who had already given oral evidence before the first-instance court (see paragraph 14 above).", "24. The Court of Appeal also noted that R.S. and O.S., both employees of the BD public radio, had visited one of the applicants in order to discuss M.S. ’ s behaviour in the workplace. On that occasion R.S. had told O.H. that during the month of Ramadan M.S. had detached from the wall in the radio ’ s premises the calendar showing the schedule of religious services. The court noted that the wall had been used for work-related announcements. It also indicated that, at the relevant time, another text, which had not been work-related, had been posted on the wall. O.S. (sound manager in the radio) had told O.H. that on one occasion M.S. had asked him to explain why sevdalinka had been broadcasted during the time reserved in the programme for another type of music. He confirmed that she had removed the Ramadan religious calendar from the wall.", "25. At a meeting held shortly afterwards, O.H. shared the information received from R.S. and O.S. with the other respondents. On that occasion one of the respondents had referred to a newspaper article and the alleged statement of M.S. regarding Muslims and the destruction of mosques. An allegation had been also made that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. S.C. had confirmed having heard people speaking about that in the city.", "26. After analysing the statements of the witnesses and the respondents, the court found that the facts reported in the letter regarding the calendar of religious services during the month of Ramadan and the broadcasting of sevdalinka were untrue, since “the letter obviously did not contain what (R.S. and O.S.) had said about the appellant and her behaviour regarding the religious calendar and the broadcasting of sevdalinka ”. Noting that the allegation that M.S. was the author of the statement published in the newspaper was untrue, the court stated:", "“... on the basis of S.C. ’ s statement [the court establishes] that at the meeting that preceded the preparation of the letter a distinguished member of a [respondent] had informed those attending the meeting that the appellant had given a statement to the newspaper, whose contents were identical to the contents of the letter. On subsequent verification [S.C.] established that such a text had been published, but that the appellant had not been the author ...”", "27. The court further stated that:", "“The respondents also did not prove the truthfulness of the allegation that in her office the appellant had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. On the basis of evidence given by the witnesses examined at the trial (B.S., D.N. and K.P.), [the court] established that the appellant had put an invitation card, which bore the coat of arms of Republika Srpska, in the corner of the coat of arms of Bosnia and Herzegovina ...”", "28. In conclusion, the court stated:", "“By the letter sent to the Office of High Representative BD - International Supervisor of the BD, the President of the BD ’ s Assembly and the Governor of the BD, the respondents damaged the plaintiff ’ s reputation and honour in the place in which she lives and works. They did so by expressing and disseminating to the above persons facts about the appellant ’ s behaviour, actions and statements which they knew or ought to have known were false ...”", "29. The Court of Appeal ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD within 15 days that they retracted the letter, failing which they would have to pay jointly the equivalent of EUR 1,280 in non-pecuniary damages to M.S. They were further ordered to give the judgment to the BD radio and television and to two newspapers for publication at the applicants ’ own expense. As regards the calculation of the amount of non-pecuniary damages, the court stated:", "“When assessing the amount of damages, namely, just satisfaction to be awarded to the appellant, [the court] took into consideration that the impugned facts had been mentioned in the article published in the media ...”", "30. On 15 November 2007 M.S. filed a request with the BD Court of First Instance for enforcement of the above judgment. On 5 December 2007 the Court of First Instance issued a writ of execution.", "31. On 12 December 2007 the applicants paid the equivalent of EUR 1,445 (inclusive of interest and enforcement costs) in enforcement of the judgment of 11 July 2007. On 27 March 2009 the Court of First Instance closed the enforcement proceedings.", "C. Proceedings before the Constitutional Court", "32. On 15 October 2007 the applicants applied to the Constitutional Court of Bosnia and Herzegovina seeking protection of their rights under Article 10 of the Convention.", "33. On 13 May 2010 the Constitutional Court held that the interference with the applicants ’ right to freedom of expression had been “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the Convention. The relevant part of the decision reads as follows:", "“34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law ...", "35. The impugned judgment was delivered in civil defamation proceedings initiated by the respondent against the appellants ... accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”.", "36. What remains to be determined is whether the interference complained of was ‘ necessary in a democratic society ’ ...", "37. With regard to the existence of a ‘ pressing social need ’, the Constitutional Court observes that the impugned (court) decisions concern the letter which the appellants sent to the authorities of the BD and the Supervisor for BD casting the plaintiff (M.S.) in a negative light. The Court of Appeal considered it to be defamation because (the case) concerned statements whose veracity could be verified ... The Constitutional Court notes that the Court of Appeal qualified the impugned statements in the letter as statements of fact and not as value judgments. The Constitutional Court also considers that they are to be regarded statements of fact which should be proved. The appellants failed to do so, as they did not make reasonable efforts to verify the truthfulness of [those] statements of fact before [reporting], but merely made [those statements].", "38. The Constitutional Court considers that the Court of Appeal established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter (concerning the part of the letter in which it was stated that M.S. ‘ made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value ’ ), the Court of Appeal established that there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter. Furthermore, the statement in the impugned letter that M.S. had given an interview concerning the destruction of mosques was refuted by another witness, who submitted that subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, in the present case the public interest that permits reporting on alleged irregularities in the conduct of public officials cannot be based on manifestly untrue factual allegations which impugn their reputation [ and ] which cannot be regarded as criticism that they ought to tolerate in view of their function. Accordingly, the court considers that the Court of Appeal correctly concluded that there was ‘ a pressing social need ’ in the present case [for the interference with the appellants ’ right to freedom of expression].", "39. Furthermore, the Constitutional Court notes that the Court of Appeal awarded non-pecuniary damages to M.S. because her reputation was affected by the untrue statements made in the impugned letter ... The Constitutional Court has already stated in its previous case-law that a person ’ s reputation forms part of his or her personal identity and psychological integrity ...", "...", "43. The appellants ... failed to verify the impugned statements beforehand as was their duty. The Court of Appeal established that the appellants had damaged M.S. ’ s reputation by making untrue allegations which caused her mental distress ...When deciding on the claim in respect of non-pecuniary damage and its amount, the Court of Appeal took into account the purpose of those damages and the rule that it should not favour aspirations that were incompatible with its nature and social purpose.", "44. [T]he Constitutional Court considers that the measure imposed on the appellants in the present case was proportionate to the aim pursued ...The court further considers that the Court of Appeal did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage ... [T]he Constitutional Court finds that the reasons the Court of Appeal gave were ‘ relevant ’ and ‘ sufficient ’ within the meaning of Article 10 of the European Convention.", "45. In view of the above, the Constitutional Court considers that the interference with the appellants ’ right to freedom of expression was ‘ necessary in a democratic society ’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the European Convention.”", "34. On 21 September 2010 the Constitutional Court ’ s decision was served on the applicants.", "D. Other relevant information", "35. According to the minutes of a meeting of the Management Board of the BD ’ s radio station dated 9 May 2003, there were two candidates for the post of the radio ’ s director, one of whom was M.S. The Management Board decided to extend the mandate of the acting director of the radio given that “due to political pressure and repeated voting” no decision could be made in respect of either of the candidates.", "II. 1995 GENERAL FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA (“THE DAYTON AGREEMENT”)", "36. The Dayton Agreement, initialled at the Wright-Patterson Air Force Base near Dayton (the United States of America) on 21 November 1995 and signed in Paris (France) on 14 December 1995, was the culmination of some forty-four months of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the Contact Group. It entered into force on the latter date and contains twelve annexes.", "37. Annex 2 of the Agreement concerns the Agreement on Inter-Entity Boundary Line and Related Issues. The relevant part of this Annex reads as follows:", "“ The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (the ‘ Parties ’ ) have agreed as follows:", "...", "Article V: Arbitration for the Brčko Area", "1. The Parties agree to binding arbitration of the disputed portion of the Inter-Entity Boundary Line in the Brčko area indicated on the map attached at the Appendix.", "2. No later than six months after the entry into force of this Agreement, the Federation shall appoint one arbitrator, and the Republika Srpska shall appoint one arbitrator. A third arbitrator shall be selected by agreement of the Parties ’ appointees within thirty days thereafter. If they do not agree, the third arbitrator shall be appointed by the President of the International Court of Justice. The third arbitrator shall serve as presiding officer of the arbitral tribunal.", "3. Unless otherwise agreed by the Parties, the proceedings shall be conducted in accordance with the UNCITRAL rules. The arbitrators shall apply relevant legal and equitable principles.", "4. Unless otherwise agreed, the area indicated in paragraph 1 above shall continue to be administered as currently.", "5. The arbitrators shall issue their decision no later than one year from the entry into force of this Agreement. The decision shall be final and binding, and the Parties shall implement it without delay.”", "38. Annex 4 of the Agreement sets out the provisions of the Constitution of Bosnia and Herzegovina (see paragraph 39 below).", "VI. Public trust", "B. Public advocacy", "1. Accuracy and in context", "Information that the organization chooses to disseminate to the media, policy makers or the public must be accurate and presented with proper context. This includes information presented by the NGO with respect to any legislation, policy, individual, organization, or project it opposes, supports, or is discussing ...", "2. Verbal and written statements", "The organization shall have clear guidelines and approval processes for the issuing of verbal and written statements.", "3. Disclosure of bias", "The organization shall present information in a fair and unbiased manner. Where a possible bias is unavoidable or inherent, it is to be disclosed.”" ]

[ "III. RELEVANT DOMESTIC LAW", "A. Constitution of Bosnia and Herzegovina", "39. The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace) entered into force on 14 December 1995. Article II of the Constitution, in so far as relevant, reads as follows:", "“3. Enumeration of Rights", "All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include:", "...", "h) Freedom of expression", "... ”", "40. In March 2009 the Parliamentary Assembly of Bosnia and Herzegovina adopted Amendment I to the Constitution (published in the Official Gazette of Bosnia and Herzegovina no. 25/09), which, in so far as relevant, reads as follows:", "“In the Constitution of Bosnia and Herzegovina, after Article VI(3), a new Article VI(4) shall be added and shall read:", "4. Brčko District of Bosnia and Herzegovina", "The Brčko District of Bosnia and Herzegovina, which exists under the sovereignty of Bosnia and Herzegovina and is subject to the responsibilities of the institutions of Bosnia and Herzegovina as those responsibilities derive from this Constitution, whose territory is jointly owned by (a condominium of) the Entities, is a unit of local self-government with its own institutions, laws and regulations, and with powers and status definitively prescribed by the awards of the Arbitral Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko Area. The relationship between the Brčko District of Bosnia and Herzegovina and the institutions of Bosnia and Herzegovina and the Entities may be further regulated by law adopted by the Parliamentary Assembly.”", "B. Defamation Act 2003 ( Zakon o zaštiti od klevete Brčko Distrikta, Official Gazette of BD no. 14/03)", "41. The relevant provisions of the Defamation Act 2003 of BD read as follows:", "Section 2", "“ ...", "(a) the right to freedom of expression, guaranteed by the European Convention on Human Rights..., the Constitution of Bosnia and Herzegovina and the Statute of Brčko District, has a fundamental role in a democratic society, in particular where it concerns matters of political and general interest;", "(b) the right to freedom of expression protects the content of information and the means of transmitting it...", "...", "Section 6", "Whoever causes damage to the reputation of another by asserting or disseminating a falsehood in relation to that person, and by identifying that person to another, shall be liable for defamation.", "For a defamatory statement published in the media the responsible persons shall be the author, the editor-in-chief and the publisher, and any other person who in any other way supervised the content of the publication.", "Liability for defamation in one of the situations referred to above shall be incurred if a falsehood was asserted or disseminated with malice or negligence.", "If a defamatory statement relates to a matter of public interest a defendant shall be liable for defamation if he knew that the statement was false or negligently disregarded its inaccuracy.", "The same standard of responsibility referred to above applies in a situation where a defamatory statement was made in relation to a public servant ... or a candidate for public office ...", "Exemptions from liabilitySection 7", "There is no liability for defamation", "(a) if defamatory statements are value judgments or if they are false only in irrelevant details and are essentially true ...", "...", "(c) if the assertion or dissemination was reasonable.", "...”", "C. Civil Obligations Act 1978 ( Zakon o obligacionim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/8, and Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92, 13/93 and 13/94)", "42. The relevant provision of the Civil Obligations Act 1978 reads as follows:", "Non-pecuniary damagesSection 200", "“ The court shall award non-pecuniary damages for physical pain, mental distress caused by loss of amenities of life, disfigurement, damage to reputation, honour, a breach of liberty or the rights of personality or the death of a close relative, and for fear, if it finds that the circumstances of the case, in particular the intensity of the pain, distress or fear and their duration, justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage.", "When deciding on a claim for non-pecuniary damages and its amount, the court shall take into account ... the purpose of those damages and the rule that it should not favour aspirations that are incompatible with its nature and social purpose.”", "IV. RELEVANT INTERNATIONAL COMPARATIVE MATERIALS", "A. Resolution 1729 (2010), Protection of “whistle-blowers”, Parliamentary Assembly of the Council of Europe, 29 April 2010", "43. The relevant part of the Resolution reads as follows:", "“ 6.3. As regards the burden of proof, it shall be up to the employer to establish beyond reasonable doubt that any measures taken to the detriment of a whistle-blower were motivated by reasons other than the action of whistle-blowing.”", "B. Recommendation CM/Rec(2014)7, Protection of whistle-blowers, Committee of Ministers of the Council of Europe, on 30 April 2014", "44. The relevant part of the Recommendation reads as follows:", "“II. Personal scope", "3. The personal scope of the national framework should cover all individuals working in either the public or private sectors, irrespective of the nature of their working relationship and whether they are paid or not.", "4. The national framework should also include individuals whose work-based relationship has ended and, possibly, where it is yet to begin in cases where information concerning a threat or harm to the public interest has been acquired during the recruitment process or other pre-contractual negotiation stage.”", "C. Fundamental Principles on the Status of Non-governmental Organisations in Europe, Strasbourg, 13 November 2002, Council of Europe, adopted at multilateral meetings held in Strasbourg between 19 November 2001 and 5 July 2002", "45. The relevant parts of this document read as follows:", "“Considering that non-governmental organisations (hereinafter NGOs) make an essential contribution to the development, realisation and continued survival of democratic societies, in particular through the promotion of public awareness and the participatory involvement of citizens in the res publica, and that they make an equally important contribution to the cultural life and social well-being of such societies;", "...", "Considering that their contributions are made through an extremely diverse body of activities which can range from acting as a vehicle for communication between different segments of society and public authorities ...", "Recognising that the operation of NGOs entails responsibilities as well as rights,", "...", "74. NGOs should be encouraged to participate in governmental and quasigovernmental mechanisms for dialogue, consultation and exchange, with the objective of searching for solutions to society ’ s needs.”", "D. Code of Ethics and Conduct for NGOs, World Association of Non ‑ Governmental Organisations (WANGO), 2004", "46. The relevant parts of the Code read as follows:", "“C. Human Rights and Dignity", "An NGO should not violate any person ’ s fundamental human rights, with which each person is endowed.", "...", "F. Truthfulness and Legality", "An NGO should give out accurate information, whether regarding itself and its projects, or regarding any individual, organization, project, or legislation it opposes or is discussing.", "THE LAW", "I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER", "47. In their memorials lodged with the Court and oral pleadings before the Grand Chamber, the applicants raised complaints under Articles 6, 9, 10, 13 and 14 of the Convention.", "48. The Government maintained that the present case concerned only the applicants ’ complaint under Article 10 of the Convention and that other issues raised by the applicants could not be the subject of examination by the Court.", "49. The Court reiterates that the “case” referred to the Grand Chamber is the application as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII; Janowski v. Poland [GC], no. 25716/94, §§ 19 and 20, ECHR 1999 ‑ I; Pentikäinen v. Finland [GC], no. 11882/10, § 81, ECHR 2015; and Murray v. the Netherlands [GC], no. 10511/10, § 88, ECHR 2016 ).", "50. In the present case it notes that the complaints under Articles 6, 9, 13 and 14 did not form part of the application which was declared admissible by the Chamber in its judgment of 13 October 2015. Accordingly, the Court will limit its examination to the applicants ’ complaint under Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "51. The applicants complained that their punishment, in the context of civil liability for defamation, violated their right to freedom of expression as guaranteed by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "52. The Chamber found that the decisions of the domestic courts amounted to “an interference” with the applicants ’ freedom of expression as guaranteed by Article 10 of the Convention, and that such an interference had been “prescribed by law” and pursued a legitimate aim, namely that of the protection of M.S. ’ s reputation.", "53. It was satisfied that the domestic courts had made a distinction between statements of facts and value judgments and that, relying on the available evidence, they had correctly concluded that the applicants had acted negligently by simply reporting M.S. ’ s alleged misconduct without making a reasonable effort to verify the accuracy of those allegations. Furthermore, it found that the award of damages made against the applicants had not been disproportionate. It concluded therefore that the domestic courts had struck a fair balance between M.S. ’ s right to reputation and the applicants ’ right to report irregularities about the conduct of a public servant to the body competent to deal with such complaints and that the reasons given to justify their decisions had been “relevant and sufficient” and met a “pressing social need”. Accordingly, it held that there had been no violation of Article 10 of the Convention.", "B. The parties ’ submissions", "1. The applicants", "54. The applicants maintained that the impugned correspondence had been a private and confidential letter sent to the competent authorities with a direct institutional interest in the matter. It concerned allegations regarding a prospective candidate for the post of director of the BD public radio, who was to be regarded as a public official. The appointment of the director of the BD public radio was a matter of public concern. Given that the limits of acceptable criticism in respect of public servants were wider, M.S. had to display a greater degree of tolerance. Furthermore, the letter had not contained a definite statement of facts. The authorities had a duty to evaluate “the unofficial information” contained therein and act accordingly.", "55. In their oral pleadings before the Grand Chamber, the applicants submitted that section 6 of the Defamation Act had not been sufficiently precise to enable them to foresee that it applied to their case, which concerned the reporting of irregularities to the relevant authorities. The domestic courts had failed to strike a fair balance between M.S. ’ s right to reputation and their freedom of expression. According to the applicants, people were entitled, in the discharge of their civic duties, to bring relevant information to the attention of the authorities and to use even harsh and disturbing language in order to prompt them to verify such information and ensure good governance. The authorities had to maintain confidence in civil administration by encouraging citizens to take action in resolving problems in society. Their letter had contained value judgments about M.S. ’ s professional and moral qualities for the job for which she had applied.", "56. They further submitted that M.S. had suffered no harm. The letter had not been intended for the wider public and they had not sent it to the media. Any responsibility in that respect was to be imputed either to the recipients of the letter or to M.S.", "57. The Court of Appeal had not made any mention of the fact that at the time M.S. had not been a director and accordingly had had no power to remove the calendar of religious services from the wall in the radio station. Furthermore, that judgment had not addressed their arguments that the Statute of the BD had not allowed official symbols (coat of arms) of an Entity of Bosnia and Herzegovina (Republika Srpska, in the present case) to be displayed in the premises of public institutions.", "2. The Government", "58. The Government maintained that the impugned letter contained no indication that it had been of a confidential nature. None of the authorities to whom the applicants had complained had any competence regarding the procedure for the appointment of the BD ’ s radio director. According to the legislation which had been applicable at the time, the Management Board of the BD radio had been competent to decide on the appointment and dismissal of the radio director.", "59. The Government further submitted that in the impugned letter the applicants had made very serious accusations against M.S., a public servant whose religious and ethnic background had been different from the applicants ’ background. The applicants were associations who enjoyed a good reputation and their distinguished members were expected to make some effort to verify the veracity of their statements. The absence of any such effort on their part demonstrated a lack of social responsibility. This concerned in particular their failure to verify whether M.S. had been the author of the interview reported in their letter. The particular circumstances at a time when the ultimate interest in the multi-ethnic society had been to maintain peace and build mutual confidence in post-war Bosnia and Herzegovina had required the applicants to be more vigilant when making such serious accusations. Since the building of public confidence in public institutions and public servants had been of particular importance in the multi-ethnic, post-conflict society that Bosnia and Herzegovina had been at the time, people were required to refrain from making false statements, either intentionally or negligently, in particular if those statements concerned religious or ethnic issues. The applicants, as Bosniac non-governmental organisations, had acted as lobbyists for the Bosniac candidate for the post of the radio ’ s director. The letter had served at the time as a means of political pressure, which had led the Management Board of the radio not to appoint any of the prospective candidates, that is neither M.S., as a representative of the Serbs, nor the other candidate, who had been Bosniac.", "60. The Government confirmed that the publication of the letter in the media had not been relied on by the domestic courts in finding the applicants responsible for defamation. Since the letter had been leaked to the public, the harm caused to M.S. ’ s reputation by the communication of unverified and false information to the authorities had been aggravated. The domestic courts had relied on the publication of the letter in determining the amount of non-pecuniary damages awarded to M.S. The Government indicated that letters sent to the authorities in the respondent State were frequently leaked to the public before the authorities could take any measure with respect to the information received. Given that sources of information to the media enjoyed a high level of legal protection, the identity of people who provided “private and confidential information” to the media remained undisclosed.", "61. The Government concluded that the domestic courts, having found for M.S., had struck a fair balance between the competing rights and freedoms, as well as between the legitimate aim pursued and the means employed.", "3. The third-party interveners", "62. In joint submissions CREDOF and the association Blue Print for Free Speech argued that the present case was appropriate to supplement the relevant criteria for the protection of the freedom of speech of whistle ‑ blowers established in the Court ’ s case-law. They submitted that whistle-blowers who “report” information to the competent authorities should enjoy equal protection to whistle-blowers who “disclose” information in public. Whistle-blowers who reported alleged irregularities to the authorities by means of private correspondence, as in the present case, should not bear an excessive burden to prove the veracity of the information provided. Relevant legal instruments of the Council of Europe and the Court ’ s case-law required a low standard of proof of the facts denounced by whistle-blowers, the aim of which was to encourage the revelation of facts of general interest and an inquiry by the State into those facts. In their view, instead of placing the burden on the whistle-blowers to prove the veracity of the facts reported, it was necessary to enable the State to inquire into the facts reported. In this connection they submitted that whistle-blowing was a mechanism for the advancement of democratic accountability designed to encourage the receipt and processing of reports by the persons best placed to resolve the problem concerned.", "63. The standard of proof required in cases of public disclosure of information by whistle-blowers was no more than a “sufficient factual basis”, the latter being assessed in the light of the whistle-blower ’ s personal experience. In cases where information was reported to the competent authorities, the damage caused to persons or institutions by potentially defamatory allegations was less severe than in the case of public disclosure, in view of the more restricted circle of addressees. The more limited effect of such reporting was a ground for a more indulgent requirement of moderation of expression. Affording a lower level of protection to citizens who reported information to the authorities would have a chilling effect on the freedom of expression and would encourage the leaking of information to the public to the detriment of reporting to the competent authorities.", "64. The third-party interveners further submitted that the obligation of the authorities to investigate the information divulged was the corollary of the principle of the indivisibility of human rights and the positive obligations placed upon the States. Only an inquiry by the authorities into the veracity of the allegations revealed by whistle-blowers could bring to light all aspects of the issue, to which the whistle-blower generally had only partial access.", "65. Lastly, the third-party interveners underlined that the damage to the reputation of public officials resulting from public disclosures was more severe than was the case when information was reported to the competent authorities. Accordingly, the Court should be more attentive when assessing the proportionality of penalties imposed upon whistle ‑ blowers who confined themselves to reporting information in private correspondence to the competent authorities.", "B. The Court ’ s assessment", "1. Existence of an interference", "66. The Court considers that the impugned decision of the BD Court of Appeal holding the applicants liable for defamation and ordering them to retract the letter, failing which they would have to pay non-pecuniary damages to M.S., constituted an interference with their right to freedom of expression under the first paragraph of Article 10 of the Convention.", "67. Such interference, in order to be permissible under the second paragraph of Article 10, must be “prescribed by law”, pursue one or more legitimate aims and be “necessary in a democratic society” for the pursuit of such aim or aims.", "2. Whether the interference was prescribed by law", "68. The expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I).", "69. It was not disputed between the parties that the interference with the applicant ’ s right to freedom of expression had a legal basis in the domestic law – section 6 of the Defamation Act 2003 (see paragraph 4 1 above) – and that the relevant law was accessible. However, in their oral pleadings before the Grand Chamber the applicants argued that the application of section 6 of the Defamation Act to their case had not been sufficiently foreseeable for the purposes of Article 10 § 2 of the Convention.", "70. In this regard the Court reiterates that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he or she must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 124, ECHR 2016 (extracts), and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015).", "71. Turning to the present case, the Court sees no need to pronounce itself on the belatedness of the applicants ’ submission disputing the foreseeability of the relevant national law, as it is in any event unsubstantiated for the following reasons. It observes that the applicants presented no legal arguments, based on the terms of the national legal provisions or on national case-law, to indicate that their case fell outside the scope of application of the general rule in section 6(1) of the Defamation Act 2003 governing the circumstances in which a person could be held liable for defamation (see paragraph 4 1 above). In its judgment of 11 July 2007, the BD Court of Appeal found that the impugned four statements contained in the applicants ’ letter (see paragraph 11 above) constituted an expression or dissemination giving rise to an actionable claim in defamation (see paragraph 21 above). The Constitutional Court of Bosnia and Herzegovina also accepted that section 6 of the Defamation Act 2003 applied to the applicants ’ private correspondence with the BD authorities (see paragraph 33 above). They accepted accordingly that dissemination did not necessarily entail diffusion through media. While it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I), the Court finds nothing to suggest that the applicants were not in a position to foresee, to a reasonable degree, the national appellate court ’ s interpretation and application of section 6 of the Defamation Act 2003 to their case.", "72. Against this background, the Court is satisfied that section 6 of the Defamation Act 2003 met the required level of precision and that, accordingly, the interference was “prescribed by law”.", "3. Whether the interference pursued a legitimate aim", "73. There was no dispute between the parties that the interference complained of pursued a legitimate aim, namely “the protection of the reputation or rights of others”. The Court finds no reason to reach a different conclusion on this issue.", "4. Necessary in a democratic society", "74. It remains to be determined whether the interference complained of was “necessary in a democratic society”, which is the central issue in this case. In doing so, the Court has to examine whether the national courts struck a fair balance between the applicants ’ right to freedom of expression guaranteed under Article 10 of the Convention and M.S. ’ s interest in the protection of her reputation.", "(a) General principles", "i. On the application of the requirement in Article 10 § 2 of the Convention that an interference be “necessary in a democratic society”", "75. The general principles for assessing the necessity of an interference with the exercise of freedom of expression were recently summarised in Bédat v. Switzerland [GC] (no. 56925/08, § 48, ECHR 2016) as follows:", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "ii. Protection of reputation under Article 8 of the Convention", "76. Furthermore, it may be reiterated that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life. The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers also the physical and psychological integrity of a person. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and A. v. Norway, no. 28070/06, § 64, 9 April 2009 ). On the other hand, Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one ’ s own actions, such as, for example, the commission of a criminal offence (see Axel Springer, cited above, § 83 and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII).", "iii. On the balancing of Article 10 and Article 8 of the Convention", "77. In instances where, in accordance with the criteria set out above, the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting the two values guaranteed by the Convention, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8. The general principles applicable to the balancing of these rights were first set out in Von Hannover v. Germany (no. 2) [GC] (nos. 40660/08 and 60641/08, §§ 104-07, ECHR 2012) and Axel Springer AG (cited above, §§ 85-88), then restated in more detail in Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, §§ 90-93, ECHR 2015 (extracts)) and more recently summarised in Perinçek v. Switzerland [GC] (no. 27510/08, § 198, ECHR 2015 (extracts)) as follows:", "“(i) In such cases, the outcome should not vary depending on whether the application was brought under Article 8 by the person who was the subject of the statement or under Article 10 by the person who has made it, because in principle the rights under these Articles deserve equal respect.", "(ii) The choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the High Contracting Party ’ s margin of appreciation, whether the obligations on it are positive or negative. There are different ways of ensuring respect for private life and the nature of the obligation will depend on the particular aspect of private life that is at issue.", "(iii) Likewise, under Article 10 of the Convention, the High Contracting Parties have a margin of appreciation in assessing whether and to what extent an interference with the right to freedom of expression is necessary.", "(iv) The margin of appreciation, however, goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the Court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied on.", "(v) If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for theirs.”", "(b) Approach to be adopted by the Court in the present case", "78. In order to determine the approach to be applied in the present case, the Court has to look at the interference complained of in the light of the case as a whole, including the form in which the remarks held against the applicants were conveyed, their content and the context in which the impugned statements were made (see Stankiewicz and Others v. Poland, no. 48723/07, § 61, 14 October 2014, and Nikula v. Finland, no. 31611/96, §§ 44 and 46, ECHR 2002 ‑ II ).", "i. Whether the Article 10 right is to be balanced against the Article 8 right", "79. The Court notes that it has not been submitted, nor does it appear, that the accusations made against M.S. in the applicants ’ letter concerned conduct that was regarded as criminal under domestic law ( see, conversely, White v. Sweden, no. 42435/02, § 25, 19 September 2006; Sanchez Cardenas v. Norway, no. 12148/03, §§ 37-39, 4 October 2007; Pfeifer v. Austria, no. 12556/03, §§ 47-48, 15 November 2007; and A. v. Norway, cited above, § 73). However, it finds that accusing M.S. of being disrespectful in regard to another ethnicity and religion was not only capable of tarnishing her reputation, but also of causing her prejudice in both her professional and social environment (see paragraph 10 4 below). Accordingly, the accusations attained the requisite level of seriousness as could harm M. S. ’ s rights under Article 8 of the Convention (see, mutatis mutandis, Dorota Kania v. Poland (no. 2), no. 44436/13, § 73, 4 October 2016, which concerned accusations made against a university rector that he had been a secret collaborator with the communist-era security services). The Court therefore must verify whether the domestic authorities struck a fair balance between the two values guaranteed by the Convention, namely, on the one hand, the applicants ’ freedom of expression protected by Article 10 and, on the other, M.S. ’ s right to respect for her reputation under Article 8 (see Axel Springer AG [GC], cited above, § 84).", "ii. Relevance of the Court ’ s case-law regarding whistle-blowing", "80. The Court has further considered whether the applicants ’ reporting could be qualified, as argued by the third-party interveners, as whistle-blowing, as this phenomenon has been defined in its case-law. However, the Court notes that the applicants were not in any subordinated work-based relationship with the BD public radio (see paragraphs 4 3 and 4 4 above) which would make them bound by a duty of loyalty, reserve and discretion towards the radio, which are particular features of this concept as defined in its case-law (see, by contrast, Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008; Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013; and Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)). The applicants, who were not employees of the BD radio station, had no exclusive access to and direct knowledge of that information (see Aurelian Oprea v. Romania, no. 12138/08, § 59, 19 January 2016), but they apparently acted as “a vehicle for communication” (see paragraph 4 5 above) between the radio ’ s employees (regarding the alleged misconduct of M.S. in the workplace) and the BD authorities. No information has been submitted to the effect that those employees suffered any repercussions as a consequence of their signalling of the alleged wrongdoing (ibid.). Neither did the applicants argue that their letter had to be regarded as whistle ‑ blowing (see, in contrast, Guja, cited above, § 60; Heinisch, cited above, § 43; and Aurelian Oprea, cited above, § 45 ). In the absence of any issue of loyalty, reserve and discretion, there is no need for the Court to enquire into the kind of issue which has been central in the above case-law on whistle-blowing, namely whether there existed any alternative channels or other effective means for the applicants of remedying the alleged wrongdoing (such as disclosure to the person ’ s superior or other competent authority or body) which the applicants intended to uncover (compare Guja, cited above, § 73).", "iii. Relevance of the Court ’ s case-law concerning the reporting on alleged irregularities in the conduct of State officials", "81. It is nonetheless significant that what prompted M.S. to bring the defamation proceedings was the contents of the applicants ’ letter to the highest authorities in BD, in which they complained about M.S., who at the material time was an editor of the BD public radio ’ s entertainment programme and one of the candidates for the post of director of that radio station. Given that the radio was public and relied on State funding, it is not in doubt that she was to be regarded as a public servant. The Government maintained the same position (see paragraph 5 9 above).", "82. In this connection the Court finds particularly noteworthy the approach followed by the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 33 above), relying in substance on Convention case-law developed in a comparable group of cases where the Court found on the facts that “the requirements of protection under Article 10 of the Convention ha[d] to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicants ’ right to report alleged irregularities in the conduct of State officials” (see Zakharov v. Russia, no. 14881/03, § 23, 5 October 2006; Siryk v. Ukraine, no. 6428/07, § 42, 31 March 2011; Sofranschi v. Moldova, no. 34690/05, § 29, 21 December 2010; Bezymyannyy v. Russia, no. 10941/03, § 41, 8 April 2010; Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008; and Lešník v. Slovakia, no. 35640/97, ECHR 2003 ‑ IV). An important consideration in this line of case-law is that “it is one of the precepts of the rule of law” that “citizens should be able to notify competent State officials about the conduct of civil servants which to them appears irregular or unlawful” (see Zakharov, § 26; Siryk, § 42; Sofranschi, § 30; Bezymyannyy, § 40; Kazakov, § 28; and mutatis mutandis, Lešník, § 60; all cited above). Both the foregoing principle and the judgments applying it show that the Court has been prepared to assess an applicant ’ s good faith and efforts to ascertain the truth according to a more subjective and lenient approach than in other types of cases (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 87, ECHR 2004 ‑ XI).", "83. At the same time it should be emphasised that in the above ‑ mentioned rulings a crucial factor in the Court ’ s proportionality assessment was the fact that the impugned defamatory statements had been made by way of private correspondence addressed by the applicant to the hierarchical superior of the aggrieved party concerned (compare Siryk, cited above, § 42; Bezymyannyy, cited above, § 41; Kazakov, cited above, § 28; Zakharov, cited above, § 23; and Lešník, cited above) or to State officials (compare Sofranschi, cited above, § 29). In some of these cases, the disputed allegations had resulted from the applicants ’ direct personal experience ( Siryk concerned allegations by the applicant that officials of the Tax Service Academy, where her son had studied, had demanded a bribe from her; in Bezymyannyy the applicant had reported the alleged unlawful conduct of a judge who had adjudicated his case; in Kazakov a former army officer had sent a letter of complaint alleging unlawful conduct on the part of a military unit commander; in Lešník the applicant had complained of abuse of office and corruption regarding a public prosecutor who had rejected his criminal complaint against a third person), while in others they had been submitted by applicants who had not been directly involved in the matters complained of ( Zakharov concerned a complaint by an individual that a town official had abused her office and had facilitated land usurpation; in Sofranschi the applicant, who was a member of the electoral staff of a candidate for the position of mayor of their village, had written a letter criticising another candidate).", "84. Thus, as can be seen from the foregoing analysis, there are a number of similarities between the Zakharov -type cases and the present one. However, as will be explained below, there are also certain distinctive features, which militate in favour of adopting a more nuanced approach based on further criteria.", "iv. Relevance of the Court ’ s case-law concerning defamation of public officials and the role of NGOs and the press", "85. In particular, unlike in the above-cited cases, the allegations which the applicants had laid before the authorities in the present case had not been made by a private individual but by four NGOs and had not been based on direct personal experience.", "86. From the outset, it should be underlined that the role of an NGO reporting on alleged misconduct or irregularities by public officials is no less important than that performed by an individual according to the Zakharov line of authority, even where, as in the present instance, it is not based on direct personal experience. Indeed, the Court has accepted that when an NGO draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press (ibid., and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 166, 8 November 2016 ). It has recognised that civil society makes an important contribution to the discussion of public affairs (see, for instance, Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005 ‑ II, and Magyar Helsinki Bizottság, cited above, § 166 ). It is also noteworthy that the Fundamental Principles on the Status of Non-Governmental Organisations cited at paragraph 4 5 above underline the important contribution of NGOs “to the development, realisation and continued survival of democratic societies” and the need for such societies to “encourage [NGOs] to participate in ... mechanisms for dialogue, consultation and exchange”.", "87. At the same time it should not be overlooked that, in a comparable way to the press, an NGO performing a public watchdog role is likely to have greater impact when reporting on irregularities of public officials, and will often dispose of greater means of verifying and corroborating the veracity of criticism than would be the case of an individual reporting on what he or she has observed personally. In the area of press freedom the Court has held that “by reason of the ‘ duties and responsibilities ’ inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” (see Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ). Recently, in the above-cited case of Magyar Helsinki Bizottság, the Court affirmed that the same considerations would apply to an NGO assuming a social watchdog function (§ 159). A similar view is reflected in the Code of Ethics and Conduct for NGOs cited at paragraph 4 6 above, according to which “an NGO should not violate any person ’ s fundamental human rights”, “should give out accurate information ... regarding any individual” and “the information that [an NGO] chooses to disseminate to ... policy makers ... must be accurate and presented with proper context”.", "v. Conclusion", "88. Accordingly, the present case reveals a need to have regard to a broader range of factors than in the Zakharov -type cases, in which the Court attributed “crucial importance” to the fact that applicants addressed their complaints by way of private correspondence (see Zakharov, § 26; Sofranschi, § 33; and Kazakov, § 29, all cited above, and Raichinov v. Bulgaria, no. 47579/99, § 48, 20 April 2006 ) and accepted a relatively lenient burden on the applicant to ascertain their veracity (see paragraph 8 2 above). In balancing the competing interests involved, namely the applicants ’ right to freedom of expression against M.S. ’ s right to respect for her private life (see paragraph 7 9 above), the Court finds it appropriate to take account also of the criteria that generally apply to the dissemination of defamatory statements by the media in the exercise of its public watchdog function, namely the degree of notoriety of the person affected; the subject of the news report; the content, form and consequences of the publication; as well as the way in which the information was obtained and its veracity, and the gravity of the penalty imposed (see Von Hannover, cited above, §§ 108-13, ECHR 2012; Axel Springer AG, cited above, §§ 89-95; and Couderc and Hachette Filipacchi Associés, cited above, § 93).", "(c) Application of the above principles and criteria in the present case", "89. The Court will examine the factors relevant to the present case in turn in order to determine whether the interference, seen as a whole, was supported by relevant and sufficient reasons and was proportionate to the legitimate aim pursued.", "i. Private nature of the correspondence", "90. The Court notes that the domestic courts ’ examination was confined to the private correspondence between the applicants and the State officials. Indeed, the Court of Appeal ’ s finding that the applicants were liable for defamation was based only on “the letter sent to the Office of High Representative BD - International Supervisor of the BD, the President of the BD ’ s Assembly and the Governor of the BD ... [in which they] expressed and disseminated to the above persons facts about the plaintiff ’ s behaviour, actions and statements ...” (see paragraph 28 above). The Constitutional Court confirmed that the “impugned [court] decisions concern[ed] the letter which the [applicants] sent to the authorities of the BD and the Supervisor for BD casting the plaintiff (M.S.) in a negative light” (see paragraph 33 above). The fact that the applicants ’ letter was published in local newspapers played no role in the domestic courts ’ finding regarding the applicants ’ liability for defamation, as it was not proven that they had been responsible for its publication. That was confirmed by the Government in their memorials (see paragraph 60 above).", "91. The Court is also of the opinion that the applicants ’ liability for defamation should be assessed only in relation to their private correspondence with local authorities, rather than the publication of the letter in the media (see Bezymyannyy, cited above, § 37) or any other means (see Sofranschi, cited above, § 28, which concerned spreading the impugned rumours among villagers).", "ii. Public interest involved in the information contained in the letter", "92. A relevant factor to be taken into consideration is whether the information contained in the applicants ’ letter concerned an issue of public interest. This depends on a broader assessment of the subject matter and the context of the letter (see Bladet Tromsø and Stensaas, cited above, § 63; Björk Eiðsdóttir v. Iceland, no. 46443/09, § 67, 10 July 2012, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007).", "93. The Court notes that in the letter the applicants were critical of the extent to which the national authorities complied with the principle of proportional representation of ethnic communities in the BD ’ s public service (see paragraph 10 above). They referred to previous cases of non-compliance with that principle, which allegedly had been to the disadvantage of Croats and Bosniacs in the BD. Those cases also involved employment of staff in the BD radio station. In this connection they challenged the candidature of M.S. for the post of the radio ’ s director allegedly submitted by the majority members of the selection panel, who had been Serbs. They alleged that she had been involved in disparaging behaviour towards ethnic Bosniacs.", "94. The Court considers that there can be no doubt that any discussion concerning the ethnic balance of employees in the public service was important and fell within the public domain. A high standard of public service in which civil servants, in particular those who were “generally perceived as having an important influence on public issues of political interest” (see paragraph 22 above), were respectful of the ethnic and religious identity of those living in Bosnia and Herzegovina was an important issue of public concern. The particular importance that any ethnic- or religious-related issue had at the relevant time in Bosnian society, as argued by the Government, was further evidence that the letter, seen as a whole, concerned matters of public concern in the BD. These issues were at least of considerable concern for the Bosniacs, represented by the applicants, who, as transpired from the letter, considered themselves under-represented in the public service (see Albert-Engelmann-Gesellschaft mbH v. Austria, no. 46389/99, § 30, 19 January 2006).", "iii. Recipients of the letter competent to receive the information", "95. The Court notes that the authorities contacted by the applicants did not have direct competence in the proceedings for the appointment of the radio ’ s director (see paragraph 35 above). However, it accepts that they had a legitimate interest in being informed about the matters raised in the letter. The Government did not submit otherwise.", "iv. The manner in which the applicants reported the alleged irregularities to the relevant authorities", "96. The Court will focus its examination on the applicants ’ allegations against M.S., which were the sole basis on which the domestic courts relied in finding the applicants liable for defamation (see paragraph 23 above and § 33 of the Chamber judgment). The relevant statements read as follows:", "“According to our information ( našim informacijama ) the lady in question", "(1) stated in an interview published in ‘ NIN ’, commenting on the destruction of mosques in Brčko, that Muslims were not a people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,", "(2) as an employee of the BD radio demonstratively tore to pieces ( demonstrativno kidala ) on the radio ’ s premises the calendar showing the schedule of religious services during the month of Ramadan,", "(3) on the radio ’ s premises covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,", "(4) as an editor of the cultural programme on BD radio banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value.”", "97. The domestic courts (both the BD Court of Appeal and the Constitutional Court of Bosnia and Herzegovina) qualified these allegations as statements of fact (and not as value judgments). Noting that the impugned statements essentially described words and deeds allegedly imputed to M.S., the Court does not see any grounds to find otherwise.", "α) How well known was the person concerned and what was the subject of the allegations", "98. It is to be noted that the above allegations concerned M.S., who, at the time, was an employee of the BD radio station and, accordingly, a public servant (see paragraph 8 1 above). The Court reiterates that civil servants acting in an official capacity are subject to wider limits of acceptable criticism than ordinary individuals (see Morice v. France [GC], no. 29369/10, § 131, ECHR 2015 ). Given the nature of the post which M.S. held at the relevant time (an editor of the entertainment programme), it cannot be said that those limits were as wide as in the case of politicians (see Pedersen and Baadsgaard, cited above, § 80; Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001 ‑ III; and Janowski, cited above, § 33). However, the Court notes that M.S., by having applied for the post of the radio ’ s director and bearing in mind also the public interest involved in the information contained in the letter (see paragraph 9 4 above), must be considered to have inevitably and knowingly entered the public domain and laid herself open to close scrutiny of her acts. The BD Court of Appeal also accepted that M.S. was a civil servant and that the post of the radio ’ s director was to be regarded as being of a particular public concern (see paragraph 22 above). In such circumstances, the Court considers that the limits of acceptable criticism must accordingly be wider than in the case of an ordinary professional (see, mutatis mutandis, Björk Eiðsdóttir, cited above, § 68, and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 65, 10 July 2012).", "99. As noted above (see paragraph 9 6 above), the impugned four statements contained allegations of wrongdoing on the part of M.S. in the workplace and a comment in a newspaper, of which she allegedly was the author, and which showed contempt for different ethnic and religious segments of Bosnian society.", "β) Content, form and consequences of the information passed on to the authorities", "100. For the assessment under this head, an important factor is the wording used by the applicants in the impugned letter. In this connection the Court notes that the applicants did not explicitly say in the letter that part of the information which they passed on to the authorities had emanated from other sources (employees of the radio station) (see Thoma, cited above, § 64, and Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65, Series A no. 239), without there being any obligation to identify that source (see Albert-Engelmann-Gesellschaft mbH, cited above, § 32). The applicants had introduced their letter with the words “according to our information”, but had not clearly indicated that they had acted as messengers. Therefore they implicitly presented themselves as having direct access to that information (see Verdens Gang and Aase v. Norway (dec.), no. 45710/99, ECHR 2001 ‑ X; compare Thoma, cited above, § 64). In these circumstances, they assumed responsibility for the statements included in their letter.", "101. Similar considerations apply to the allegation that in her office M.S. had covered the State coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska, which, as established in the defamation proceedings, was based on a rumour (see paragraph 25 above) (see Tønsbergs Blad A.S. and Haukom, cited above, § 95). The Court will revert to this issue later in its analysis of the applicants ’ duty of care to verify the veracity of the impugned information.", "102. Another important factor is whether the thrust of the impugned statements was primarily to accuse M.S. or rather to notify the competent State officials of conduct which to them appeared irregular or unlawful (see Zakharov, cited above, § 26). In its contextual examination of the disputed letter as a whole, the Court must carry out its own evaluation of the impugned statements (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, §§ 25-26, 22 February 2007).", "103. The applicants maintained that their intention had been to inform the competent authorities about certain irregularities and to prompt them to investigate and verify the allegations made in the letter (see paragraphs 17 and 53 above). The Court notes, however, that the impugned letter did not contain any “request” for investigation and verification of the allegations. Whilst the applicants expressed their expectation that the authorities “would react appropriately to [their] letter” (see paragraph 11 above), it is uncertain whether that expression concerned investigation or verification of the factual allegations about M.S. In any event, the Court cannot but note the applicants ’ statement in the letter that “a Bosniac should be appointed to that [radio ’ s director] position” (see paragraph 11 above).", "104. As to the consequences of the above accusations passed on to the authorities, the Court considers that there can be little doubt that when considered cumulatively and against the background of the specific context in which they were made (see paragraph 5 9 above), the conduct attributed to M.S. was to be regarded as particularly improper from a moral and social point of view. The allegations cast M.S. in a very negative light and were liable to portray her as a person who was disrespectful and contemptuous in her opinions and sentiments about Muslims and ethnic Bosniacs. The domestic courts held that the statements in question contained defamatory accusations that damaged M.S. ’ s reputation (see paragraph 28 above). The Court sees no reason to hold otherwise. On the contrary, the nature of the accusations was such as to seriously call into question M.S. suitability not only for the post of director of the BD radio for which she had applied, but also for her role as editor of the BD ’ s radio entertainment programme in a multi-ethnic public radio station.", "105. That these allegations were submitted to a limited number of State officials by way of private correspondence did not eliminate their potential harmful effect on the career prospects of M.S. as a civil servant and her professional reputation as a journalist. The Government argued that the impugned letter had served “as a means of political pressure” that had prevented the selection panel from appointing either of the candidates for the post. Without drawing any inferences as to whether the impugned statements in the letter played any role in the selection procedure that was ongoing at the time, the Court observes that M.S. was not appointed to the post of director of the BD radio.", "106. Lastly, the Court notes that the applicants ’ defamatory accusations about M.S. had been leaked to the press. Any conclusion as to how the impugned letter in the present case reached the media would veer precariously close to speculation. Irrespective of how the letter reached the media, it is conceivable that its publication opened a possibility for public debate and aggravated the harm to M.S. ’ s dignity and professional reputation.", "γ ) The authenticity of the information disclosed", "107. Another, and in the Court ’ s view, the most important factor relevant for the balancing exercise in the present case is the authenticity of the information passed on to the authorities.", "108. The Court refers to its finding that the activities of the applicants, who were playing the role of social watchdogs, warrant similar Convention protection to that afforded to the press (see paragraph 8 7 above). In the context of press freedom, the Court has held that special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, Bladet Tromsø and Stensaas, § 66; Pedersen and Baadsgaard, § 78, and Björk Eiðsdóttir, § 70, all cited above). These factors, in turn, require consideration of other elements such as whether the newspaper had conducted a reasonable amount of research before publication (see Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper presented the story in a reasonably balanced manner (see Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000 ‑ IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves (ibid., § 58).", "109. Similarly to newspapers, the Court considers that the applicants in the present case were bound by the requirement to verify the veracity of the allegations submitted against M.S. This requirement is inherent in the Code of Ethics and Conduct for NGOs (see paragraphs 4 6 and 8 6 above) and it is to be seen in the context of the “responsibilities” in the operation of NGOs (see paragraph 4 5 above). That the impugned allegations were communicated to the State authorities by means of private correspondence, albeit an important consideration, did not confer wholly unrestricted freedom on the applicants to submit unverified aspersions. The duty of the authorities to verify such allegations cannot be regarded as a substitute for the ordinary obligation of verification of factual statements that are defamatory, even of public officials. That the applicants were perceived (see paragraph 16 above) – and, indeed, acted as representatives of the interests of particular segments of the population in the BD – increased their duty to verify the accuracy of the information before they reported it to the authorities. The Court will analyse whether the applicants complied with this obligation in respect of each of the impugned statements. The reasonableness of the efforts made in this respect must be determined in the light of the situation at the time of the preparation of the letter, rather than with the benefit of hindsight (see, mutatis mutandis, Stankiewicz and Others, cited above, § 72).", "110. The information which the applicants passed on to the authorities, given its source, was twofold: 1) information which the applicants received from employees of the radio station and 2) information obtained in another way.", "111. The information under 1) concerned allegations of fact regarding the removal of the calendar of religious services during the month of Ramadan from a wall in the radio ’ s premises and the alleged ban on broadcasting sevdalinka. The domestic courts established that R.S. and O.S. (both employees of the radio station) had discussed those two issues with O.H., the member and legal representative of the first applicant in the case. However, they held that the employees ’ account was not accurately rendered in the applicants ’ letter. Both R.S. and O.S. confirmed that M.S. had removed the Ramadan religious calendar from a wall in the radio ’ s premises. However, they did not confirm the part of the applicants ’ statement that in doing so M.S. had “demonstratively tore [the calendar] to pieces”. Furthermore, O.S. confirmed that he had complained to the first applicant that M.S. had asked him to explain why sevdalinka had been broadcasted during the slot reserved in the programme for another type of music. However, there was nothing to show that O.S. had said that M.S. “ banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value”.", "112. The Constitutional Court of Bosnia and Herzegovina held that “there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter ...” (see paragraph 33 above ). Although a certain degree of hyperbole and exaggeration is to be tolerated, and even expected, concerning reporting by NGOs (see Steel and Morris, cited above, § 90), this discrepancy was not trivial, but loaded the account obtained from the employees thus aggravating the depiction of M.S. as disrespectful of the cultural and ethnic identity of Bosniacs and Muslims. The Court underlines that the applicants, as NGOs whose members enjoyed a good reputation in society (see paragraph 5 9 above), were required to present an accurate rendering of the employees ’ account, as an important element for the development and maintaining of mutual trust and of their image as competent and responsible participants in public life. Furthermore, the disputed allegations were presented as statements of fact rather than as value judgments. The domestic courts held that that inconsistency was imputable to the applicants. The latter have not submitted any evidence that could cast doubt on that finding.", "113. The information under 2) above concerned the accusations that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska and that in a local newspaper she had made a statement that “Muslims were not a people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments.”", "114. As to the alleged “incident” regarding the coat of arms, the domestic courts established that it had been discussed at the meeting of the applicants held before the preparation of the letter. At that meeting S.C., the representative of the second applicant in the case, had confirmed that he had heard people speaking in the city about the alleged incident (see paragraph 25 above). The applicants did not produce, either in the defamation proceedings or in the proceedings before the Court, any evidence that they had made any effort to verify the veracity of that rumour before reporting it to the authorities. On the basis of oral evidence from three employees of the radio produced at the trial, the domestic courts established the inaccuracy of that information (see paragraph 27 above).", "115. Even more importantly, the applicants ’ reporting of M.S. as the author of the impugned article in the newspaper was based on guess-work by “a distinguished member of [an applicant organisation] ...” (see paragraphs 25 and 26 above). Whereas a statement as reported by the applicants had indeed been given in the article in question, the domestic courts established that M.S. had not been the author. The Court considers that the verification of that fact prior to reporting would not have required any particular effort on the part of the applicants. The identity of the author of that statement was readily ascertainable and would have required simple research by the applicants. Despite the seriousness of their accusation against M.S., the applicants made this statement frivolously without making any attempt, prior to reporting, to verify the authenticity of their allegation. The Court stresses that the more serious the accusation, the higher diligence is required before bringing it to the attention of the relevant authorities (see Pedersen and Baadsgaard, cited above, §§ 80 and 87). The applicants also failed to inform the recipients of the letter about its inaccuracy after they had discovered that M.S. had not been the author of the impugned statement (see paragraph 26 above). They put forward no reason for failing to do so.", "116. In addition, and in the context of the particular circumstances of the case, the Court notes that M.S. was not given the opportunity to comment on the allegations which the applicants intended to bring to the attention of the State authorities (see Bergens Tidende and Others, cited above, § 58). No argument was submitted that such an effort would have been impossible or inappropriate in the circumstances of the case.", "117. The BD Court of Appeal held that the applicants “did not prove the truthfulness [of these statements] ... which they knew or ought to have known were false” (see paragraphs 27 and 28 above). The Constitutional Court further added that those statements concerned “manifestly untrue facts” and that the applicants “did not make reasonable efforts to verify the truthfulness of [those] statements of fact before [reporting], but merely made [those statements]” (see paragraph 33 above). The Court finds no reasons to depart from that finding. It concludes accordingly that the applicants did not have a sufficient factual basis for their impugned allegations about M.S. in their letter.", "δ ) The severity of the sanction", "118. The last element to be taken into consideration is the severity of the sanction imposed on the applicants. In this connection the Court reiterates that the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Sürek v. Turkey (no. 1) [GC], no. 2668 2/95, § 64, ECHR 1999 ‑ IV; Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999 ‑ IV; Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004-VI; and Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001 ‑ I).", "119. It notes that the BD Court of Appeal made two orders against the applicants: that they inform the authorities that they retracted their letter (retraction order), failing which they would have to pay EUR 1,280 jointly in respect of non-pecuniary damages (payment order), and that they give the judgment to the BD radio and television and to two newspapers for publication at the applicants ’ own expense (publication order) (see paragraph 29 above). The Chamber “had regard to the award of damages made against the applicants in the context of a civil action and did not find it to be disproportionate” (see § 35 of the Chamber judgment).", "120. The Court does not consider that the order requiring the applicants to retract the letter within fifteen days or pay damages raises any issue under the Convention. It was only after expiration of the time-limit set by the BD Court of Appeal that the domestic courts began taking measures to enforce the payment order. The Court is further satisfied that the amount of damages which the applicants were ordered to pay was not, in itself, disproportionate. Accordingly, it is of no relevance that in determining this amount the BD Court of Appeal took into account the publication of the impugned letter in the media despite not having relied on that fact in finding the applicants liable for defamation (see paragraphs 29 and 60 above). Similar considerations apply to the publication order.", "ε) Conclusion", "121. In view of the foregoing, the Court discerns no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them (see Von Hannover (no. 2), cited above, § 107, and Perinçek, cited above, § 198). It is satisfied that the disputed interference was supported by relevant and sufficient reasons and that the authorities of the respondent State struck a fair balance between the applicants ’ interest in free speech, on the one hand, and M.S. ’ s interest in protection of her reputation on the other hand, thus acting within their margin of appreciation (see Tammer, cited above, § 60, and Pedersen and Baadsgaard, cited above, § 68).", "122. Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Letter from the applicants to the highest authorities in the Brčko District", "10. On an unknown date in May 2003 the applicants wrote a letter to the highest authorities of the BD, namely the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD, while the procedure for the appointment of a director of the BD ’ s multi-ethnic public radio station was still pending. In the letter, they voiced their concerns regarding the procedure for the appointment of a director of the BD ’ s multi-ethnic public radio station. They criticised the authorities for having disregarded the principle of proportional representation of ethnic communities in the public service of BD set out in the Statute of BD [3]. In this connection they stated:", "“...We acknowledge and appreciate your support and the effort you put into creating a multi-ethnic radio ... Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb [4] members, one Croat [5] and one Bosniac. Thus, yet again, the (BD) Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded. Parliament established several cases of non-compliance with this principle regarding employment of staff in the public sector, including the BD radio, to the disadvantage of Bosniacs and Croats, and requested that the Governor correct this imbalance. Unfortunately, nothing has been done to correct this. That this is true is confirmed by the unofficial information that Ms M.S. was proposed for the position of the radio ’ s director by the Serb members of the (selection) panel, who are in the majority, although the former director was Bosniac. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position.”", "11. The letter continued as follows:", "“According to our information ( našim informacijama ), the lady in question", "(1) stated in an interview published in ‘ NIN ’ [6], commenting on the destruction of mosques in Brčko, that Muslims were not a people ( Muslimani nisu narod ), that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,", "(2) as an employee of the BD radio demonstratively tore to pieces on the radio ’ s premises ( demonstrativno kidala ) the calendar showing the schedule of religious services during the month of Ramadan,", "(3) on the radio ’ s premises covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,", "(4) as an editor of the cultural programme on the BD radio banned the broadcasting of sevdalinka [7] arguing that that type of song had no cultural or musical value.", "We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of director of the multi-ethnic Radio and Television of Brčko District and that a Bosniac should be appointed to that [radio ’ s director] position, which would be in compliance with the Statute of [BD] and the need to rectify the ethnic imbalance regarding employment in the public sector.", "We hope that you will react appropriately to our letter ...", "In the absence of any action on your part, we will be forced to address the public ( obratiti se javnosti ) and [to contact] international and other competent representatives.”", "12. Soon afterwards, still in May 2003, the letter was published in three different daily newspapers.", "B. Defamation proceedings against the applicants", "1. Court of First Instance", "13. On 29 May 2003 M.S. brought civil defamation proceedings claiming that in the above letter the applicants had made defamatory statements which had damaged her reputation and discredited her as a person and a professional journalist.", "14. At the trial the first-instance court admitted a considerable volume of evidence, including oral statements from seven witnesses (apparently all employees of the BD public radio) regarding the veracity of the four allegations contained in the applicants ’ letter; it also admitted oral statements from the plaintiff and from O.H. and S.C., the members and statutory representatives of two of the applicants.", "15. As described in the judgment of 29 September 2004 (see paragraph 18 below), M.S. stated that she had learned of the letter shortly after it had been sent by the applicants, but that she did not know who had given it to the media. She confirmed that she had removed from the wall in the premises of the radio station the calendar showing the schedule of religious services during the month of Ramadan, but explained that the wall had been used only for work-related announcements. She denied that she had torn up the calendar. As to the coat of arms of Bosnia and Herzegovina, she stated that an invitation card with the coat of arms of Republika Srpska [8] had been placed in a corner of the coat of arms of Bosnia and Herzegovina, but that the latter had not been covered. Lastly, she denied that she had banned the broadcasting of sevdalinka. She argued that all those matters had been taken out of context, that her career as a journalist had been thwarted and that she had been concerned about her professional future.", "16. O.H. confirmed that he had participated in the preparation of the letter and stated that he had found out about the information contained therein from employees of the radio station who had asked him for help. There had been no intention to publish the letter. For that reason, it had been sent to the authorities personally. He did not know how the letter had reached the media.", "17. S.C. stated that most of the information had been brought to his attention by O.H. The letter had been sent to the authorities personally. Their intention had not been to publish the letter in the media. That was why they had indicated in the letter that it concerned allegations and not established facts. Their aim had been to draw the attention of the authorities to errors of M.S., who had been a serious candidate for the post of director of the BD radio.", "18. By a judgment dated 29 September 2004, the BD Court of First Instance dismissed M.S. ’ s action and ordered her to publish the judgment at her expense and to reimburse the trial costs of the applicants. It found that the applicants could not be held responsible because there had been no evidence that they had published the letter in the media. The relevant part of the judgment reads as follows:", "“It is clear that the defendants ’ letter was addressed personally ( upućeno na ruke ) to the Governor, to the President of the Assembly and to the Supervisor for Brčko District ... and it was not sent to the media ... The court established that the aim of the letter was to bring the attention of the authorities to (these) issues and to enable them to draw certain conclusions on verification of that information, and not to publish unverified information.", "Having examined the articles published in the media, the court concludes that none of them was published by [the applicants].”", "2. Court of Appeal", "19. On appeal by M.S., the BD Court of Appeal quashed that judgment on 16 May 2005 and decided to hold a new hearing.", "20. At the hearing before the Court of Appeal M.S. reiterated that the four statements specified above (see paragraph 11 above) had contained untrue and defamatory allegations whose aim had been to portray her as a nationalist and accordingly disqualify her for the post for which she had applied. Not only had she not been appointed to the post, but the letter had had other long-term negative consequences for her.", "21. The applicants argued that they had lacked capacity to be sued because they had not sent the letter to the media and, accordingly, had not expressed or disseminated in public any defamatory statements in respect of the appellant. The letter had been sent to the authorities. By a judgment of 11 July 2007 the BD Court of Appeal dismissed that argument and stated that", "“... a person ’ s reputation can be damaged if someone expresses or disseminates to other people untrue facts or allegations about the past, knowledge, skills or anything else ( and he or she knew or ought to have known that those facts or allegations were untrue ). For these reasons, the court dismisses the respondents ’ arguments that one can be held responsible for defamation only if there was a public announcement or dissemination or publication of (such) statements in the media.”", "22. The applicants further argued that M.S. had been a public servant and that by having taken part in the competition for the position of radio director she had become a public figure. Relying on section 6(5) of the Defamation Act (see paragraph 4 1 below ), the court held as follows:", "“... even if the aggrieved party is a public servant or a candidate for a post in a public body and he or she is generally perceived as having an important influence on public issues of political interest ... (a defendant) is to be held liable for defamation if he knew that a statement was false or negligently disregarded its inaccuracy.”", "23. Referring to the first part of the letter (see paragraph 10 above), the BD Court of Appeal did not go beyond noting that it contained value judgments for which no responsibility could be attributed to the applicants under the Defamation Act. It further quoted the four statements contained in the letter (see paragraph 11 above) and held that these “concerned statements of fact which the defendants were required to prove.” In this connection it re-examined O.H., S.C. and the witnesses who had already given oral evidence before the first-instance court (see paragraph 14 above).", "24. The Court of Appeal also noted that R.S. and O.S., both employees of the BD public radio, had visited one of the applicants in order to discuss M.S. ’ s behaviour in the workplace. On that occasion R.S. had told O.H. that during the month of Ramadan M.S. had detached from the wall in the radio ’ s premises the calendar showing the schedule of religious services. The court noted that the wall had been used for work-related announcements. It also indicated that, at the relevant time, another text, which had not been work-related, had been posted on the wall. O.S. (sound manager in the radio) had told O.H. that on one occasion M.S. had asked him to explain why sevdalinka had been broadcasted during the time reserved in the programme for another type of music. He confirmed that she had removed the Ramadan religious calendar from the wall.", "25. At a meeting held shortly afterwards, O.H. shared the information received from R.S. and O.S. with the other respondents. On that occasion one of the respondents had referred to a newspaper article and the alleged statement of M.S. regarding Muslims and the destruction of mosques. An allegation had been also made that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. S.C. had confirmed having heard people speaking about that in the city.", "26. After analysing the statements of the witnesses and the respondents, the court found that the facts reported in the letter regarding the calendar of religious services during the month of Ramadan and the broadcasting of sevdalinka were untrue, since “the letter obviously did not contain what (R.S. and O.S.) had said about the appellant and her behaviour regarding the religious calendar and the broadcasting of sevdalinka ”. Noting that the allegation that M.S. was the author of the statement published in the newspaper was untrue, the court stated:", "“... on the basis of S.C. ’ s statement [the court establishes] that at the meeting that preceded the preparation of the letter a distinguished member of a [respondent] had informed those attending the meeting that the appellant had given a statement to the newspaper, whose contents were identical to the contents of the letter. On subsequent verification [S.C.] established that such a text had been published, but that the appellant had not been the author ...”", "27. The court further stated that:", "“The respondents also did not prove the truthfulness of the allegation that in her office the appellant had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. On the basis of evidence given by the witnesses examined at the trial (B.S., D.N. and K.P.), [the court] established that the appellant had put an invitation card, which bore the coat of arms of Republika Srpska, in the corner of the coat of arms of Bosnia and Herzegovina ...”", "28. In conclusion, the court stated:", "“By the letter sent to the Office of High Representative BD - International Supervisor of the BD, the President of the BD ’ s Assembly and the Governor of the BD, the respondents damaged the plaintiff ’ s reputation and honour in the place in which she lives and works. They did so by expressing and disseminating to the above persons facts about the appellant ’ s behaviour, actions and statements which they knew or ought to have known were false ...”", "29. The Court of Appeal ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD within 15 days that they retracted the letter, failing which they would have to pay jointly the equivalent of EUR 1,280 in non-pecuniary damages to M.S. They were further ordered to give the judgment to the BD radio and television and to two newspapers for publication at the applicants ’ own expense. As regards the calculation of the amount of non-pecuniary damages, the court stated:", "“When assessing the amount of damages, namely, just satisfaction to be awarded to the appellant, [the court] took into consideration that the impugned facts had been mentioned in the article published in the media ...”", "30. On 15 November 2007 M.S. filed a request with the BD Court of First Instance for enforcement of the above judgment. On 5 December 2007 the Court of First Instance issued a writ of execution.", "31. On 12 December 2007 the applicants paid the equivalent of EUR 1,445 (inclusive of interest and enforcement costs) in enforcement of the judgment of 11 July 2007. On 27 March 2009 the Court of First Instance closed the enforcement proceedings.", "C. Proceedings before the Constitutional Court", "32. On 15 October 2007 the applicants applied to the Constitutional Court of Bosnia and Herzegovina seeking protection of their rights under Article 10 of the Convention.", "33. On 13 May 2010 the Constitutional Court held that the interference with the applicants ’ right to freedom of expression had been “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the Convention. The relevant part of the decision reads as follows:", "“34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law ...", "35. The impugned judgment was delivered in civil defamation proceedings initiated by the respondent against the appellants ... accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”.", "36. What remains to be determined is whether the interference complained of was ‘ necessary in a democratic society ’ ...", "37. With regard to the existence of a ‘ pressing social need ’, the Constitutional Court observes that the impugned (court) decisions concern the letter which the appellants sent to the authorities of the BD and the Supervisor for BD casting the plaintiff (M.S.) in a negative light. The Court of Appeal considered it to be defamation because (the case) concerned statements whose veracity could be verified ... The Constitutional Court notes that the Court of Appeal qualified the impugned statements in the letter as statements of fact and not as value judgments. The Constitutional Court also considers that they are to be regarded statements of fact which should be proved. The appellants failed to do so, as they did not make reasonable efforts to verify the truthfulness of [those] statements of fact before [reporting], but merely made [those statements].", "38. The Constitutional Court considers that the Court of Appeal established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter (concerning the part of the letter in which it was stated that M.S. ‘ made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value ’ ), the Court of Appeal established that there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter. Furthermore, the statement in the impugned letter that M.S. had given an interview concerning the destruction of mosques was refuted by another witness, who submitted that subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, in the present case the public interest that permits reporting on alleged irregularities in the conduct of public officials cannot be based on manifestly untrue factual allegations which impugn their reputation [ and ] which cannot be regarded as criticism that they ought to tolerate in view of their function. Accordingly, the court considers that the Court of Appeal correctly concluded that there was ‘ a pressing social need ’ in the present case [for the interference with the appellants ’ right to freedom of expression].", "39. Furthermore, the Constitutional Court notes that the Court of Appeal awarded non-pecuniary damages to M.S. because her reputation was affected by the untrue statements made in the impugned letter ... The Constitutional Court has already stated in its previous case-law that a person ’ s reputation forms part of his or her personal identity and psychological integrity ...", "...", "43. The appellants ... failed to verify the impugned statements beforehand as was their duty. The Court of Appeal established that the appellants had damaged M.S. ’ s reputation by making untrue allegations which caused her mental distress ...When deciding on the claim in respect of non-pecuniary damage and its amount, the Court of Appeal took into account the purpose of those damages and the rule that it should not favour aspirations that were incompatible with its nature and social purpose.", "44. [T]he Constitutional Court considers that the measure imposed on the appellants in the present case was proportionate to the aim pursued ...The court further considers that the Court of Appeal did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage ... [T]he Constitutional Court finds that the reasons the Court of Appeal gave were ‘ relevant ’ and ‘ sufficient ’ within the meaning of Article 10 of the European Convention.", "45. In view of the above, the Constitutional Court considers that the interference with the appellants ’ right to freedom of expression was ‘ necessary in a democratic society ’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the European Convention.”", "34. On 21 September 2010 the Constitutional Court ’ s decision was served on the applicants.", "D. Other relevant information", "35. According to the minutes of a meeting of the Management Board of the BD ’ s radio station dated 9 May 2003, there were two candidates for the post of the radio ’ s director, one of whom was M.S. The Management Board decided to extend the mandate of the acting director of the radio given that “due to political pressure and repeated voting” no decision could be made in respect of either of the candidates.", "II. 1995 GENERAL FRAMEWORK AGREEMENT FOR PEACE IN BOSNIA AND HERZEGOVINA (“THE DAYTON AGREEMENT”)", "36. The Dayton Agreement, initialled at the Wright-Patterson Air Force Base near Dayton (the United States of America) on 21 November 1995 and signed in Paris (France) on 14 December 1995, was the culmination of some forty-four months of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the Contact Group. It entered into force on the latter date and contains twelve annexes.", "37. Annex 2 of the Agreement concerns the Agreement on Inter-Entity Boundary Line and Related Issues. The relevant part of this Annex reads as follows:", "“ The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (the ‘ Parties ’ ) have agreed as follows:", "...", "Article V: Arbitration for the Brčko Area", "1. The Parties agree to binding arbitration of the disputed portion of the Inter-Entity Boundary Line in the Brčko area indicated on the map attached at the Appendix.", "2. No later than six months after the entry into force of this Agreement, the Federation shall appoint one arbitrator, and the Republika Srpska shall appoint one arbitrator. A third arbitrator shall be selected by agreement of the Parties ’ appointees within thirty days thereafter. If they do not agree, the third arbitrator shall be appointed by the President of the International Court of Justice. The third arbitrator shall serve as presiding officer of the arbitral tribunal.", "3. Unless otherwise agreed by the Parties, the proceedings shall be conducted in accordance with the UNCITRAL rules. The arbitrators shall apply relevant legal and equitable principles.", "4. Unless otherwise agreed, the area indicated in paragraph 1 above shall continue to be administered as currently.", "5. The arbitrators shall issue their decision no later than one year from the entry into force of this Agreement. The decision shall be final and binding, and the Parties shall implement it without delay.”", "38. Annex 4 of the Agreement sets out the provisions of the Constitution of Bosnia and Herzegovina (see paragraph 39 below).", "VI. Public trust", "B. Public advocacy", "1. Accuracy and in context", "Information that the organization chooses to disseminate to the media, policy makers or the public must be accurate and presented with proper context. This includes information presented by the NGO with respect to any legislation, policy, individual, organization, or project it opposes, supports, or is discussing ...", "2. Verbal and written statements", "The organization shall have clear guidelines and approval processes for the issuing of verbal and written statements.", "3. Disclosure of bias", "The organization shall present information in a fair and unbiased manner. Where a possible bias is unavoidable or inherent, it is to be disclosed.”" ]

[ "III. RELEVANT DOMESTIC LAW", "A. Constitution of Bosnia and Herzegovina", "39. The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace) entered into force on 14 December 1995. Article II of the Constitution, in so far as relevant, reads as follows:", "“3. Enumeration of Rights", "All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include:", "...", "h) Freedom of expression", "... ”", "40. In March 2009 the Parliamentary Assembly of Bosnia and Herzegovina adopted Amendment I to the Constitution (published in the Official Gazette of Bosnia and Herzegovina no. 25/09), which, in so far as relevant, reads as follows:", "“In the Constitution of Bosnia and Herzegovina, after Article VI(3), a new Article VI(4) shall be added and shall read:", "4. Brčko District of Bosnia and Herzegovina", "The Brčko District of Bosnia and Herzegovina, which exists under the sovereignty of Bosnia and Herzegovina and is subject to the responsibilities of the institutions of Bosnia and Herzegovina as those responsibilities derive from this Constitution, whose territory is jointly owned by (a condominium of) the Entities, is a unit of local self-government with its own institutions, laws and regulations, and with powers and status definitively prescribed by the awards of the Arbitral Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko Area. The relationship between the Brčko District of Bosnia and Herzegovina and the institutions of Bosnia and Herzegovina and the Entities may be further regulated by law adopted by the Parliamentary Assembly.”", "B. Defamation Act 2003 ( Zakon o zaštiti od klevete Brčko Distrikta, Official Gazette of BD no. 14/03)", "41. The relevant provisions of the Defamation Act 2003 of BD read as follows:", "Section 2", "“ ...", "(a) the right to freedom of expression, guaranteed by the European Convention on Human Rights..., the Constitution of Bosnia and Herzegovina and the Statute of Brčko District, has a fundamental role in a democratic society, in particular where it concerns matters of political and general interest;", "(b) the right to freedom of expression protects the content of information and the means of transmitting it...", "...", "Section 6", "Whoever causes damage to the reputation of another by asserting or disseminating a falsehood in relation to that person, and by identifying that person to another, shall be liable for defamation.", "For a defamatory statement published in the media the responsible persons shall be the author, the editor-in-chief and the publisher, and any other person who in any other way supervised the content of the publication.", "Liability for defamation in one of the situations referred to above shall be incurred if a falsehood was asserted or disseminated with malice or negligence.", "If a defamatory statement relates to a matter of public interest a defendant shall be liable for defamation if he knew that the statement was false or negligently disregarded its inaccuracy.", "The same standard of responsibility referred to above applies in a situation where a defamatory statement was made in relation to a public servant ... or a candidate for public office ...", "Exemptions from liabilitySection 7", "There is no liability for defamation", "(a) if defamatory statements are value judgments or if they are false only in irrelevant details and are essentially true ...", "...", "(c) if the assertion or dissemination was reasonable.", "...”", "C. Civil Obligations Act 1978 ( Zakon o obligacionim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/8, and Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92, 13/93 and 13/94)", "42. The relevant provision of the Civil Obligations Act 1978 reads as follows:", "Non-pecuniary damagesSection 200", "“ The court shall award non-pecuniary damages for physical pain, mental distress caused by loss of amenities of life, disfigurement, damage to reputation, honour, a breach of liberty or the rights of personality or the death of a close relative, and for fear, if it finds that the circumstances of the case, in particular the intensity of the pain, distress or fear and their duration, justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage.", "When deciding on a claim for non-pecuniary damages and its amount, the court shall take into account ... the purpose of those damages and the rule that it should not favour aspirations that are incompatible with its nature and social purpose.”", "IV. RELEVANT INTERNATIONAL COMPARATIVE MATERIALS", "A. Resolution 1729 (2010), Protection of “whistle-blowers”, Parliamentary Assembly of the Council of Europe, 29 April 2010", "43. The relevant part of the Resolution reads as follows:", "“ 6.3. As regards the burden of proof, it shall be up to the employer to establish beyond reasonable doubt that any measures taken to the detriment of a whistle-blower were motivated by reasons other than the action of whistle-blowing.”", "B. Recommendation CM/Rec(2014)7, Protection of whistle-blowers, Committee of Ministers of the Council of Europe, on 30 April 2014", "44. The relevant part of the Recommendation reads as follows:", "“II. Personal scope", "3. The personal scope of the national framework should cover all individuals working in either the public or private sectors, irrespective of the nature of their working relationship and whether they are paid or not.", "4. The national framework should also include individuals whose work-based relationship has ended and, possibly, where it is yet to begin in cases where information concerning a threat or harm to the public interest has been acquired during the recruitment process or other pre-contractual negotiation stage.”", "C. Fundamental Principles on the Status of Non-governmental Organisations in Europe, Strasbourg, 13 November 2002, Council of Europe, adopted at multilateral meetings held in Strasbourg between 19 November 2001 and 5 July 2002", "45. The relevant parts of this document read as follows:", "“Considering that non-governmental organisations (hereinafter NGOs) make an essential contribution to the development, realisation and continued survival of democratic societies, in particular through the promotion of public awareness and the participatory involvement of citizens in the res publica, and that they make an equally important contribution to the cultural life and social well-being of such societies;", "...", "Considering that their contributions are made through an extremely diverse body of activities which can range from acting as a vehicle for communication between different segments of society and public authorities ...", "Recognising that the operation of NGOs entails responsibilities as well as rights,", "...", "74. NGOs should be encouraged to participate in governmental and quasigovernmental mechanisms for dialogue, consultation and exchange, with the objective of searching for solutions to society ’ s needs.”", "D. Code of Ethics and Conduct for NGOs, World Association of Non ‑ Governmental Organisations (WANGO), 2004", "46. The relevant parts of the Code read as follows:", "“C. Human Rights and Dignity", "An NGO should not violate any person ’ s fundamental human rights, with which each person is endowed.", "...", "F. Truthfulness and Legality", "An NGO should give out accurate information, whether regarding itself and its projects, or regarding any individual, organization, project, or legislation it opposes or is discussing.", "THE LAW", "I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER", "47. In their memorials lodged with the Court and oral pleadings before the Grand Chamber, the applicants raised complaints under Articles 6, 9, 10, 13 and 14 of the Convention.", "48. The Government maintained that the present case concerned only the applicants ’ complaint under Article 10 of the Convention and that other issues raised by the applicants could not be the subject of examination by the Court.", "49. The Court reiterates that the “case” referred to the Grand Chamber is the application as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII; Janowski v. Poland [GC], no. 25716/94, §§ 19 and 20, ECHR 1999 ‑ I; Pentikäinen v. Finland [GC], no. 11882/10, § 81, ECHR 2015; and Murray v. the Netherlands [GC], no. 10511/10, § 88, ECHR 2016 ).", "50. In the present case it notes that the complaints under Articles 6, 9, 13 and 14 did not form part of the application which was declared admissible by the Chamber in its judgment of 13 October 2015. Accordingly, the Court will limit its examination to the applicants ’ complaint under Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "51. The applicants complained that their punishment, in the context of civil liability for defamation, violated their right to freedom of expression as guaranteed by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "52. The Chamber found that the decisions of the domestic courts amounted to “an interference” with the applicants ’ freedom of expression as guaranteed by Article 10 of the Convention, and that such an interference had been “prescribed by law” and pursued a legitimate aim, namely that of the protection of M.S. ’ s reputation.", "53. It was satisfied that the domestic courts had made a distinction between statements of facts and value judgments and that, relying on the available evidence, they had correctly concluded that the applicants had acted negligently by simply reporting M.S. ’ s alleged misconduct without making a reasonable effort to verify the accuracy of those allegations. Furthermore, it found that the award of damages made against the applicants had not been disproportionate. It concluded therefore that the domestic courts had struck a fair balance between M.S. ’ s right to reputation and the applicants ’ right to report irregularities about the conduct of a public servant to the body competent to deal with such complaints and that the reasons given to justify their decisions had been “relevant and sufficient” and met a “pressing social need”. Accordingly, it held that there had been no violation of Article 10 of the Convention.", "B. The parties ’ submissions", "1. The applicants", "54. The applicants maintained that the impugned correspondence had been a private and confidential letter sent to the competent authorities with a direct institutional interest in the matter. It concerned allegations regarding a prospective candidate for the post of director of the BD public radio, who was to be regarded as a public official. The appointment of the director of the BD public radio was a matter of public concern. Given that the limits of acceptable criticism in respect of public servants were wider, M.S. had to display a greater degree of tolerance. Furthermore, the letter had not contained a definite statement of facts. The authorities had a duty to evaluate “the unofficial information” contained therein and act accordingly.", "55. In their oral pleadings before the Grand Chamber, the applicants submitted that section 6 of the Defamation Act had not been sufficiently precise to enable them to foresee that it applied to their case, which concerned the reporting of irregularities to the relevant authorities. The domestic courts had failed to strike a fair balance between M.S. ’ s right to reputation and their freedom of expression. According to the applicants, people were entitled, in the discharge of their civic duties, to bring relevant information to the attention of the authorities and to use even harsh and disturbing language in order to prompt them to verify such information and ensure good governance. The authorities had to maintain confidence in civil administration by encouraging citizens to take action in resolving problems in society. Their letter had contained value judgments about M.S. ’ s professional and moral qualities for the job for which she had applied.", "56. They further submitted that M.S. had suffered no harm. The letter had not been intended for the wider public and they had not sent it to the media. Any responsibility in that respect was to be imputed either to the recipients of the letter or to M.S.", "57. The Court of Appeal had not made any mention of the fact that at the time M.S. had not been a director and accordingly had had no power to remove the calendar of religious services from the wall in the radio station. Furthermore, that judgment had not addressed their arguments that the Statute of the BD had not allowed official symbols (coat of arms) of an Entity of Bosnia and Herzegovina (Republika Srpska, in the present case) to be displayed in the premises of public institutions.", "2. The Government", "58. The Government maintained that the impugned letter contained no indication that it had been of a confidential nature. None of the authorities to whom the applicants had complained had any competence regarding the procedure for the appointment of the BD ’ s radio director. According to the legislation which had been applicable at the time, the Management Board of the BD radio had been competent to decide on the appointment and dismissal of the radio director.", "59. The Government further submitted that in the impugned letter the applicants had made very serious accusations against M.S., a public servant whose religious and ethnic background had been different from the applicants ’ background. The applicants were associations who enjoyed a good reputation and their distinguished members were expected to make some effort to verify the veracity of their statements. The absence of any such effort on their part demonstrated a lack of social responsibility. This concerned in particular their failure to verify whether M.S. had been the author of the interview reported in their letter. The particular circumstances at a time when the ultimate interest in the multi-ethnic society had been to maintain peace and build mutual confidence in post-war Bosnia and Herzegovina had required the applicants to be more vigilant when making such serious accusations. Since the building of public confidence in public institutions and public servants had been of particular importance in the multi-ethnic, post-conflict society that Bosnia and Herzegovina had been at the time, people were required to refrain from making false statements, either intentionally or negligently, in particular if those statements concerned religious or ethnic issues. The applicants, as Bosniac non-governmental organisations, had acted as lobbyists for the Bosniac candidate for the post of the radio ’ s director. The letter had served at the time as a means of political pressure, which had led the Management Board of the radio not to appoint any of the prospective candidates, that is neither M.S., as a representative of the Serbs, nor the other candidate, who had been Bosniac.", "60. The Government confirmed that the publication of the letter in the media had not been relied on by the domestic courts in finding the applicants responsible for defamation. Since the letter had been leaked to the public, the harm caused to M.S. ’ s reputation by the communication of unverified and false information to the authorities had been aggravated. The domestic courts had relied on the publication of the letter in determining the amount of non-pecuniary damages awarded to M.S. The Government indicated that letters sent to the authorities in the respondent State were frequently leaked to the public before the authorities could take any measure with respect to the information received. Given that sources of information to the media enjoyed a high level of legal protection, the identity of people who provided “private and confidential information” to the media remained undisclosed.", "61. The Government concluded that the domestic courts, having found for M.S., had struck a fair balance between the competing rights and freedoms, as well as between the legitimate aim pursued and the means employed.", "3. The third-party interveners", "62. In joint submissions CREDOF and the association Blue Print for Free Speech argued that the present case was appropriate to supplement the relevant criteria for the protection of the freedom of speech of whistle ‑ blowers established in the Court ’ s case-law. They submitted that whistle-blowers who “report” information to the competent authorities should enjoy equal protection to whistle-blowers who “disclose” information in public. Whistle-blowers who reported alleged irregularities to the authorities by means of private correspondence, as in the present case, should not bear an excessive burden to prove the veracity of the information provided. Relevant legal instruments of the Council of Europe and the Court ’ s case-law required a low standard of proof of the facts denounced by whistle-blowers, the aim of which was to encourage the revelation of facts of general interest and an inquiry by the State into those facts. In their view, instead of placing the burden on the whistle-blowers to prove the veracity of the facts reported, it was necessary to enable the State to inquire into the facts reported. In this connection they submitted that whistle-blowing was a mechanism for the advancement of democratic accountability designed to encourage the receipt and processing of reports by the persons best placed to resolve the problem concerned.", "63. The standard of proof required in cases of public disclosure of information by whistle-blowers was no more than a “sufficient factual basis”, the latter being assessed in the light of the whistle-blower ’ s personal experience. In cases where information was reported to the competent authorities, the damage caused to persons or institutions by potentially defamatory allegations was less severe than in the case of public disclosure, in view of the more restricted circle of addressees. The more limited effect of such reporting was a ground for a more indulgent requirement of moderation of expression. Affording a lower level of protection to citizens who reported information to the authorities would have a chilling effect on the freedom of expression and would encourage the leaking of information to the public to the detriment of reporting to the competent authorities.", "64. The third-party interveners further submitted that the obligation of the authorities to investigate the information divulged was the corollary of the principle of the indivisibility of human rights and the positive obligations placed upon the States. Only an inquiry by the authorities into the veracity of the allegations revealed by whistle-blowers could bring to light all aspects of the issue, to which the whistle-blower generally had only partial access.", "65. Lastly, the third-party interveners underlined that the damage to the reputation of public officials resulting from public disclosures was more severe than was the case when information was reported to the competent authorities. Accordingly, the Court should be more attentive when assessing the proportionality of penalties imposed upon whistle ‑ blowers who confined themselves to reporting information in private correspondence to the competent authorities.", "B. The Court ’ s assessment", "1. Existence of an interference", "66. The Court considers that the impugned decision of the BD Court of Appeal holding the applicants liable for defamation and ordering them to retract the letter, failing which they would have to pay non-pecuniary damages to M.S., constituted an interference with their right to freedom of expression under the first paragraph of Article 10 of the Convention.", "67. Such interference, in order to be permissible under the second paragraph of Article 10, must be “prescribed by law”, pursue one or more legitimate aims and be “necessary in a democratic society” for the pursuit of such aim or aims.", "2. Whether the interference was prescribed by law", "68. The expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I).", "69. It was not disputed between the parties that the interference with the applicant ’ s right to freedom of expression had a legal basis in the domestic law – section 6 of the Defamation Act 2003 (see paragraph 4 1 above) – and that the relevant law was accessible. However, in their oral pleadings before the Grand Chamber the applicants argued that the application of section 6 of the Defamation Act to their case had not been sufficiently foreseeable for the purposes of Article 10 § 2 of the Convention.", "70. In this regard the Court reiterates that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he or she must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 124, ECHR 2016 (extracts), and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015).", "71. Turning to the present case, the Court sees no need to pronounce itself on the belatedness of the applicants ’ submission disputing the foreseeability of the relevant national law, as it is in any event unsubstantiated for the following reasons. It observes that the applicants presented no legal arguments, based on the terms of the national legal provisions or on national case-law, to indicate that their case fell outside the scope of application of the general rule in section 6(1) of the Defamation Act 2003 governing the circumstances in which a person could be held liable for defamation (see paragraph 4 1 above). In its judgment of 11 July 2007, the BD Court of Appeal found that the impugned four statements contained in the applicants ’ letter (see paragraph 11 above) constituted an expression or dissemination giving rise to an actionable claim in defamation (see paragraph 21 above). The Constitutional Court of Bosnia and Herzegovina also accepted that section 6 of the Defamation Act 2003 applied to the applicants ’ private correspondence with the BD authorities (see paragraph 33 above). They accepted accordingly that dissemination did not necessarily entail diffusion through media. While it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I), the Court finds nothing to suggest that the applicants were not in a position to foresee, to a reasonable degree, the national appellate court ’ s interpretation and application of section 6 of the Defamation Act 2003 to their case.", "72. Against this background, the Court is satisfied that section 6 of the Defamation Act 2003 met the required level of precision and that, accordingly, the interference was “prescribed by law”.", "3. Whether the interference pursued a legitimate aim", "73. There was no dispute between the parties that the interference complained of pursued a legitimate aim, namely “the protection of the reputation or rights of others”. The Court finds no reason to reach a different conclusion on this issue.", "4. Necessary in a democratic society", "74. It remains to be determined whether the interference complained of was “necessary in a democratic society”, which is the central issue in this case. In doing so, the Court has to examine whether the national courts struck a fair balance between the applicants ’ right to freedom of expression guaranteed under Article 10 of the Convention and M.S. ’ s interest in the protection of her reputation.", "(a) General principles", "i. On the application of the requirement in Article 10 § 2 of the Convention that an interference be “necessary in a democratic society”", "75. The general principles for assessing the necessity of an interference with the exercise of freedom of expression were recently summarised in Bédat v. Switzerland [GC] (no. 56925/08, § 48, ECHR 2016) as follows:", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "ii. Protection of reputation under Article 8 of the Convention", "76. Furthermore, it may be reiterated that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life. The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers also the physical and psychological integrity of a person. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and A. v. Norway, no. 28070/06, § 64, 9 April 2009 ). On the other hand, Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one ’ s own actions, such as, for example, the commission of a criminal offence (see Axel Springer, cited above, § 83 and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII).", "iii. On the balancing of Article 10 and Article 8 of the Convention", "77. In instances where, in accordance with the criteria set out above, the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting the two values guaranteed by the Convention, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8. The general principles applicable to the balancing of these rights were first set out in Von Hannover v. Germany (no. 2) [GC] (nos. 40660/08 and 60641/08, §§ 104-07, ECHR 2012) and Axel Springer AG (cited above, §§ 85-88), then restated in more detail in Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, §§ 90-93, ECHR 2015 (extracts)) and more recently summarised in Perinçek v. Switzerland [GC] (no. 27510/08, § 198, ECHR 2015 (extracts)) as follows:", "“(i) In such cases, the outcome should not vary depending on whether the application was brought under Article 8 by the person who was the subject of the statement or under Article 10 by the person who has made it, because in principle the rights under these Articles deserve equal respect.", "(ii) The choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the High Contracting Party ’ s margin of appreciation, whether the obligations on it are positive or negative. There are different ways of ensuring respect for private life and the nature of the obligation will depend on the particular aspect of private life that is at issue.", "(iii) Likewise, under Article 10 of the Convention, the High Contracting Parties have a margin of appreciation in assessing whether and to what extent an interference with the right to freedom of expression is necessary.", "(iv) The margin of appreciation, however, goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the Court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied on.", "(v) If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for theirs.”", "(b) Approach to be adopted by the Court in the present case", "78. In order to determine the approach to be applied in the present case, the Court has to look at the interference complained of in the light of the case as a whole, including the form in which the remarks held against the applicants were conveyed, their content and the context in which the impugned statements were made (see Stankiewicz and Others v. Poland, no. 48723/07, § 61, 14 October 2014, and Nikula v. Finland, no. 31611/96, §§ 44 and 46, ECHR 2002 ‑ II ).", "i. Whether the Article 10 right is to be balanced against the Article 8 right", "79. The Court notes that it has not been submitted, nor does it appear, that the accusations made against M.S. in the applicants ’ letter concerned conduct that was regarded as criminal under domestic law ( see, conversely, White v. Sweden, no. 42435/02, § 25, 19 September 2006; Sanchez Cardenas v. Norway, no. 12148/03, §§ 37-39, 4 October 2007; Pfeifer v. Austria, no. 12556/03, §§ 47-48, 15 November 2007; and A. v. Norway, cited above, § 73). However, it finds that accusing M.S. of being disrespectful in regard to another ethnicity and religion was not only capable of tarnishing her reputation, but also of causing her prejudice in both her professional and social environment (see paragraph 10 4 below). Accordingly, the accusations attained the requisite level of seriousness as could harm M. S. ’ s rights under Article 8 of the Convention (see, mutatis mutandis, Dorota Kania v. Poland (no. 2), no. 44436/13, § 73, 4 October 2016, which concerned accusations made against a university rector that he had been a secret collaborator with the communist-era security services). The Court therefore must verify whether the domestic authorities struck a fair balance between the two values guaranteed by the Convention, namely, on the one hand, the applicants ’ freedom of expression protected by Article 10 and, on the other, M.S. ’ s right to respect for her reputation under Article 8 (see Axel Springer AG [GC], cited above, § 84).", "ii. Relevance of the Court ’ s case-law regarding whistle-blowing", "80. The Court has further considered whether the applicants ’ reporting could be qualified, as argued by the third-party interveners, as whistle-blowing, as this phenomenon has been defined in its case-law. However, the Court notes that the applicants were not in any subordinated work-based relationship with the BD public radio (see paragraphs 4 3 and 4 4 above) which would make them bound by a duty of loyalty, reserve and discretion towards the radio, which are particular features of this concept as defined in its case-law (see, by contrast, Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008; Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013; and Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)). The applicants, who were not employees of the BD radio station, had no exclusive access to and direct knowledge of that information (see Aurelian Oprea v. Romania, no. 12138/08, § 59, 19 January 2016), but they apparently acted as “a vehicle for communication” (see paragraph 4 5 above) between the radio ’ s employees (regarding the alleged misconduct of M.S. in the workplace) and the BD authorities. No information has been submitted to the effect that those employees suffered any repercussions as a consequence of their signalling of the alleged wrongdoing (ibid.). Neither did the applicants argue that their letter had to be regarded as whistle ‑ blowing (see, in contrast, Guja, cited above, § 60; Heinisch, cited above, § 43; and Aurelian Oprea, cited above, § 45 ). In the absence of any issue of loyalty, reserve and discretion, there is no need for the Court to enquire into the kind of issue which has been central in the above case-law on whistle-blowing, namely whether there existed any alternative channels or other effective means for the applicants of remedying the alleged wrongdoing (such as disclosure to the person ’ s superior or other competent authority or body) which the applicants intended to uncover (compare Guja, cited above, § 73).", "iii. Relevance of the Court ’ s case-law concerning the reporting on alleged irregularities in the conduct of State officials", "81. It is nonetheless significant that what prompted M.S. to bring the defamation proceedings was the contents of the applicants ’ letter to the highest authorities in BD, in which they complained about M.S., who at the material time was an editor of the BD public radio ’ s entertainment programme and one of the candidates for the post of director of that radio station. Given that the radio was public and relied on State funding, it is not in doubt that she was to be regarded as a public servant. The Government maintained the same position (see paragraph 5 9 above).", "82. In this connection the Court finds particularly noteworthy the approach followed by the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 33 above), relying in substance on Convention case-law developed in a comparable group of cases where the Court found on the facts that “the requirements of protection under Article 10 of the Convention ha[d] to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicants ’ right to report alleged irregularities in the conduct of State officials” (see Zakharov v. Russia, no. 14881/03, § 23, 5 October 2006; Siryk v. Ukraine, no. 6428/07, § 42, 31 March 2011; Sofranschi v. Moldova, no. 34690/05, § 29, 21 December 2010; Bezymyannyy v. Russia, no. 10941/03, § 41, 8 April 2010; Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008; and Lešník v. Slovakia, no. 35640/97, ECHR 2003 ‑ IV). An important consideration in this line of case-law is that “it is one of the precepts of the rule of law” that “citizens should be able to notify competent State officials about the conduct of civil servants which to them appears irregular or unlawful” (see Zakharov, § 26; Siryk, § 42; Sofranschi, § 30; Bezymyannyy, § 40; Kazakov, § 28; and mutatis mutandis, Lešník, § 60; all cited above). Both the foregoing principle and the judgments applying it show that the Court has been prepared to assess an applicant ’ s good faith and efforts to ascertain the truth according to a more subjective and lenient approach than in other types of cases (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 87, ECHR 2004 ‑ XI).", "83. At the same time it should be emphasised that in the above ‑ mentioned rulings a crucial factor in the Court ’ s proportionality assessment was the fact that the impugned defamatory statements had been made by way of private correspondence addressed by the applicant to the hierarchical superior of the aggrieved party concerned (compare Siryk, cited above, § 42; Bezymyannyy, cited above, § 41; Kazakov, cited above, § 28; Zakharov, cited above, § 23; and Lešník, cited above) or to State officials (compare Sofranschi, cited above, § 29). In some of these cases, the disputed allegations had resulted from the applicants ’ direct personal experience ( Siryk concerned allegations by the applicant that officials of the Tax Service Academy, where her son had studied, had demanded a bribe from her; in Bezymyannyy the applicant had reported the alleged unlawful conduct of a judge who had adjudicated his case; in Kazakov a former army officer had sent a letter of complaint alleging unlawful conduct on the part of a military unit commander; in Lešník the applicant had complained of abuse of office and corruption regarding a public prosecutor who had rejected his criminal complaint against a third person), while in others they had been submitted by applicants who had not been directly involved in the matters complained of ( Zakharov concerned a complaint by an individual that a town official had abused her office and had facilitated land usurpation; in Sofranschi the applicant, who was a member of the electoral staff of a candidate for the position of mayor of their village, had written a letter criticising another candidate).", "84. Thus, as can be seen from the foregoing analysis, there are a number of similarities between the Zakharov -type cases and the present one. However, as will be explained below, there are also certain distinctive features, which militate in favour of adopting a more nuanced approach based on further criteria.", "iv. Relevance of the Court ’ s case-law concerning defamation of public officials and the role of NGOs and the press", "85. In particular, unlike in the above-cited cases, the allegations which the applicants had laid before the authorities in the present case had not been made by a private individual but by four NGOs and had not been based on direct personal experience.", "86. From the outset, it should be underlined that the role of an NGO reporting on alleged misconduct or irregularities by public officials is no less important than that performed by an individual according to the Zakharov line of authority, even where, as in the present instance, it is not based on direct personal experience. Indeed, the Court has accepted that when an NGO draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press (ibid., and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 166, 8 November 2016 ). It has recognised that civil society makes an important contribution to the discussion of public affairs (see, for instance, Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005 ‑ II, and Magyar Helsinki Bizottság, cited above, § 166 ). It is also noteworthy that the Fundamental Principles on the Status of Non-Governmental Organisations cited at paragraph 4 5 above underline the important contribution of NGOs “to the development, realisation and continued survival of democratic societies” and the need for such societies to “encourage [NGOs] to participate in ... mechanisms for dialogue, consultation and exchange”.", "87. At the same time it should not be overlooked that, in a comparable way to the press, an NGO performing a public watchdog role is likely to have greater impact when reporting on irregularities of public officials, and will often dispose of greater means of verifying and corroborating the veracity of criticism than would be the case of an individual reporting on what he or she has observed personally. In the area of press freedom the Court has held that “by reason of the ‘ duties and responsibilities ’ inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” (see Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ). Recently, in the above-cited case of Magyar Helsinki Bizottság, the Court affirmed that the same considerations would apply to an NGO assuming a social watchdog function (§ 159). A similar view is reflected in the Code of Ethics and Conduct for NGOs cited at paragraph 4 6 above, according to which “an NGO should not violate any person ’ s fundamental human rights”, “should give out accurate information ... regarding any individual” and “the information that [an NGO] chooses to disseminate to ... policy makers ... must be accurate and presented with proper context”.", "v. Conclusion", "88. Accordingly, the present case reveals a need to have regard to a broader range of factors than in the Zakharov -type cases, in which the Court attributed “crucial importance” to the fact that applicants addressed their complaints by way of private correspondence (see Zakharov, § 26; Sofranschi, § 33; and Kazakov, § 29, all cited above, and Raichinov v. Bulgaria, no. 47579/99, § 48, 20 April 2006 ) and accepted a relatively lenient burden on the applicant to ascertain their veracity (see paragraph 8 2 above). In balancing the competing interests involved, namely the applicants ’ right to freedom of expression against M.S. ’ s right to respect for her private life (see paragraph 7 9 above), the Court finds it appropriate to take account also of the criteria that generally apply to the dissemination of defamatory statements by the media in the exercise of its public watchdog function, namely the degree of notoriety of the person affected; the subject of the news report; the content, form and consequences of the publication; as well as the way in which the information was obtained and its veracity, and the gravity of the penalty imposed (see Von Hannover, cited above, §§ 108-13, ECHR 2012; Axel Springer AG, cited above, §§ 89-95; and Couderc and Hachette Filipacchi Associés, cited above, § 93).", "(c) Application of the above principles and criteria in the present case", "89. The Court will examine the factors relevant to the present case in turn in order to determine whether the interference, seen as a whole, was supported by relevant and sufficient reasons and was proportionate to the legitimate aim pursued.", "i. Private nature of the correspondence", "90. The Court notes that the domestic courts ’ examination was confined to the private correspondence between the applicants and the State officials. Indeed, the Court of Appeal ’ s finding that the applicants were liable for defamation was based only on “the letter sent to the Office of High Representative BD - International Supervisor of the BD, the President of the BD ’ s Assembly and the Governor of the BD ... [in which they] expressed and disseminated to the above persons facts about the plaintiff ’ s behaviour, actions and statements ...” (see paragraph 28 above). The Constitutional Court confirmed that the “impugned [court] decisions concern[ed] the letter which the [applicants] sent to the authorities of the BD and the Supervisor for BD casting the plaintiff (M.S.) in a negative light” (see paragraph 33 above). The fact that the applicants ’ letter was published in local newspapers played no role in the domestic courts ’ finding regarding the applicants ’ liability for defamation, as it was not proven that they had been responsible for its publication. That was confirmed by the Government in their memorials (see paragraph 60 above).", "91. The Court is also of the opinion that the applicants ’ liability for defamation should be assessed only in relation to their private correspondence with local authorities, rather than the publication of the letter in the media (see Bezymyannyy, cited above, § 37) or any other means (see Sofranschi, cited above, § 28, which concerned spreading the impugned rumours among villagers).", "ii. Public interest involved in the information contained in the letter", "92. A relevant factor to be taken into consideration is whether the information contained in the applicants ’ letter concerned an issue of public interest. This depends on a broader assessment of the subject matter and the context of the letter (see Bladet Tromsø and Stensaas, cited above, § 63; Björk Eiðsdóttir v. Iceland, no. 46443/09, § 67, 10 July 2012, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007).", "93. The Court notes that in the letter the applicants were critical of the extent to which the national authorities complied with the principle of proportional representation of ethnic communities in the BD ’ s public service (see paragraph 10 above). They referred to previous cases of non-compliance with that principle, which allegedly had been to the disadvantage of Croats and Bosniacs in the BD. Those cases also involved employment of staff in the BD radio station. In this connection they challenged the candidature of M.S. for the post of the radio ’ s director allegedly submitted by the majority members of the selection panel, who had been Serbs. They alleged that she had been involved in disparaging behaviour towards ethnic Bosniacs.", "94. The Court considers that there can be no doubt that any discussion concerning the ethnic balance of employees in the public service was important and fell within the public domain. A high standard of public service in which civil servants, in particular those who were “generally perceived as having an important influence on public issues of political interest” (see paragraph 22 above), were respectful of the ethnic and religious identity of those living in Bosnia and Herzegovina was an important issue of public concern. The particular importance that any ethnic- or religious-related issue had at the relevant time in Bosnian society, as argued by the Government, was further evidence that the letter, seen as a whole, concerned matters of public concern in the BD. These issues were at least of considerable concern for the Bosniacs, represented by the applicants, who, as transpired from the letter, considered themselves under-represented in the public service (see Albert-Engelmann-Gesellschaft mbH v. Austria, no. 46389/99, § 30, 19 January 2006).", "iii. Recipients of the letter competent to receive the information", "95. The Court notes that the authorities contacted by the applicants did not have direct competence in the proceedings for the appointment of the radio ’ s director (see paragraph 35 above). However, it accepts that they had a legitimate interest in being informed about the matters raised in the letter. The Government did not submit otherwise.", "iv. The manner in which the applicants reported the alleged irregularities to the relevant authorities", "96. The Court will focus its examination on the applicants ’ allegations against M.S., which were the sole basis on which the domestic courts relied in finding the applicants liable for defamation (see paragraph 23 above and § 33 of the Chamber judgment). The relevant statements read as follows:", "“According to our information ( našim informacijama ) the lady in question", "(1) stated in an interview published in ‘ NIN ’, commenting on the destruction of mosques in Brčko, that Muslims were not a people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,", "(2) as an employee of the BD radio demonstratively tore to pieces ( demonstrativno kidala ) on the radio ’ s premises the calendar showing the schedule of religious services during the month of Ramadan,", "(3) on the radio ’ s premises covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,", "(4) as an editor of the cultural programme on BD radio banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value.”", "97. The domestic courts (both the BD Court of Appeal and the Constitutional Court of Bosnia and Herzegovina) qualified these allegations as statements of fact (and not as value judgments). Noting that the impugned statements essentially described words and deeds allegedly imputed to M.S., the Court does not see any grounds to find otherwise.", "α) How well known was the person concerned and what was the subject of the allegations", "98. It is to be noted that the above allegations concerned M.S., who, at the time, was an employee of the BD radio station and, accordingly, a public servant (see paragraph 8 1 above). The Court reiterates that civil servants acting in an official capacity are subject to wider limits of acceptable criticism than ordinary individuals (see Morice v. France [GC], no. 29369/10, § 131, ECHR 2015 ). Given the nature of the post which M.S. held at the relevant time (an editor of the entertainment programme), it cannot be said that those limits were as wide as in the case of politicians (see Pedersen and Baadsgaard, cited above, § 80; Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001 ‑ III; and Janowski, cited above, § 33). However, the Court notes that M.S., by having applied for the post of the radio ’ s director and bearing in mind also the public interest involved in the information contained in the letter (see paragraph 9 4 above), must be considered to have inevitably and knowingly entered the public domain and laid herself open to close scrutiny of her acts. The BD Court of Appeal also accepted that M.S. was a civil servant and that the post of the radio ’ s director was to be regarded as being of a particular public concern (see paragraph 22 above). In such circumstances, the Court considers that the limits of acceptable criticism must accordingly be wider than in the case of an ordinary professional (see, mutatis mutandis, Björk Eiðsdóttir, cited above, § 68, and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 65, 10 July 2012).", "99. As noted above (see paragraph 9 6 above), the impugned four statements contained allegations of wrongdoing on the part of M.S. in the workplace and a comment in a newspaper, of which she allegedly was the author, and which showed contempt for different ethnic and religious segments of Bosnian society.", "β) Content, form and consequences of the information passed on to the authorities", "100. For the assessment under this head, an important factor is the wording used by the applicants in the impugned letter. In this connection the Court notes that the applicants did not explicitly say in the letter that part of the information which they passed on to the authorities had emanated from other sources (employees of the radio station) (see Thoma, cited above, § 64, and Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65, Series A no. 239), without there being any obligation to identify that source (see Albert-Engelmann-Gesellschaft mbH, cited above, § 32). The applicants had introduced their letter with the words “according to our information”, but had not clearly indicated that they had acted as messengers. Therefore they implicitly presented themselves as having direct access to that information (see Verdens Gang and Aase v. Norway (dec.), no. 45710/99, ECHR 2001 ‑ X; compare Thoma, cited above, § 64). In these circumstances, they assumed responsibility for the statements included in their letter.", "101. Similar considerations apply to the allegation that in her office M.S. had covered the State coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska, which, as established in the defamation proceedings, was based on a rumour (see paragraph 25 above) (see Tønsbergs Blad A.S. and Haukom, cited above, § 95). The Court will revert to this issue later in its analysis of the applicants ’ duty of care to verify the veracity of the impugned information.", "102. Another important factor is whether the thrust of the impugned statements was primarily to accuse M.S. or rather to notify the competent State officials of conduct which to them appeared irregular or unlawful (see Zakharov, cited above, § 26). In its contextual examination of the disputed letter as a whole, the Court must carry out its own evaluation of the impugned statements (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, §§ 25-26, 22 February 2007).", "103. The applicants maintained that their intention had been to inform the competent authorities about certain irregularities and to prompt them to investigate and verify the allegations made in the letter (see paragraphs 17 and 53 above). The Court notes, however, that the impugned letter did not contain any “request” for investigation and verification of the allegations. Whilst the applicants expressed their expectation that the authorities “would react appropriately to [their] letter” (see paragraph 11 above), it is uncertain whether that expression concerned investigation or verification of the factual allegations about M.S. In any event, the Court cannot but note the applicants ’ statement in the letter that “a Bosniac should be appointed to that [radio ’ s director] position” (see paragraph 11 above).", "104. As to the consequences of the above accusations passed on to the authorities, the Court considers that there can be little doubt that when considered cumulatively and against the background of the specific context in which they were made (see paragraph 5 9 above), the conduct attributed to M.S. was to be regarded as particularly improper from a moral and social point of view. The allegations cast M.S. in a very negative light and were liable to portray her as a person who was disrespectful and contemptuous in her opinions and sentiments about Muslims and ethnic Bosniacs. The domestic courts held that the statements in question contained defamatory accusations that damaged M.S. ’ s reputation (see paragraph 28 above). The Court sees no reason to hold otherwise. On the contrary, the nature of the accusations was such as to seriously call into question M.S. suitability not only for the post of director of the BD radio for which she had applied, but also for her role as editor of the BD ’ s radio entertainment programme in a multi-ethnic public radio station.", "105. That these allegations were submitted to a limited number of State officials by way of private correspondence did not eliminate their potential harmful effect on the career prospects of M.S. as a civil servant and her professional reputation as a journalist. The Government argued that the impugned letter had served “as a means of political pressure” that had prevented the selection panel from appointing either of the candidates for the post. Without drawing any inferences as to whether the impugned statements in the letter played any role in the selection procedure that was ongoing at the time, the Court observes that M.S. was not appointed to the post of director of the BD radio.", "106. Lastly, the Court notes that the applicants ’ defamatory accusations about M.S. had been leaked to the press. Any conclusion as to how the impugned letter in the present case reached the media would veer precariously close to speculation. Irrespective of how the letter reached the media, it is conceivable that its publication opened a possibility for public debate and aggravated the harm to M.S. ’ s dignity and professional reputation.", "γ ) The authenticity of the information disclosed", "107. Another, and in the Court ’ s view, the most important factor relevant for the balancing exercise in the present case is the authenticity of the information passed on to the authorities.", "108. The Court refers to its finding that the activities of the applicants, who were playing the role of social watchdogs, warrant similar Convention protection to that afforded to the press (see paragraph 8 7 above). In the context of press freedom, the Court has held that special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, Bladet Tromsø and Stensaas, § 66; Pedersen and Baadsgaard, § 78, and Björk Eiðsdóttir, § 70, all cited above). These factors, in turn, require consideration of other elements such as whether the newspaper had conducted a reasonable amount of research before publication (see Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper presented the story in a reasonably balanced manner (see Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000 ‑ IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves (ibid., § 58).", "109. Similarly to newspapers, the Court considers that the applicants in the present case were bound by the requirement to verify the veracity of the allegations submitted against M.S. This requirement is inherent in the Code of Ethics and Conduct for NGOs (see paragraphs 4 6 and 8 6 above) and it is to be seen in the context of the “responsibilities” in the operation of NGOs (see paragraph 4 5 above). That the impugned allegations were communicated to the State authorities by means of private correspondence, albeit an important consideration, did not confer wholly unrestricted freedom on the applicants to submit unverified aspersions. The duty of the authorities to verify such allegations cannot be regarded as a substitute for the ordinary obligation of verification of factual statements that are defamatory, even of public officials. That the applicants were perceived (see paragraph 16 above) – and, indeed, acted as representatives of the interests of particular segments of the population in the BD – increased their duty to verify the accuracy of the information before they reported it to the authorities. The Court will analyse whether the applicants complied with this obligation in respect of each of the impugned statements. The reasonableness of the efforts made in this respect must be determined in the light of the situation at the time of the preparation of the letter, rather than with the benefit of hindsight (see, mutatis mutandis, Stankiewicz and Others, cited above, § 72).", "110. The information which the applicants passed on to the authorities, given its source, was twofold: 1) information which the applicants received from employees of the radio station and 2) information obtained in another way.", "111. The information under 1) concerned allegations of fact regarding the removal of the calendar of religious services during the month of Ramadan from a wall in the radio ’ s premises and the alleged ban on broadcasting sevdalinka. The domestic courts established that R.S. and O.S. (both employees of the radio station) had discussed those two issues with O.H., the member and legal representative of the first applicant in the case. However, they held that the employees ’ account was not accurately rendered in the applicants ’ letter. Both R.S. and O.S. confirmed that M.S. had removed the Ramadan religious calendar from a wall in the radio ’ s premises. However, they did not confirm the part of the applicants ’ statement that in doing so M.S. had “demonstratively tore [the calendar] to pieces”. Furthermore, O.S. confirmed that he had complained to the first applicant that M.S. had asked him to explain why sevdalinka had been broadcasted during the slot reserved in the programme for another type of music. However, there was nothing to show that O.S. had said that M.S. “ banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value”.", "112. The Constitutional Court of Bosnia and Herzegovina held that “there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter ...” (see paragraph 33 above ). Although a certain degree of hyperbole and exaggeration is to be tolerated, and even expected, concerning reporting by NGOs (see Steel and Morris, cited above, § 90), this discrepancy was not trivial, but loaded the account obtained from the employees thus aggravating the depiction of M.S. as disrespectful of the cultural and ethnic identity of Bosniacs and Muslims. The Court underlines that the applicants, as NGOs whose members enjoyed a good reputation in society (see paragraph 5 9 above), were required to present an accurate rendering of the employees ’ account, as an important element for the development and maintaining of mutual trust and of their image as competent and responsible participants in public life. Furthermore, the disputed allegations were presented as statements of fact rather than as value judgments. The domestic courts held that that inconsistency was imputable to the applicants. The latter have not submitted any evidence that could cast doubt on that finding.", "113. The information under 2) above concerned the accusations that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska and that in a local newspaper she had made a statement that “Muslims were not a people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments.”", "114. As to the alleged “incident” regarding the coat of arms, the domestic courts established that it had been discussed at the meeting of the applicants held before the preparation of the letter. At that meeting S.C., the representative of the second applicant in the case, had confirmed that he had heard people speaking in the city about the alleged incident (see paragraph 25 above). The applicants did not produce, either in the defamation proceedings or in the proceedings before the Court, any evidence that they had made any effort to verify the veracity of that rumour before reporting it to the authorities. On the basis of oral evidence from three employees of the radio produced at the trial, the domestic courts established the inaccuracy of that information (see paragraph 27 above).", "115. Even more importantly, the applicants ’ reporting of M.S. as the author of the impugned article in the newspaper was based on guess-work by “a distinguished member of [an applicant organisation] ...” (see paragraphs 25 and 26 above). Whereas a statement as reported by the applicants had indeed been given in the article in question, the domestic courts established that M.S. had not been the author. The Court considers that the verification of that fact prior to reporting would not have required any particular effort on the part of the applicants. The identity of the author of that statement was readily ascertainable and would have required simple research by the applicants. Despite the seriousness of their accusation against M.S., the applicants made this statement frivolously without making any attempt, prior to reporting, to verify the authenticity of their allegation. The Court stresses that the more serious the accusation, the higher diligence is required before bringing it to the attention of the relevant authorities (see Pedersen and Baadsgaard, cited above, §§ 80 and 87). The applicants also failed to inform the recipients of the letter about its inaccuracy after they had discovered that M.S. had not been the author of the impugned statement (see paragraph 26 above). They put forward no reason for failing to do so.", "116. In addition, and in the context of the particular circumstances of the case, the Court notes that M.S. was not given the opportunity to comment on the allegations which the applicants intended to bring to the attention of the State authorities (see Bergens Tidende and Others, cited above, § 58). No argument was submitted that such an effort would have been impossible or inappropriate in the circumstances of the case.", "117. The BD Court of Appeal held that the applicants “did not prove the truthfulness [of these statements] ... which they knew or ought to have known were false” (see paragraphs 27 and 28 above). The Constitutional Court further added that those statements concerned “manifestly untrue facts” and that the applicants “did not make reasonable efforts to verify the truthfulness of [those] statements of fact before [reporting], but merely made [those statements]” (see paragraph 33 above). The Court finds no reasons to depart from that finding. It concludes accordingly that the applicants did not have a sufficient factual basis for their impugned allegations about M.S. in their letter.", "δ ) The severity of the sanction", "118. The last element to be taken into consideration is the severity of the sanction imposed on the applicants. In this connection the Court reiterates that the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Sürek v. Turkey (no. 1) [GC], no. 2668 2/95, § 64, ECHR 1999 ‑ IV; Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999 ‑ IV; Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004-VI; and Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001 ‑ I).", "119. It notes that the BD Court of Appeal made two orders against the applicants: that they inform the authorities that they retracted their letter (retraction order), failing which they would have to pay EUR 1,280 jointly in respect of non-pecuniary damages (payment order), and that they give the judgment to the BD radio and television and to two newspapers for publication at the applicants ’ own expense (publication order) (see paragraph 29 above). The Chamber “had regard to the award of damages made against the applicants in the context of a civil action and did not find it to be disproportionate” (see § 35 of the Chamber judgment).", "120. The Court does not consider that the order requiring the applicants to retract the letter within fifteen days or pay damages raises any issue under the Convention. It was only after expiration of the time-limit set by the BD Court of Appeal that the domestic courts began taking measures to enforce the payment order. The Court is further satisfied that the amount of damages which the applicants were ordered to pay was not, in itself, disproportionate. Accordingly, it is of no relevance that in determining this amount the BD Court of Appeal took into account the publication of the impugned letter in the media despite not having relied on that fact in finding the applicants liable for defamation (see paragraphs 29 and 60 above). Similar considerations apply to the publication order.", "ε) Conclusion", "121. In view of the foregoing, the Court discerns no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them (see Von Hannover (no. 2), cited above, § 107, and Perinçek, cited above, § 198). It is satisfied that the disputed interference was supported by relevant and sufficient reasons and that the authorities of the respondent State struck a fair balance between the applicants ’ interest in free speech, on the one hand, and M.S. ’ s interest in protection of her reputation on the other hand, thus acting within their margin of appreciation (see Tammer, cited above, § 60, and Pedersen and Baadsgaard, cited above, § 68).", "122. Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Application no. 14277/04 and the Court ’ s judgment of 12 February 2008", "5. The applicant was born in 1970 and lives in Sestaci.", "6. The applicant is a journalist who, at the time of the events, was employed as Head of the Press Department of the Prosecutor General ’ s Office. In January 2003 he sent to a newspaper two letters containing information about pressure put on the Prosecutor General ’ s Office by a high-ranking politician. In one of the letters, the Vice-President of Parliament expressed discontent that several police officers were being criminally prosecuted for allegedly ill-treating and unlawfully detaining suspects. In another letter it was stated that one of those police officers had previously been convicted of similar offences, but had been exempted from serving a sentence and had soon been re-employed by the Ministry of Internal Affairs. Subsequently, the newspaper published an article on the basis of the letters. The applicant was then dismissed by the Prosecutor General for having violated the internal regulations of the Press Department. In proceedings for his reinstatement brought against the Prosecutor General ’ s Office, he argued before the domestic courts that the disclosure of the letters had been in good faith and had pursued the aim of “fighting corruption and trading in influence ”. He argued that, in any event, the letters could not be classified as secret under domestic law. The domestic courts found in favour of the applicant ’ s employer, on the grounds that the applicant had breached his duty of confidentiality by disclosing the letters, and that he had failed to consult other heads of departments before disclosing the letters to the newspaper.", "7. On 30 March 2004 the applicant lodged an application with the Court.", "8. In a judgment of 12 February 2008 the Grand Chamber of the Court held that the applicant ’ s dismissal from his employment had infringed his right to freedom of expression guaranteed by Article 10 of the Convention (see Guja v. Moldova [GC], no. 14277/04, ECHR 2008 ).", "9. The Court found that, for the purposes of Article 10 § 2, the measure taken against the applicant had constituted an interference with his right to freedom of expression, had been “prescribed by law”, and had pursued a legitimate aim.", "10. As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court noted firstly that the applicant had not had alternative channels for disclosing the letters, and that, in the circumstances of the case, external reporting, even to a newspaper, could be justified. Against that background, it also found that the information disclosed by the applicant was of major public interest, because it concerned such issues as the separation of powers, improper conduct by a high-ranking politician, and the government ’ s attitude towards police brutality. Balancing the different issues involved, the Court also took into consideration the detriment caused to the Prosecutor General ’ s Office by the disclosure. In doing so, the Court came to the conclusion that the public interest in having information about undue pressure and wrongdoing within the Prosecutor General ’ s Office revealed was so important in a democratic society that it outweighed the interest in maintaining public confidence in the Prosecutor General ’ s Office. Lastly, the Court noted that the applicant had acted in good faith and that the most severe sanction possible had been imposed on him. In view of all the considerations, the Court came to the conclusion that the interference with the applicant ’ s right to freedom of expression, in particular his right to impart information, had not been “necessary in a democratic society”, and that there had been a breach of Article 10 of the Convention.", "11. As to the application of Article 41, the Court ordered Moldova to pay the sum of 10,000 euros (EUR) for pecuniary and non-pecuniary damage, and EUR 8,413 for costs and expenses.", "B. Subsequent proceedings before the Moldovan authorities", "12. After the Court had delivered the above judgment, the applicant applied to the domestic courts to have the domestic judgments confirming his dismissal set aside. He was successful, and on 28 May 2008 the Supreme Court of Justice ordered his reinstatement. On the same day the applicant lodged an application for reinstatement with the Prosecutor General ’ s Office.", "13. According to the applicant, on 29 May 2008 he had a meeting with the Prosecutor General, who asked him to resign from his position. As the applicant refused, the Prosecutor General told him that “he had enough wits to force him to do that”. He was told to go home and wait for his employment order. The Government disputed the above submissions.", "14. On 5 June 2008 the Prosecutor General issued an order reinstating the applicant as Head of the Press Department and ordering that his salary arrears be paid. On the same date the Prosecutor General wrote to the head of the trade unions of the Prosecutor General ’ s Office, seeking the trade unions ’ approval of the applicant ’ s dismissal from his employment on the basis of section 14(8) of the Public Service Act (see paragraph 2 3 below). In accordance with the labour legislation in force, the trade unions ’ approval was a necessary step in dismissing the applicant, and it was obtained the next day.", "15. On 6 June 2008 the applicant was invited to the Prosecutor General ’ s Office and presented with the employment order. According to the applicant, he was, however, not allocated an office and not given a badge to access the building. Each morning he had to wait outside the building until one of his superiors allowed him to enter. Since he had no office, he stayed in the library or in the press office. However, when other employees from the press office had to leave the office, he was locked outside it with the explanation that his superiors had not allowed him access to sensitive information. The applicant was not given any tasks. The Government also disputed the above submissions.", "16. On 16 June 2008 the applicant was presented with a dismissal order, effective as of 10 June 2008. The dismissal was based on section 14(8) of the Public Service Act. The reason for the applicant ’ s dismissal was the appointment of a new Prosecutor General in 2007. According to the order, the trade unions had consented to his dismissal on 6 June 2008.", "17. On 10 July 2008 the applicant contested the order of 16 June 2008 before the Chisinau Court of Appeal (“the Court of Appeal”) and sought reinstatement. He presented details about his meeting with the Prosecutor General of 29 May 2008 and about his discussion with him (see paragraph 13 above). He also stated that since his re-employment on 6 June 2008 he had not received a badge to access the building, had not been given an office, and had not been given any tasks. Moreover, on the very day of his reinstatement, the Prosecutor General had obtained the trade unions ’ approval of his dismissal. He argued, inter alia, that since 2003 the Prosecutor General had changed twice, and that he was the first person to be dismissed on the basis of section 14(8) of the Public Service Act. The applicant also argued that that section was not applicable in the circumstances of the case, since the position of Head of the Press Department of the Prosecutor General ’ s Office was not part of the cabinet of the Prosecutor General. He expressed the view that his dismissal constituted a failure on the part of the State to abide by the Court ’ s judgment of 12 February 2008.", "18. The Prosecutor General ’ s Office did not contest the applicant ’ s allegations about the Prosecutor General ’ s discussion with him and about the treatment to which he had been subjected during his employment. It only submitted that labour-law provisions had been respected at the time the applicant had been dismissed.", "19. On 17 December 2008 the Court of Appeal dismissed the applicant ’ s action and ruled that his dismissal had been in accordance with the law. In particular, the court found that since the new Prosecutor General had been appointed in 2007, he had the power to terminate the applicant ’ s employment on the basis of section 14(8) of the Public Service Act. The Court of Appeal considered that the Court ’ s judgment of 12 February 2008 had been implemented once the domestic courts had revised the judgments confirming his dismissal in 2003. The Court of Appeal did not give any consideration to the applicant ’ s arguments concerning his discussion with the Prosecutor General and/or his experience during the time of his employment.", "20. The applicant lodged an appeal on points of law with the Supreme Court of Justice in which he submitted, inter alia, that the Prosecutor General ’ s Office had failed to prove wrong his contentions about its failure to issue him with a badge or an office and to give him tasks. After making reference to the Court ’ s judgment of 12 February 2008, the applicant claimed that his reinstatement had been simulated, referring to it as “the so ‑ called reinstatement”. He also contended that his dismissal had not been the result of an ordinary labour dispute, and that in fact the Prosecutor General ’ s Office had acted in bad faith with a view to getting rid of an inconvenient employee ( salariat incomod ). However, the appeal on points of law was dismissed on 29 April 2009. Like the Court of Appeal, the Supreme Court did not make any assessment of the applicant ’ s allegations about his discussion with the Prosecutor General and the treatment to which he had been subjected during his ten days of employment. The Supreme Court dismissed the applicant ’ s argument about the State ’ s failure to execute the Court ’ s judgment of 12 February 2008 by finding that that judgment had been enforced once the domestic judgments had been reviewed and the applicant had been reinstated in his previous position.", "C. Execution of the Court ’ s judgment of 12 February 2008", "21. The applicant informed the Department for the Execution of Judgments of the European Court of Human Rights about the developments described above, and alleged that his being dismissed once again and the outcome of the new reinstatement proceedings amounted to a failure by the State to comply with the Court ’ s judgment of 12 February 2008. In an action report of 2 December 2016 (see DH-DD(2016)1446 ) the Government informed the Committee of Ministers about the general and individual measures taken in the course of implementing the Court ’ s judgment of 12 February 2008, and expressed the view that that judgment had been enforced once the Supreme Court had reviewed and quashed its own judgment of 26 November 2003. They asked the Committee of Ministers to terminate the execution procedure in respect of that case.", "22. At the time of issuing the present judgment, the procedure for supervising the execution of the judgment of 12 February 2008 is still ongoing before the Committee of Ministers." ]

[ "II. RELEVANT DOMESTIC LAW AND NON-CONVENTION MATERIAL", "A. Relevant domestic law and practice", "23. Sections 14(8), 28(1)(h) and 28(2) of the Public Service Act, as in force at the material time, provided that personnel such as counsellors, aides, press attachés and secretaries from the President ’ s cabinet, Parliament, Ministries and other public authorities should be employed by the head of those authorities, and should have their employment terminated when a new head of those authorities was appointed, by the newly appointed head.", "B. Relevant non-Convention material", "24. On 19 January 2000, at the 694th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. The main idea of the recommendation was that States would be invited to introduce mechanisms to achieve, as far as possible, restitutio in integrum (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 33, ECHR 2009).", "25. Paragraph 35 of the Report by the Parliamentary Assembly of the Council of Europe on the execution of judgments of the European Court of Human Rights (doc. 8808, 12 July 2000) reads as follows:", "“Since the Court does not tell States how to apply its decisions, they must consider how to do so themselves. The obligation to comply with judgments is an obligation to produce a specific result – to prevent further violations and repair the damage caused to the applicant by the violation. ...”", "26. Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly of the United Nations at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows:", "Article 35: Restitution", "“ A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:", "(a) is not materially impossible;", "(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "27. The applicant alleged that his second dismissal from his employment, after the Court had found a violation of his freedom of expression, constituted a violation of his freedom of expression under Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "1. The parties ’ submissions", "28. The Government submitted that the Court was not competent ratione materiae to deal with allegations of non-enforcement of its judgment of 12 February 2008, because this task was within the competence of the Committee of Ministers of the Council of Europe.", "29. The applicant disagreed with the Government, and argued that the present case concerned new factual circumstances which had not been examined in application no. 14277/04, and which had arisen after the Court ’ s judgment of 12 February 2008 had been issued.", "2. The Court ’ s assessment", "30. According to Article 46 of the Convention, a respondent State found to have breached the Convention or its Protocols is under an obligation to abide by the Court ’ s decisions in any case to which it is a party. In other words, a total or partial failure to execute a judgment of the Court can engage the State Party ’ s international responsibility. The State Party in question will be under an obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects. As regards the individual measures to be taken in response to a judgment, their primary aim is to achieve restitutio in integrum, that is to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among many other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 11, Series A no. 85; Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B; and Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 85 ).", "31. The States should organise their legal systems and judicial procedures so that this result may be achieved (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 97, and Recommendation (2000) 2 of the Committee of Ministers). This reflects the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting of restoring the situation that existed before the wrongful act was committed, provided that restitution is not “materially impossible” and “does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation” (Article 35 of the Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts). In other words, while restitution is the rule, there may be circumstances in which the State responsible is exempted – fully or in part – from this obligation, provided that it can show that such circumstances obtain (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 86 ).", "32. The Court reiterates that findings of a violation in its judgments are in principle declaratory (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31; Lyons and Others v. the United Kingdom, (dec.), no. 15227/03, ECHR 2003 ‑ IX; and Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004).", "33. The Court has consistently emphasised that the question of compliance by the High Contracting Parties with the Court ’ s judgments falls outside its jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 56, 18 October 2011, and Bochan v. Ukraine (no.2) [GC], no. 22251/08, § 33, ECHR 2015 ). It has therefore refused to examine complaints concerning the failure by States to execute its judgments, declaring such complaints inadmissible ratione materiae (see Fischer v. Austria (dec.), no. 27569/02, ECHR 2003 ‑ VI; and Egmez v. Cyprus (no. 2) (dec.); no 12214/07, §§ 48-51, 18 September 2012).", "34. Under Article 46 § 2, the Committee of Ministers is vested with the powers to supervise the execution of the Court ’ s judgments and evaluate the measures taken by respondent States. It is for the Committee of Ministers to assess, in the light of the above principles of international law and the information provided by the respondent State, whether the latter has complied in good faith with its obligation to restore as far as possible the situation existing before the breach. While the respondent State in principle remains free to choose the means by which it will comply with this obligation, it is also for the Committee of Ministers to assess whether the means chosen are compatible with the conclusions set out in the Court ’ s judgment (see Scozzari and Giunta, v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 241-42; and Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 247- 49, ECHR 2013 (extracts) ).", "35. The Committee of Ministers ’ role in the sphere of execution of the Court ’ s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment. Measures taken by a respondent State to remedy a violation found by the Court which raise a new issue undecided by the original judgment fall within the Court ’ s jurisdiction and, as such, form the subject of a new application that may be dealt with by the Court (see Liu v. Russia (no. 2), no. 2915 7 /09, 26 July 2011; Emre v. Switzerland (no. 2), no. 5056/10, 11 October 2011; Egmez (no. 2), cited above, § 52; and Bochan (no. 2), cited above, § 36; see also Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003 ‑ IV, with references to Pailot v. France, 22 April 1998, § 57, Reports of Judgments and Decisions 1998 ‑ II; Leterme v. France, 29 April 1998, Reports 1998-III; Rando v. Italy, no. 38498/97, § 17, 15 February 2000).", "36. The Court ’ s case-law indicates that the determination of the existence of a “new issue” very much depends on the specific circumstances of a given case, and that distinctions between cases are not always clear-cut (see Bochan (no. 2), cited above, § 34, and, for an examination of the case ‑ law, see Egmez v. Cyprus, no. 30873/96, § 54, ECHR 2000 ‑ XII). The powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court ’ s judgments and assess the implementation of measures adopted by States under that Article are not encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 67). It is also immaterial whether the execution proceedings in the previous case are pending or terminated by the Committee of Ministers.", "37. Turning to the facts of the present case, the Court notes that the proceedings adjudicated on by the domestic courts after the applicant ’ s second dismissal from his employment were new in relation to the domestic proceedings forming the subject of the Court ’ s judgment of 12 February 2008, and were subsequent to those proceedings. As for the applicant ’ s complaint in the present case, the Court notes that it relates to his being dismissed once again and to the reasons given by the domestic courts for dismissing his reinstatement action. That being so, the applicant ’ s second dismissal from his employment and the new proceedings concerning his reinstatement constitute new information in relation to the Court ’ s previous judgment. Thus, the question of whether the applicant ’ s second dismissal was compatible with the requirements of Article 10 of the Convention can be examined separately from the aspects relating to the execution of the judgment delivered by the Court on 12 February 2008 (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 54, ECHR 2017 (extracts) ).", "38. The Court further notes that a supervision procedure in respect of the execution of the judgment is still ongoing before the Committee of Ministers (see paragraphs 21 -2 2 above), although that does not prevent the Court from considering a new application in so far as it includes new aspects which were not determined in the initial judgment.", "39. The Court therefore finds that Article 46 of the Convention does not preclude its examining the new complaint under Article 10 of the Convention. The Government ’ s preliminary objection as to lack of jurisdiction ratione materiae must therefore be dismissed.", "40. Furthermore, the Court finds that the complaint under Article 10 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It therefore declares the complaint admissible.", "B. Merits", "1. The parties ’ submissions", "41. The applicant argued that his deficient reinstatement and his second dismissal had amounted to an interference with his right to freedom of expression as guaranteed by Article 10 of the Convention. That interference had not been prescribed by law, had not pursued a legitimate aim, and had not been necessary in a democratic society.", "42. In support of the above submissions, the applicant argued that the Prosecutor General had not opposed his reinstatement on the basis of section 14(8) of the Public Service Act during the Supreme Court proceedings leading to the revision of the domestic court judgments of 2003. Section 14(8) had been relied on for the first time in the Prosecutor General ’ s order of dismissal dated 1 6 June 2008.", "43. The applicant further submitted that between 2003 and 2008 the Prosecutor General had changed twice, and nobody apart from him, including the head of the press department, had been dismissed on the basis of section 14(8) of the Public Service Act.", "44. The Prosecutor General had never intended to abide by the Court ’ s judgment of 12 February 2008 and the reviewed judgment of the Supreme Court of Justice, and had therefore exerted pressure on him. In particular, the applicant had not been allocated an office, had not been provided with a badge, and had not been given tasks.", "45. The Government disagreed with the applicant and argued that the Moldovan authorities had complied with the Court ’ s judgment of 12 February 2008 by reviewing the former court judgments and reinstating the applicant in his previous position. The Government further submitted that the applicant ’ s second dismissal in 2008 was totally unrelated to the reasons for which he had been dismissed in 2003. They reiterated the position adopted by the domestic authorities and the courts : the applicant had been made redundant on the basis of section 14(8) of the Public Service Act, owing to the appointment of a new Prosecutor General. According to the Government, the new Prosecutor General ’ s approach was to promote a new team of people in whom he could have confidence. All of the applicant ’ s rights had been respected, including his right to have the trade unions ’ approval before his dismissal. He had been paid all the salary which had been due to him, thus he had enjoyed full restitutio in integrum.", "46. The Government also contested the applicant ’ s submissions about his meeting with the Prosecutor General before his reinstatement and his lacking an office, a badge and tasks after his reinstatement. They submitted that, in view of the lengthy period of time which had elapsed since the events, they were not in a position to prove the contrary.", "2. The Court ’ s assessment", "47. In interpreting and applying Article 10 of the Convention in the context of the workplace, the Court relied on the following general principles in Guja (cited above, § § 69-78 ):", "“ (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "70. The Court further reiterates that Article 10 applies also to the workplace, and that civil servants, such as the applicant, enjoy the right to freedom of expression (see paragraph 52 above). At the same time, the Court is mindful that employees have a duty of loyalty, reserve and discretion to their employer. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion (see Vogt, cited above, § 53; Ahmed and Others, cited above, § 55; and De Diego Nafría v. Spain, no. 46833/99, § 37, 14 March 2002).", "71. Since the mission of civil servants in a democratic society is to assist the government in discharging its functions and since the public has a right to expect that they will help and not hinder the democratically elected government, the duty of loyalty and reserve assumes special significance for them (see, mutatis mutandis, Ahmed and Others, cited above, § 53.) In addition, in view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one.", "72. ... the Court notes that a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest. The Court thus considers that the signaling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large.", "...", "73. In the light of the duty of discretion referred to above, disclosure should be made in the first place to the person ’ s superior or other competent authority or body. It is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public (see, mutatis mutandis, Haseldine, cited above). In assessing whether the restriction on freedom of expression was proportionate, therefore, the Court must take into account whether there was available to the applicant any other effective means of remedying the wrongdoing which he intended to uncover.", "74. In determining the proportionality of an interference with a civil servant ’ s freedom of expression in such a case, the Court must also have regard to a number of other factors. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). In a democratic system, the acts or omissions of government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the media and public opinion. The interest which the public may have in particular information can sometimes be so strong as to override even a legally imposed duty of confidence (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I, and Radio Twist, a.s. v. Slovakia, no. 62202/00, ECHR 2006-XV).", "75. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see, mutatis mutandis, Morissens v. Belgium, no. 11389/85, Commission decision of 3 May 1988, DR 56, p. 127, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III).", "76. On the other side of the scales, the Court must weigh the damage, if any, suffered by the public authority as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see, mutatis mutandis, Hadjianastassiou v. Greece, 16 December 1992, § 45, Series A no. 252, and Stoll, cited above, § 130). In this connection, the subject matter of the disclosure and the nature of the administrative authority concerned may be relevant (see Haseldine, cited above).", "77. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (ibid.). It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet, means of remedying the wrongdoing was available to him or her.", "78. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, attentive analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49). ”", "48. Turning to the facts of the present case, the Court considers it irrelevant to determine whether or not the Moldovan State had an obligation, in the light of the Guja judgment (cited above), to reopen the proceedings confirming the applicant ’ s dismissal in 2003 and to reinstate him in his previous position. As stated above, it is for the State concerned to decide, under the supervision of the Committee of Ministers, what measures are most appropriate in the context of executing the Court ’ s judgment in any given case. The Court takes note of both the decision to reopen the domestic proceedings and the order for the applicant to be reinstated in his previous position.", "49. For the purposes of examining the present case, it is only what followed the applicant ’ s reinstatement that is of relevance. The Court considers that the central issue here is determining whether or not the applicant ’ s second dismissal from his employment constituted an attempt by the authorities to dispose of an employee whom they deemed inconvenient in the light of the events of 2003, in other words whether or not the applicant received the treatment he complained of as a result of his whistle ‑ blowing in 2003. The determination of the existence of a new interference with the applicant ’ s right to freedom of expression will depend on whether the answer to that question is affirmative.", "50. It is the Government ’ s position that the applicant ’ s dismissal in June 2008 was unrelated to the exercise of his freedom of expression back in 2003. They contend that the State fully complied with the judgment of 12 February 2008 after paying the just satisfaction and after the Supreme Court reviewed the judgments confirming the applicant ’ s dismissal in 2003.", "51. The applicant argues the contrary and alleges that the State authorities only created appearances of reinstating him in the position he occupied before 2003, while in reality they continued the retributory measures against him.", "52. The Court notes firstly that the applicant was dismissed from his employment in June 2008 on the basis of section 14(8) of the Public Service Act. As interpreted by the Court of Appeal in its decision of 17 December 2008 (see paragraph 1 9 above), that section gave the newly appointed Prosecutor General the power to dismiss the applicant, rather than imposed an obligation on him to do so. Moreover, as indicated by the applicant ’ s submissions, which were not disputed by either the Government in the proceedings before the Court or by the Prosecutor General ’ s Office in the domestic proceedings, the applicant was the first employee of the Prosecutor General ’ s Office to be dismissed on the basis of that provision. Between 2003 and 2008 two new Prosecutor Generals were appointed, and nobody was dismissed on the basis of section 14(8).", "53. The Court notes next that the Prosecutor General sought the trade unions ’ approval of the applicant ’ s dismissal on the very day his reinstatement was ordered, on 5 June 2008 (see paragraph 14 above). The Court finds it unusual for an employer acting in good faith to employ a person and simultaneously seek his or her dismissal, in the absence of sudden and unexpected new circumstances. It does not appear from the Government ’ s submissions that any such circumstances arose on 5 June 2008.", "54. The Court further notes that the Government disputed the applicant ’ s allegations about his discussion with the Prosecutor General and the treatment to which he had been subjected during the ten days of his employment in June 2008. Unlike the applicant, it was open to the Government to present at least some evidence in support of their position. In particular, they could have presented a copy of the applicant ’ s badge permitting him access to the building of the Prosecutor General ’ s Office, or any other documents proving that the applicant received a badge. Similarly, the applicant must have left traces of his work or work - related activities during his ten days of employment, which could have been presented in support of the Government ’ s allegations.", "55. The Court also notes that the same allegations were made by the applicant in the domestic proceedings. In particular, he informed the courts about his discussion with the Prosecutor General and the fact that he had not been issued with a badge or allocated an office and had not been given any tasks. It appears from the material in the case file that the Prosecutor General ’ s Office did not dispute those allegations, let alone adduce any evidence to the contrary.", "56. In describing the aim pursued in dismissing the applicant, the Government submitted that the Prosecutor General had wanted to promote a new team of people in whom he could have confidence. The Court notes that no such explanation was given by the Prosecutor General during the domestic proceedings, and that it was the Government which presented it for the first time during the Court proceedings. This submission must therefore be treated with caution, especially in the absence of any form of substantiation (see Nikolov v. Bulgaria, no. 38884/97, § 74 et seq., 30 January 2003).", "57. In view of the above and on the basis of the material before it, the Court considers that there are sufficiently strong grounds for drawing an inference that the applicant ’ s second dismissal from his employment was not related to an ordinary labour dispute, but had all the characteristics of another act of retaliation for his disclosing the letters in 2003. The manner in which the events unfolded and their timing could make an independent observer reasonably conclude that the applicant ’ s second dismissal was not unrelated with the events of 2003. In fact, the Prosecutor General did not even attempt to maintain the impression of a simple labour dispute. Instead, he acted in such a way as to make it obvious to the applicant and others that the applicant was no longer welcome to work at his old workplace. Here the Court wishes to stress that the obligation to reinstate does not preclude future dismissal on another, justified ground unrelated to the original dismissal (see, mutatis mutandis, Sidabras and Others v. Lithuania, nos. 50421/08 and 56213/08, §§ 107- 12, 23 June 2015).", "58. With the above in mind, the Court considers that the applicant ’ s dismissal from his employment in June 2008 amounted to an “interference by a public authority” with his right to freedom of expression under the first paragraph of Article 10 of the Convention. Such interference will constitute a breach of Article 10 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.", "59. The Court does not find it necessary to decide whether the above interference was “prescribed by law” and whether it pursued a legitimate aim. With regard to whether it was “necessary in a democratic society”, the Court does not see any reason to depart from its findings in Guja (cited above, §§ 80-97). Moreover, what is of great importance for the Court in the present case is the fact that the domestic courts did not react in any way to the applicant ’ s allegations that his dismissal was in fact an attempt by the authorities to dispose of an employee whom they deemed inconvenient in the light of the events of 2003. The courts paid no attention at all to the applicant ’ s allegations concerning the treatment to which he had been subjected during his ten days of employment. They did not examine whether the dismissal constituted an interference with the applicant ’ s rights guaranteed by Article 10, or whether the decision to dismiss the applicant again under section 14(8) of the Public Service Act was justified under Article 10 § 2 of the Convention, bearing in mind the events of 2003 and the Guja judgment.", "60. Instead of fulfilling their primary role under the Convention protection system by examining factors which were central and essential under the Convention, the domestic courts limited their examination of the case to verifying whether formalities such as the approval by the trade unions had been obtained, and whether section 14(8) of the Public Service Act was applicable to the applicant ’ s situation. An issue as important as the alleged repeated failure to observe the applicant ’ s rights as found to have been breached in Guja (cited above) was not among the questions examined by the domestic courts, in spite of the fact that that issue was at the heart of the applicant ’ s defence.", "61. In the light of the above, the Court comes to the conclusion that the interference with the applicant ’ s right to freedom of expression, in particular his right to impart information, was not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "62. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "63. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.", "64. The Government contested the claim and argued that the applicant ’ s claims were ill-founded and excessive.", "65. The Court considers that the applicant must have suffered pecuniary and non-pecuniary damage as a result of his dismissal. Making its assessment on an equitable basis, it awards him EUR 10,000.", "B. Costs and expenses", "66. The applicant also claimed EUR 1,500 for costs and expenses incurred before the Court.", "67. The Government maintained that the claim was excessively high.", "68. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire amount claimed for costs and expenses.", "C. Default interest", "69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1974 and lives in Budapest.", "7. From 2006 the applicant worked as a human resources management expert at Bank O. His tasks included the analysis and calculation of salaries and staffing management. At the material time the applicant ’ s employer initiated a reform of its remuneration policy, in which the applicant was also involved.", "8. According to the code of ethics of the bank, the applicant was under an obligation not to publish formally or informally any information relating to the functioning and activities of his employer.", "9. In January 2011 the applicant, together with Ms A.N., started a knowledge-sharing website for human resources management-related publications and events. The website also contained a presentation of the applicant with his photograph, describing him as an expert in human resources management and indicating that he worked in the human resources (HR) department of a large domestic bank, without mentioning his employer.", "10. In January 2011 two articles were published on the website. The article “ New year, new strategy – Really new? Really a strategy?” was written by Ms A.N. and contained the following passage:", "“I was called today in connection with a conference and was asked some very exciting and inspiring questions. How does one prepare a HR strategy? What is the role of HR strategy? Do you have to employ HR professionals to create a HR strategy? Do you know how to link business objectives to HR strategy? We could say that this is a boring issue and these are boring questions, particularly at the beginning of the year, when every portal overwhelms us with articles like homework on this topic, in a partly false belief that creating such a strategy is connected to the beginning of the calendar year in every company. The subject is painfully topical, at the same time. This is only my opinion, not the result of a representative survey or international research carried out by British scientists. Simply, I think that some HR professionals should be taught as regards strategy that the connecting of business objectives and HR strategy is not clear in all organisations. (The reasons are various, but discussing them would use up my ‘ character limit ’ by itself, so I will not cover this issue.) We read often about problems regarding ‘ how HR could be a strategic partner ’. This approach is always surprising to me. It is rather like a ‘ learn Japanese in two weeks ’ course. Both learning Japanese and building strategic partnerships are the result of long-term processes. A responsible professional should not give the impression that one article or one blog entry, or concentrating for five minutes a day, is enough. The process itself cannot be done away with. A detailed knowledge of the organisational structure, the education system and recruiting policy is not enough. We have to be able to break away from the interests of our professional field if the interests of the organisation so require. We have to know the business, the market, our competitors, our service and our products. If someone complains that ‘ he is not taken seriously by the management ’, I always think about learning Japanese. None of this should be an aim in itself, but the result of hard professional work .. (I would point out that unfortunately we have met people whose cousins worked in a place where even this was unable to achieve the desired outcome.)”", "11. The second article “ Sweet 16%” was written by the applicant and contained the following passage:", "“How sweet is that big spoonful of jam? – Motivation in the light of tax changes", "A topic which concerns everybody today, and which led us to take the fresh fruit jar off the shelf too: as of 2011, according to the Personal Income Tax Act, all income payable as salary is subject to the 16% tax rate. The numbers indicate that in reality the only people who will benefit from this are those whose monthly earnings exceed HUF 300,000, excluding family allowances. This amount exceeds the current average income level by far. We can see in the enclosed table how net payments will change from 2011. The majority of companies plan to modify their remuneration policies and the level of wage increases, the latter being expected to fall in those jobs where tax change results in positive net income. The other thing that caused my thoughts to race is that tax is payable after rewards and bonuses, just as it is payable after salary. This may also mean that bonuses will gain in importance. Certainly, I have to say from a professional point of view that rewarding achievements by means other than fixed wages results in achievements and their fluctuation becoming more traceable. On the other hand, this trend runs counter to the professional efforts of recent years aimed at restricting the proportion of bonus payments and fixing remuneration systems in a more responsible manner.", "Further unanswered questions leave a bitter taste in our mouth after the first sweet mouthful. Following the changes, how will all this follow inflation as regards real net salaries? How committed and motivated will employees remain in the light of the changes? Will it matter to employees whether changes are decided at State or company level? What impact will different rates of salary increase and wage development have? My opinion may be surprising in certain respects and I have some further exciting comments to make as well, which I would like to share with you in the course of our discussions. So I look forward to your opinions and comments.”", "12. The applicant ’ s employment was terminated on 11 Februar 2011 for breaching his employer ’ s confidentiality standards. The bank argued that the applicant ’ s conduct in providing educational services in the field of human resources management had infringed its economic interests. Moreover, given the nature of his position, the applicant was in possession of information whose publication would have interfered with the bank ’ s business interests.", "13. The applicant instituted proceedings before the Budapest Labour Court challenging his dismissal.", "14. On 26 June 2012 the Budapest Labour Court dismissed his action, finding that the website and the content of the articles constituted a breach of the duty of mutual trust. It pointed out that the applicant operated the website and that the question whether he was the author of the impugned articles was irrelevant for the court ’ s assessment. It also found it established that the applicant ’ s conduct had jeopardised Bank O. ’ s business interests, in breach of Article 3 § 5 of the Labour Code (see paragraph 20 below), irrespective of whether actual damage had occurred. The court found that the applicant had revealed information relating to his employment, since the knowledge shared on the website had necessarily been acquired during his employment at Bank O.", "15. The applicant appealed, arguing that he could not be held liable for the publication of articles written by others and that he did not operate the website. Furthermore, he had not sought to reveal the business secrets of his employer but to engage in professional discussions.", "16. On 26 March 2013 the Budapest High Court upheld the applicant ’ s appeal. The High Court considered that it was irrelevant who had written the impugned articles, since the applicant featured as an expert on the website and was thus necessarily associated with the articles. Nonetheless, the articles had discussed human resources policies in general terms that could not be linked to Bank O. The High Court also found that the knowledge-sharing element of the website did not mean that the applicant had intended to reveal information acquired through his work. It concluded that the applicant ’ s conduct had not jeopardised his employer ’ s business interests and that his dismissal for breach of trust had therefore not been lawful.", "17. On 3 September 2014 the Kúria upheld a request for review made by the bank, endorsed the findings of the first-instance court and observed that the applicant ’ s conduct could endanger his employer ’ s business interest (see paragraph 14 above). It concluded that the similarities between the website and the applicant ’ s tasks at his workplace demonstrated that he had provided information about current policies at his workplace and that he had intended to share knowledge acquired there about issues relevant to his tasks, in breach of his employer ’ s code of ethics.", "18. The applicant lodged a constitutional complaint, maintaining that his activities concerned the exercise of his right to freedom of expression, which had not been taken into consideration by the courts.", "19. The decision of the Constitutional Court, issued on 26 June 2017, contained the following passages:", "“... Article 8 § 3 of the Labour Code, as currently in force, explicitly mentions the restriction on the right to freedom of expression. Accordingly, ‘ the employee may not exercise his or her right to freedom of expression by gravely infringing or jeopardising the employer ’ s reputation and justified business and organisational interests ’. Furthermore, Article 103 § 3 of the former Labour Code, as well as Article 8 § 4 of the current one, prohibits the publication of any information which the employee acquires through his or her employment and whose publication would have negative consequences for the employer or any third person. These general employment obligations may justify the restriction of employees ’ right to freedom of expression, even if it is exercised outside the workplace and working hours. ... Thus, in employment the right to freedom of expression may be subject to tighter restrictions and it does not protect material published by employees if the sole intention is to convey comments tarnishing their employer ’ s dignity and business reputation or its market and commercial valuation, or to convey injurious comments concerning the employer ’ s private or family life. The freedom does not extend to opinions that are published with the aim of destroying business or causing any other harm. Furthermore, an employee ’ s opinions are not protected by the right to freedom of expression if their aim is to criticise, question or undermine the values and value-based policies of his or her employer. This also flows from the secrecy and duty of loyalty characterising employment relations, according to which the employee contributes effectively to the achievement of the employer ’ s goals. The expression of opinions infringing the duty of loyalty cannot entail the protection of fundamental rights based on the general clauses of labour law.", "At the same time, freedom of expression is at the core of a democracy based on the rule of law. Therefore, the freedom of those who seek to exercise their right in the context of employment may only be restricted in compliance with and while respecting the values of the Fundamental Law, based on the necessity and proportionality test applicable to the restriction of fundamental rights. ... The right to freedom of expression of employees may be restricted if the restriction is absolutely necessary for a reason related to the person ’ s employment and if it is proportionate to the aim pursued. ... Therefore, when assessing the protection of opinions, it is necessary to consider (1) whether the expression in question relates to a matter of public or professional interest, (2) whether the expression is a statement of fact or a value judgment, (3) whether the expression caused damage or negatively influenced the employer ’ s reputation, (4) whether the person who exercised his or her right to freedom of expression acted in good faith, (5) the gravity of the measure applied by the employer ...", "Based on the above, in the present constitutional complaint the Constitutional Court will examine whether the conduct and expression in question are protected under Article IX (1) of the Fundamental Law, that is to say, whether in the present case there is an issue concerning fundamental rights. According to the settled practice of the Constitutional Court it is necessary to examine whether the opinion has public characteristics and is linked to a public interest, that is to say, whether it contributes to a debate on public matters. In this context the manner and circumstances of publication, the subject-matter and context of the opinion, the type of medium used, the event underlying the expression, and as further elements the content, style, topicality and aim of the expression, need to be assessed ...", "Based on the facts as established in the course of the labour proceedings, the Constitutional Court finds that the conduct in question related only to questions concerning human resources management, that is to say questions concerning a specific profession and addressing professionals. The aim of the website and of the articles published was “knowledge-sharing”, targeting a limited circle, namely the human resources experts of competing companies. ... Having regard to the above, the Constitutional Court finds that the conduct complained of in the labour proceedings, the content of the website and the articles are mainly of a professional nature and do not disclose any public link which would enable the conduct to be characterised clearly as a discussion of matters of public interest. Therefore, the conduct complained of in the labour proceedings and the published articles are not protected by the right to freedom of expression enshrined in Article IX (1) of the Fundamental Law. Given that the conduct in question is not protected by the fundamental right to freedom of expression, its restriction is not to be assessed on the basis of the labour-law standards prohibiting the infringement of the employer ’ s legitimate business interests. Accordingly, in the present case the Constitutional Court dismisses the constitutional complaint for lack of any connection between the fundamental right relied on and the standards applicable in labour proceedings.", "...”" ]

[ "RELEVANT DOMESTIC LAW", "20. Act no. XXII of 2012 on the Labour Code, in force at the material time, provided as follows:", "Article 3", "“(5) In the employment relationship, employees shall not engage in any conduct which would jeopardise the legitimate economic interests of the employer, unless so authorised by a legal regulation. ...”", "21. Article IX of the Fundamental Law provides as follows:", "“1. Everyone shall have the right to freedom of speech. ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "22. The applicant complained that the termination of his employment on account of articles published on a website had infringed his right to freedom of expression as protected by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "23. The Government argued that the constitutional complaint mechanism had provided an effective remedy against the contested dismissal decision. They submitted that the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law. Thus, the applicant ’ s right to freedom of expression had not been violated.", "24. The applicant disputed the assertion that the Constitutional Court had remedied the grievances complained of, since it had dismissed his constitutional complaint for lack of a link to a right protected by the Fundamental Law. In any event, in the applicant ’ s view, a constitutional complaint in general could not be regarded as an effective remedy, owing to the low percentage of complaints that were upheld.", "25. The Court notes that it is not disputed by the parties that the applicant availed himself of the remedy referred to by the Government. Indeed, the applicant lodged a constitutional complaint which was examined on the merits (see paragraphs 18 and 19 above). Thus, the Court is bound to conclude that the applicant complied with the obligation to exhaust domestic remedies.", "26. Inasmuch as the Government ’ s submissions may be understood to suggest that the applicant had lost his victim status, the Court notes that the Constitutional Court dismissed the applicant ’ s complaint on 26 June 2017, concluding that the applicant ’ s conduct and the articles published were not protected by Article IX (1) of the Fundamental Law enshrining the right to freedom of expression (see paragraph 21 above). Thus, the decision did not involve any acknowledgment of the violation alleged, nor did it afford the applicant adequate redress.", "27. In these circumstances, the Court considers that the applicant may still claim to be a victim of a violation of Article 10 of the Convention.", "28. The Court also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties ’ submissions", "The parties ’ submissions", "The parties ’ submissions", "(a) The applicant", "29. The applicant contended that the articles published on the website had raised issues of professional and public interest concerning changes to the personal income tax regulations affecting four million employees. This had, however, been done in a general manner and the articles had not contained confidential information from his employer. In the applicant ’ s view there was no direct connection between the published articles and his former employer ’ s activities either: the website had served as a discussion forum for general human resources knowledge, without disseminating specific information about his work at Bank O.", "Therefore, the blog entries had caused no detriment to his former employer.", "30. According to the applicant, the domestic courts had paid no heed to his arguments that he had been exercising his right to freedom of expression in the public interest, and had limited their analysis to finding that he had breached his contractual obligations.", "31. He maintained that he had acted in good faith, raising issues and opinions in a credible, truthful and genuine manner.", "32. He also pointed out that he had suffered the most serious legal consequences, since he had been dismissed from his employment.", "(b) The Government", "33. The Government disputed that the applicant ’ s dismissal on account of the knowledge-sharing website had constituted an infringement of his right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. They took the view, relying on the decision of the Constitutional Court, that the applicant ’ s activity did not enjoy the protection afforded to the right to freedom of expression, since it had not contributed to a discussion on a public matter, but had related almost exclusively to a specific profession.", "34. In any event the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law.", "The Court ’ s assessment", "(a) General principles", "35. The general principles developed in the Court ’ s case-law concerning freedom of expression have been summarised in Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, §§ 5 ‑ 77, 27 June 2017).", "36. The Court has held in a number of cases involving the freedom of expression of civil servants that Article 10 applies to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009). The Court has also held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008). It however also held that comments which lay within the applicant ’ s sphere of employment in the civil service and which had been made pursuant to his official duties did not involve any statements or views in the context of a public debate and did not relate to freedom of expression (see Harabin v. Slovakia, no. 58688/11, §§ 151-153, 20 November 2012).", "37. The Court has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law, and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts), with further references). The responsibility of the authorities would be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention. While the boundary between the State ’ s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 60 and 62, ECHR 2011). The Court has also found that this margin of appreciation is essential in an area as fluctuating as that of commercial speech. It follows that, where commercial speech is concerned, the standards of scrutiny may be less severe (see, mutatis mutandis, Demuth v. Switzerland, no. 38743/97, §§ 41-42, ECHR 2002 ‑ IX, and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165); and the margin of appreciation afforded to the national authorities is broad (see Ashby Donald and Others v. France, no. 36769/08, § 39, 10 January 2013).", "38. As the Court has previously observed, in order to be fruitful, labour relations must be based on mutual trust. Even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer ’ s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76).", "(b) Application of the above principles in the present case", "39. In the present case the measure complained of by the applicant, namely his dismissal, was not taken by a State authority but by a private bank and was upheld by the domestic courts (see paragraphs 12 and 17 above). In those circumstances, the Court finds that it is appropriate to examine the application in terms of the positive obligations of the respondent State under Article 10 of the Convention. The Court will therefore ascertain whether, in the present case, the Hungarian judicial authorities, in dismissing the applicant ’ s claims, adequately secured his right to freedom of expression as guaranteed by Article 10 in the context of labour relations and balanced it against the employer ’ s right to protection of its commercial interests.", "40. In the absence of any wrongdoing which the applicant might have sought to uncover, the Court does not find it necessary to enquire into the kind of issues which have been central to its case-law on whistle-blowing (compare Guja, cited above, §§ 73-78), but considers the following elements to be relevant when examining the permissible scope of the restriction of free speech in the employment relationship in the present case: the nature of the speech in question, the motives of the author, the damage, if any, caused by the speech to the employer, and the severity of the sanction imposed.", "(i) The nature of the speech", "41. In rejecting the applicant ’ s argument that his conduct had amounted to the exercise of his right to freedom of expression, the Constitutional Court attributed importance to the nature of the speech on the impugned website. It found that reporting on matters which an employee had learned in general in the course of his or her employment was protected by the Fundamental Law to the extent that those matters were of public interest. In the present case, however, according to the Constitutional Court, the applicant ’ s speech had concerned information of a professional nature acquired by virtue of his employment at Bank O. and had addressed issues relevant only to a specific profession and not to the public as whole. Therefore, the applicant ’ s conduct was not protected by the fundamental right of freedom of expression (see paragraph 19 above).", "42. The Court observes the domestic courts noted that the applicant had contributed as a private individual to a website on human resources policies providing information and opinion on recent developments in the field. Not excluding that the published articles might contribute, as alleged by the applicant (see paragraph 29 above), to the ongoing debate on tax issues, those courts found that the website conveyed information of a commercial nature, inviting discussion on the business practices of the audience; and, moreover, that the contested articles were addressed to a limited circle of professionals and did not directly concern the public as a whole.", "43. However, as the Court has previously found, such information cannot be excluded from the scope of Article 10 § 1, which does not apply solely to certain types of information or ideas or forms of expression (see markt intern Verlag GmbH and Klaus Beermann, cited above, § 26). In other words, workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter. The Court cannot therefore agree with the finding of the Constitutional Court that comments made by an employee do not fall within the scope of protection of the right to freedom of expression on the grounds that they are of a professional nature and do not disclose any “public link” which would enable to clearly characterise them as part of a discussion on matters of public interest (see paragraph 19 above).", "(ii) The motives of the author", "44. When examining the applicant ’ s motives, the Court is mindful of the fact that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina, cited above, § 95). In the present case, however, the Courts notes that the domestic courts did not find that the applicant had acted in pursuit of purely private interests or aired a personal grievance. There is no reason to question the applicant ’ s submission (see paragraph 29 above) to the effect that the issues raised on the website pertained to a profession and were published with the intention of sharing knowledge with and among the audience.", "(iii) The damage caused by the speech to the employer", "45. As regards the damage, if any, suffered by Bank O., it is certainly true that without some degree of control over its employees ’ conduct, it would have little prospect of providing services effectively or pursuing its business strategies. This consideration is even more relevant in a situation where the material published concerned the subject-matter of the applicant ’ s employment, and the speech arguably owed its existence to the author ’ s professional responsibilities and professional knowledge.", "46. The case before the domestic courts involved a factual dispute regarding the question whether the articles published conveyed information and opinions directly reflecting policies within Bank O. or more general information on human resources management. The Court observes the conclusion drawn by the Kúria in this regard, which held that the information shared by the applicant was closely related to his employment tasks (see paragraph 17 above).", "47. The standard applied by the domestic courts in assessing whether the dissemination of such information had been detrimental to Bank O. and could justify the applicant ’ s dismissal was that of potential damage to legitimate business interests and the possibility of divulging business secrets. Thus, for the Kúria, the mere fact that the applicant had featured as an expert on the website and had authored a contribution on human resources management reflecting knowledge acquired through his work was sufficient to conclude that he had acted to his employer ’ s detriment.", "48. The Court accepts that, under Hungarian law, employers are entitled to a degree of deference in deciding which conduct could lead to the disruption of working relations even without such disruption being manifest. However, in the present case neither the applicant ’ s employer nor the Kúria made any attempt to demonstrate in what way the speech in question could have adversely affected the business interests of Bank O.", "(iv) The severity of the sanction imposed", "49. The Court also notes that a rather severe sanction was imposed on the applicant, namely the termination of his employment without any assessment of the availability of a less severe measure.", "(v) Conclusion", "50. In sum, while it was for the domestic authorities to carry out a proper assessment of proportionality, the Court reiterates that the enjoyment of the right to freedom of expression should be secured even in the relations between employer and employee (see the case-law cited in paragraph 37 above). In the present case, the Court cannot discern any meaningful balancing of the interests at issue by the domestic courts: as noted above, the Constitutional Court found that the applicant ’ s fundamental right was not engaged (see paragraph 19 above) and the Kúria did not attribute any relevance to free speech in the present case. The substantive outcome of the labour dispute was dictated purely by contractual considerations between the applicant and Bank O. (see paragraph 17 above) and voided the applicant ’ s reliance on freedom of expression of any effect.", "51. In the light of the above considerations, the Court finds that in the present case the domestic authorities have failed to demonstrate convincingly that the rejection of the applicant ’ s challenge against his dismissal was based on a fair balance between the applicant ’ s right to freedom of expression, on the one hand, and his employer ’ s right to protect its legitimate business interests, on the other hand. They therefore did not discharge their positive obligations under Article 10 of the Convention.", "52. There has therefore been a violation of this provision.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "53. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "54. The applicant claimed 29,478 euros (EUR) in respect of pecuniary damage. This sum comprises the compensation for lost income which would have been awarded to him had he been successful in the domestic proceedings. He also claimed EUR 10,000 in respect of non-pecuniary damage.", "55. The Government contested these claims.", "56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As to non-pecuniary damage, the Court finds it appropriate to award the full sum claimed, that is to say, EUR 10,000, plus any tax that may be chargeable on that amount.", "Costs and expenses", "57. The applicant also claimed EUR 1,468 for the costs and expenses incurred before the domestic courts. This amount corresponds to the court fees at three levels of jurisdiction and the legal expenses paid to the respondent. He also claimed EUR 3,421 for cost and expenses incurred before the Court, comprising EUR 3,000 for his lawyer ’ s fees, equal to thirty hours of legal work at an hourly rate of EUR 100, EUR 375 for translation costs, EUR 24 for postal costs and EUR 22 for copies of judicial documents.", "58. The Government contested these claims.", "59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the total sum of EUR 4,800 covering costs under all heads.", "Default interest", "60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1974 and lives in Budapest.", "7. From 2006 the applicant worked as a human resources management expert at Bank O. His tasks included the analysis and calculation of salaries and staffing management. At the material time the applicant ’ s employer initiated a reform of its remuneration policy, in which the applicant was also involved.", "8. According to the code of ethics of the bank, the applicant was under an obligation not to publish formally or informally any information relating to the functioning and activities of his employer.", "9. In January 2011 the applicant, together with Ms A.N., started a knowledge-sharing website for human resources management-related publications and events. The website also contained a presentation of the applicant with his photograph, describing him as an expert in human resources management and indicating that he worked in the human resources (HR) department of a large domestic bank, without mentioning his employer.", "10. In January 2011 two articles were published on the website. The article “ New year, new strategy – Really new? Really a strategy?” was written by Ms A.N. and contained the following passage:", "“I was called today in connection with a conference and was asked some very exciting and inspiring questions. How does one prepare a HR strategy? What is the role of HR strategy? Do you have to employ HR professionals to create a HR strategy? Do you know how to link business objectives to HR strategy? We could say that this is a boring issue and these are boring questions, particularly at the beginning of the year, when every portal overwhelms us with articles like homework on this topic, in a partly false belief that creating such a strategy is connected to the beginning of the calendar year in every company. The subject is painfully topical, at the same time. This is only my opinion, not the result of a representative survey or international research carried out by British scientists. Simply, I think that some HR professionals should be taught as regards strategy that the connecting of business objectives and HR strategy is not clear in all organisations. (The reasons are various, but discussing them would use up my ‘ character limit ’ by itself, so I will not cover this issue.) We read often about problems regarding ‘ how HR could be a strategic partner ’. This approach is always surprising to me. It is rather like a ‘ learn Japanese in two weeks ’ course. Both learning Japanese and building strategic partnerships are the result of long-term processes. A responsible professional should not give the impression that one article or one blog entry, or concentrating for five minutes a day, is enough. The process itself cannot be done away with. A detailed knowledge of the organisational structure, the education system and recruiting policy is not enough. We have to be able to break away from the interests of our professional field if the interests of the organisation so require. We have to know the business, the market, our competitors, our service and our products. If someone complains that ‘ he is not taken seriously by the management ’, I always think about learning Japanese. None of this should be an aim in itself, but the result of hard professional work .. (I would point out that unfortunately we have met people whose cousins worked in a place where even this was unable to achieve the desired outcome.)”", "11. The second article “ Sweet 16%” was written by the applicant and contained the following passage:", "“How sweet is that big spoonful of jam? – Motivation in the light of tax changes", "A topic which concerns everybody today, and which led us to take the fresh fruit jar off the shelf too: as of 2011, according to the Personal Income Tax Act, all income payable as salary is subject to the 16% tax rate. The numbers indicate that in reality the only people who will benefit from this are those whose monthly earnings exceed HUF 300,000, excluding family allowances. This amount exceeds the current average income level by far. We can see in the enclosed table how net payments will change from 2011. The majority of companies plan to modify their remuneration policies and the level of wage increases, the latter being expected to fall in those jobs where tax change results in positive net income. The other thing that caused my thoughts to race is that tax is payable after rewards and bonuses, just as it is payable after salary. This may also mean that bonuses will gain in importance. Certainly, I have to say from a professional point of view that rewarding achievements by means other than fixed wages results in achievements and their fluctuation becoming more traceable. On the other hand, this trend runs counter to the professional efforts of recent years aimed at restricting the proportion of bonus payments and fixing remuneration systems in a more responsible manner.", "Further unanswered questions leave a bitter taste in our mouth after the first sweet mouthful. Following the changes, how will all this follow inflation as regards real net salaries? How committed and motivated will employees remain in the light of the changes? Will it matter to employees whether changes are decided at State or company level? What impact will different rates of salary increase and wage development have? My opinion may be surprising in certain respects and I have some further exciting comments to make as well, which I would like to share with you in the course of our discussions. So I look forward to your opinions and comments.”", "12. The applicant ’ s employment was terminated on 11 Februar 2011 for breaching his employer ’ s confidentiality standards. The bank argued that the applicant ’ s conduct in providing educational services in the field of human resources management had infringed its economic interests. Moreover, given the nature of his position, the applicant was in possession of information whose publication would have interfered with the bank ’ s business interests.", "13. The applicant instituted proceedings before the Budapest Labour Court challenging his dismissal.", "14. On 26 June 2012 the Budapest Labour Court dismissed his action, finding that the website and the content of the articles constituted a breach of the duty of mutual trust. It pointed out that the applicant operated the website and that the question whether he was the author of the impugned articles was irrelevant for the court ’ s assessment. It also found it established that the applicant ’ s conduct had jeopardised Bank O. ’ s business interests, in breach of Article 3 § 5 of the Labour Code (see paragraph 20 below), irrespective of whether actual damage had occurred. The court found that the applicant had revealed information relating to his employment, since the knowledge shared on the website had necessarily been acquired during his employment at Bank O.", "15. The applicant appealed, arguing that he could not be held liable for the publication of articles written by others and that he did not operate the website. Furthermore, he had not sought to reveal the business secrets of his employer but to engage in professional discussions.", "16. On 26 March 2013 the Budapest High Court upheld the applicant ’ s appeal. The High Court considered that it was irrelevant who had written the impugned articles, since the applicant featured as an expert on the website and was thus necessarily associated with the articles. Nonetheless, the articles had discussed human resources policies in general terms that could not be linked to Bank O. The High Court also found that the knowledge-sharing element of the website did not mean that the applicant had intended to reveal information acquired through his work. It concluded that the applicant ’ s conduct had not jeopardised his employer ’ s business interests and that his dismissal for breach of trust had therefore not been lawful.", "17. On 3 September 2014 the Kúria upheld a request for review made by the bank, endorsed the findings of the first-instance court and observed that the applicant ’ s conduct could endanger his employer ’ s business interest (see paragraph 14 above). It concluded that the similarities between the website and the applicant ’ s tasks at his workplace demonstrated that he had provided information about current policies at his workplace and that he had intended to share knowledge acquired there about issues relevant to his tasks, in breach of his employer ’ s code of ethics.", "18. The applicant lodged a constitutional complaint, maintaining that his activities concerned the exercise of his right to freedom of expression, which had not been taken into consideration by the courts.", "19. The decision of the Constitutional Court, issued on 26 June 2017, contained the following passages:", "“... Article 8 § 3 of the Labour Code, as currently in force, explicitly mentions the restriction on the right to freedom of expression. Accordingly, ‘ the employee may not exercise his or her right to freedom of expression by gravely infringing or jeopardising the employer ’ s reputation and justified business and organisational interests ’. Furthermore, Article 103 § 3 of the former Labour Code, as well as Article 8 § 4 of the current one, prohibits the publication of any information which the employee acquires through his or her employment and whose publication would have negative consequences for the employer or any third person. These general employment obligations may justify the restriction of employees ’ right to freedom of expression, even if it is exercised outside the workplace and working hours. ... Thus, in employment the right to freedom of expression may be subject to tighter restrictions and it does not protect material published by employees if the sole intention is to convey comments tarnishing their employer ’ s dignity and business reputation or its market and commercial valuation, or to convey injurious comments concerning the employer ’ s private or family life. The freedom does not extend to opinions that are published with the aim of destroying business or causing any other harm. Furthermore, an employee ’ s opinions are not protected by the right to freedom of expression if their aim is to criticise, question or undermine the values and value-based policies of his or her employer. This also flows from the secrecy and duty of loyalty characterising employment relations, according to which the employee contributes effectively to the achievement of the employer ’ s goals. The expression of opinions infringing the duty of loyalty cannot entail the protection of fundamental rights based on the general clauses of labour law.", "At the same time, freedom of expression is at the core of a democracy based on the rule of law. Therefore, the freedom of those who seek to exercise their right in the context of employment may only be restricted in compliance with and while respecting the values of the Fundamental Law, based on the necessity and proportionality test applicable to the restriction of fundamental rights. ... The right to freedom of expression of employees may be restricted if the restriction is absolutely necessary for a reason related to the person ’ s employment and if it is proportionate to the aim pursued. ... Therefore, when assessing the protection of opinions, it is necessary to consider (1) whether the expression in question relates to a matter of public or professional interest, (2) whether the expression is a statement of fact or a value judgment, (3) whether the expression caused damage or negatively influenced the employer ’ s reputation, (4) whether the person who exercised his or her right to freedom of expression acted in good faith, (5) the gravity of the measure applied by the employer ...", "Based on the above, in the present constitutional complaint the Constitutional Court will examine whether the conduct and expression in question are protected under Article IX (1) of the Fundamental Law, that is to say, whether in the present case there is an issue concerning fundamental rights. According to the settled practice of the Constitutional Court it is necessary to examine whether the opinion has public characteristics and is linked to a public interest, that is to say, whether it contributes to a debate on public matters. In this context the manner and circumstances of publication, the subject-matter and context of the opinion, the type of medium used, the event underlying the expression, and as further elements the content, style, topicality and aim of the expression, need to be assessed ...", "Based on the facts as established in the course of the labour proceedings, the Constitutional Court finds that the conduct in question related only to questions concerning human resources management, that is to say questions concerning a specific profession and addressing professionals. The aim of the website and of the articles published was “knowledge-sharing”, targeting a limited circle, namely the human resources experts of competing companies. ... Having regard to the above, the Constitutional Court finds that the conduct complained of in the labour proceedings, the content of the website and the articles are mainly of a professional nature and do not disclose any public link which would enable the conduct to be characterised clearly as a discussion of matters of public interest. Therefore, the conduct complained of in the labour proceedings and the published articles are not protected by the right to freedom of expression enshrined in Article IX (1) of the Fundamental Law. Given that the conduct in question is not protected by the fundamental right to freedom of expression, its restriction is not to be assessed on the basis of the labour-law standards prohibiting the infringement of the employer ’ s legitimate business interests. Accordingly, in the present case the Constitutional Court dismisses the constitutional complaint for lack of any connection between the fundamental right relied on and the standards applicable in labour proceedings.", "...”" ]

[ "RELEVANT DOMESTIC LAW", "20. Act no. XXII of 2012 on the Labour Code, in force at the material time, provided as follows:", "Article 3", "“(5) In the employment relationship, employees shall not engage in any conduct which would jeopardise the legitimate economic interests of the employer, unless so authorised by a legal regulation. ...”", "21. Article IX of the Fundamental Law provides as follows:", "“1. Everyone shall have the right to freedom of speech. ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "22. The applicant complained that the termination of his employment on account of articles published on a website had infringed his right to freedom of expression as protected by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "23. The Government argued that the constitutional complaint mechanism had provided an effective remedy against the contested dismissal decision. They submitted that the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law. Thus, the applicant ’ s right to freedom of expression had not been violated.", "24. The applicant disputed the assertion that the Constitutional Court had remedied the grievances complained of, since it had dismissed his constitutional complaint for lack of a link to a right protected by the Fundamental Law. In any event, in the applicant ’ s view, a constitutional complaint in general could not be regarded as an effective remedy, owing to the low percentage of complaints that were upheld.", "25. The Court notes that it is not disputed by the parties that the applicant availed himself of the remedy referred to by the Government. Indeed, the applicant lodged a constitutional complaint which was examined on the merits (see paragraphs 18 and 19 above). Thus, the Court is bound to conclude that the applicant complied with the obligation to exhaust domestic remedies.", "26. Inasmuch as the Government ’ s submissions may be understood to suggest that the applicant had lost his victim status, the Court notes that the Constitutional Court dismissed the applicant ’ s complaint on 26 June 2017, concluding that the applicant ’ s conduct and the articles published were not protected by Article IX (1) of the Fundamental Law enshrining the right to freedom of expression (see paragraph 21 above). Thus, the decision did not involve any acknowledgment of the violation alleged, nor did it afford the applicant adequate redress.", "27. In these circumstances, the Court considers that the applicant may still claim to be a victim of a violation of Article 10 of the Convention.", "28. The Court also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties ’ submissions", "The parties ’ submissions", "The parties ’ submissions", "(a) The applicant", "29. The applicant contended that the articles published on the website had raised issues of professional and public interest concerning changes to the personal income tax regulations affecting four million employees. This had, however, been done in a general manner and the articles had not contained confidential information from his employer. In the applicant ’ s view there was no direct connection between the published articles and his former employer ’ s activities either: the website had served as a discussion forum for general human resources knowledge, without disseminating specific information about his work at Bank O.", "Therefore, the blog entries had caused no detriment to his former employer.", "30. According to the applicant, the domestic courts had paid no heed to his arguments that he had been exercising his right to freedom of expression in the public interest, and had limited their analysis to finding that he had breached his contractual obligations.", "31. He maintained that he had acted in good faith, raising issues and opinions in a credible, truthful and genuine manner.", "32. He also pointed out that he had suffered the most serious legal consequences, since he had been dismissed from his employment.", "(b) The Government", "33. The Government disputed that the applicant ’ s dismissal on account of the knowledge-sharing website had constituted an infringement of his right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. They took the view, relying on the decision of the Constitutional Court, that the applicant ’ s activity did not enjoy the protection afforded to the right to freedom of expression, since it had not contributed to a discussion on a public matter, but had related almost exclusively to a specific profession.", "34. In any event the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law.", "The Court ’ s assessment", "(a) General principles", "35. The general principles developed in the Court ’ s case-law concerning freedom of expression have been summarised in Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, §§ 5 ‑ 77, 27 June 2017).", "36. The Court has held in a number of cases involving the freedom of expression of civil servants that Article 10 applies to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009). The Court has also held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008). It however also held that comments which lay within the applicant ’ s sphere of employment in the civil service and which had been made pursuant to his official duties did not involve any statements or views in the context of a public debate and did not relate to freedom of expression (see Harabin v. Slovakia, no. 58688/11, §§ 151-153, 20 November 2012).", "37. The Court has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law, and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts), with further references). The responsibility of the authorities would be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention. While the boundary between the State ’ s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 60 and 62, ECHR 2011). The Court has also found that this margin of appreciation is essential in an area as fluctuating as that of commercial speech. It follows that, where commercial speech is concerned, the standards of scrutiny may be less severe (see, mutatis mutandis, Demuth v. Switzerland, no. 38743/97, §§ 41-42, ECHR 2002 ‑ IX, and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165); and the margin of appreciation afforded to the national authorities is broad (see Ashby Donald and Others v. France, no. 36769/08, § 39, 10 January 2013).", "38. As the Court has previously observed, in order to be fruitful, labour relations must be based on mutual trust. Even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer ’ s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76).", "(b) Application of the above principles in the present case", "39. In the present case the measure complained of by the applicant, namely his dismissal, was not taken by a State authority but by a private bank and was upheld by the domestic courts (see paragraphs 12 and 17 above). In those circumstances, the Court finds that it is appropriate to examine the application in terms of the positive obligations of the respondent State under Article 10 of the Convention. The Court will therefore ascertain whether, in the present case, the Hungarian judicial authorities, in dismissing the applicant ’ s claims, adequately secured his right to freedom of expression as guaranteed by Article 10 in the context of labour relations and balanced it against the employer ’ s right to protection of its commercial interests.", "40. In the absence of any wrongdoing which the applicant might have sought to uncover, the Court does not find it necessary to enquire into the kind of issues which have been central to its case-law on whistle-blowing (compare Guja, cited above, §§ 73-78), but considers the following elements to be relevant when examining the permissible scope of the restriction of free speech in the employment relationship in the present case: the nature of the speech in question, the motives of the author, the damage, if any, caused by the speech to the employer, and the severity of the sanction imposed.", "(i) The nature of the speech", "41. In rejecting the applicant ’ s argument that his conduct had amounted to the exercise of his right to freedom of expression, the Constitutional Court attributed importance to the nature of the speech on the impugned website. It found that reporting on matters which an employee had learned in general in the course of his or her employment was protected by the Fundamental Law to the extent that those matters were of public interest. In the present case, however, according to the Constitutional Court, the applicant ’ s speech had concerned information of a professional nature acquired by virtue of his employment at Bank O. and had addressed issues relevant only to a specific profession and not to the public as whole. Therefore, the applicant ’ s conduct was not protected by the fundamental right of freedom of expression (see paragraph 19 above).", "42. The Court observes the domestic courts noted that the applicant had contributed as a private individual to a website on human resources policies providing information and opinion on recent developments in the field. Not excluding that the published articles might contribute, as alleged by the applicant (see paragraph 29 above), to the ongoing debate on tax issues, those courts found that the website conveyed information of a commercial nature, inviting discussion on the business practices of the audience; and, moreover, that the contested articles were addressed to a limited circle of professionals and did not directly concern the public as a whole.", "43. However, as the Court has previously found, such information cannot be excluded from the scope of Article 10 § 1, which does not apply solely to certain types of information or ideas or forms of expression (see markt intern Verlag GmbH and Klaus Beermann, cited above, § 26). In other words, workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter. The Court cannot therefore agree with the finding of the Constitutional Court that comments made by an employee do not fall within the scope of protection of the right to freedom of expression on the grounds that they are of a professional nature and do not disclose any “public link” which would enable to clearly characterise them as part of a discussion on matters of public interest (see paragraph 19 above).", "(ii) The motives of the author", "44. When examining the applicant ’ s motives, the Court is mindful of the fact that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina, cited above, § 95). In the present case, however, the Courts notes that the domestic courts did not find that the applicant had acted in pursuit of purely private interests or aired a personal grievance. There is no reason to question the applicant ’ s submission (see paragraph 29 above) to the effect that the issues raised on the website pertained to a profession and were published with the intention of sharing knowledge with and among the audience.", "(iii) The damage caused by the speech to the employer", "45. As regards the damage, if any, suffered by Bank O., it is certainly true that without some degree of control over its employees ’ conduct, it would have little prospect of providing services effectively or pursuing its business strategies. This consideration is even more relevant in a situation where the material published concerned the subject-matter of the applicant ’ s employment, and the speech arguably owed its existence to the author ’ s professional responsibilities and professional knowledge.", "46. The case before the domestic courts involved a factual dispute regarding the question whether the articles published conveyed information and opinions directly reflecting policies within Bank O. or more general information on human resources management. The Court observes the conclusion drawn by the Kúria in this regard, which held that the information shared by the applicant was closely related to his employment tasks (see paragraph 17 above).", "47. The standard applied by the domestic courts in assessing whether the dissemination of such information had been detrimental to Bank O. and could justify the applicant ’ s dismissal was that of potential damage to legitimate business interests and the possibility of divulging business secrets. Thus, for the Kúria, the mere fact that the applicant had featured as an expert on the website and had authored a contribution on human resources management reflecting knowledge acquired through his work was sufficient to conclude that he had acted to his employer ’ s detriment.", "48. The Court accepts that, under Hungarian law, employers are entitled to a degree of deference in deciding which conduct could lead to the disruption of working relations even without such disruption being manifest. However, in the present case neither the applicant ’ s employer nor the Kúria made any attempt to demonstrate in what way the speech in question could have adversely affected the business interests of Bank O.", "(iv) The severity of the sanction imposed", "49. The Court also notes that a rather severe sanction was imposed on the applicant, namely the termination of his employment without any assessment of the availability of a less severe measure.", "(v) Conclusion", "50. In sum, while it was for the domestic authorities to carry out a proper assessment of proportionality, the Court reiterates that the enjoyment of the right to freedom of expression should be secured even in the relations between employer and employee (see the case-law cited in paragraph 37 above). In the present case, the Court cannot discern any meaningful balancing of the interests at issue by the domestic courts: as noted above, the Constitutional Court found that the applicant ’ s fundamental right was not engaged (see paragraph 19 above) and the Kúria did not attribute any relevance to free speech in the present case. The substantive outcome of the labour dispute was dictated purely by contractual considerations between the applicant and Bank O. (see paragraph 17 above) and voided the applicant ’ s reliance on freedom of expression of any effect.", "51. In the light of the above considerations, the Court finds that in the present case the domestic authorities have failed to demonstrate convincingly that the rejection of the applicant ’ s challenge against his dismissal was based on a fair balance between the applicant ’ s right to freedom of expression, on the one hand, and his employer ’ s right to protect its legitimate business interests, on the other hand. They therefore did not discharge their positive obligations under Article 10 of the Convention.", "52. There has therefore been a violation of this provision.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "53. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "54. The applicant claimed 29,478 euros (EUR) in respect of pecuniary damage. This sum comprises the compensation for lost income which would have been awarded to him had he been successful in the domestic proceedings. He also claimed EUR 10,000 in respect of non-pecuniary damage.", "55. The Government contested these claims.", "56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As to non-pecuniary damage, the Court finds it appropriate to award the full sum claimed, that is to say, EUR 10,000, plus any tax that may be chargeable on that amount.", "Costs and expenses", "57. The applicant also claimed EUR 1,468 for the costs and expenses incurred before the domestic courts. This amount corresponds to the court fees at three levels of jurisdiction and the legal expenses paid to the respondent. He also claimed EUR 3,421 for cost and expenses incurred before the Court, comprising EUR 3,000 for his lawyer ’ s fees, equal to thirty hours of legal work at an hourly rate of EUR 100, EUR 375 for translation costs, EUR 24 for postal costs and EUR 22 for copies of judicial documents.", "58. The Government contested these claims.", "59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the total sum of EUR 4,800 covering costs under all heads.", "Default interest", "60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1967 and lives in Kassel. He was represented by Mr B. Hopmann, a lawyer practising in Berlin.", "3. The Government were represented by Ms G. Marok-Wachter, Director, of the Office of Justice of the Principality of Liechtenstein.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The events leading to the applicant’s dismissal", "5. The applicant is a doctor specialised in general and internal medicine. From 1 June 2013 he was employed as deputy chief physician of the department for internal medicine at the Liechtenstein National Hospital ( Liechtensteinisches Landesspital ), a registered Liechtenstein public law foundation. He worked under a contract of indefinite duration which could be terminated with six months’ notice. His direct superior was Dr H., chief physician of the said department.", "6. On 9 September 2014 the applicant did some research in the electronic medical files of the hospital. He found information showing that four patients had died in the hospital following the administration of morphine. He concluded from notes made in these files that Dr H., who had treated these patients, had practised active euthanasia.", "7. On the same day the applicant met with the President of the Control Committee of the Liechtenstein Parliament (the “Parliamentary Control Committee”), Mr M., on the latter’s initiative, following several anonymous complaints about deficiencies in quality in the Liechtenstein National Hospital. On that occasion, the applicant voiced suspicions that Dr H. had practised active euthanasia.", "8. On 11 September 2014 the applicant, on Mr M.’s advice, lodged a criminal complaint against Dr H. with the Public Prosecutor’s Office which instituted proceedings against Dr H. on suspicion, inter alia, of killing on request and participation in another person’s suicide.", "9. On 18 September 2014 the police seized the paper medical files of the four patients concerned at the Liechtenstein National Hospital and questioned Dr H.", "10. On 19 September 2014 the applicant, following further research in the hospital’s electronic medical files, informed the Public Prosecutor’s Office that he suspected that Dr H. had practised active euthanasia on six additional patients. He was questioned by the police on the same day. He supported his suspicions by the fact that according to the electronic files, the death of these patients had occurred shortly after the start of the treatment with morphine, that morphine had been given even without an indication that the patients suffered from pain, that the treatment had been called “supportive therapy” or “supportive measures”, and having regard to the medication administered. He stressed that the aim of his statement was to avert damage to patients of the hospital.", "11. At the time of the events, the Liechtenstein National Hospital had a body to which irregularities could be reported anonymously via an online form, the Critical Incident Reporting System (CIRS). While initially Dr H. alone had been the person examining and acting upon such reports, this task had been entrusted to a group of three persons (not including Dr H.) since summer 2014 at the latest. It is unclear when this change in responsibilities was communicated within the hospital. The applicant did not contact this body.", "12. On 19, 22 and 24 September 2014 the vice-president of the hospital’s foundation board drew up three reports on the request of the foundation board regarding the treatment of the ten patients in question. Having examined the patients’ paper files and having questioned Dr H., he concluded that all patients had been in a palliative situation under the WHO’s standards and that there had not been any mistake regarding the morphine administered. He considered that the applicant had failed to take into account the pain or difficulty in breathing of the patients concerned, which had made necessary the treatment in question. If the applicant had read the patients’ paper files, which alone, as had been known at the time, had contained complete information regarding the patients’ condition and treatment and to which he had had access, he would have realised immediately that his suspicions of active euthanasia were clearly unfounded.", "13. On 26 September 2014 the applicant was suspended from office.", "14. On 2 October 2014 the applicant made a written statement setting out his position to the National Hospital on the latter’s request. He explained that he had done some research in the electronic files of several patients who had died in the past weeks following an indication by a doctor working in the hospital that recently there had been an unusual rise in deaths of patients in the hospital. In his view, the ten patients concerned had clearly not been treated lege artis. After thorough reflection, he had decided to inform the Public Prosecutor’s Office in order to protect the patients and the hospital and to comply with his own ethical convictions and the provisions of the Physicians’ Act ( Ärztegesetz; see paragraph 36 below). As he was convinced that there had been criminal offences, as he had not expected the matter to be investigated properly within the hospital and in view of the urgency of the situation, he had not contacted an internal body of the hospital prior to lodging a criminal complaint with the Public Prosecutor’s Office.", "15. In a report received by the National Hospital on 15 October 2014 a Swiss external medical expert in palliative medicine commissioned by the Hospital, N., having studied the medical paper files of the patients concerned and having heard Dr H., concluded that no active euthanasia had been practised on the ten patients in question. The expert considered that the patients’ palliative treatment had been necessary and justified as they had been at the end of their lives. They had died as a result of their illnesses and not as a result of their treatment. They had been given morphine in order to treat their pain and difficulty in breathing and not to end their lives. The expert noted that some of the morphine doses prescribed – especially those “without upper limit” – may not have been necessary, but such doses had never been administered in practice.", "16. On 17 October 2014 the director of the National Hospital dismissed the applicant without notice. He considered that owing to the applicant’s severe fault, the relationship of trust with him had been destroyed irretrievably. He argued that the applicant had failed to raise his allegations of active euthanasia and quality flaws with the hospital’s competent internal bodies prior to raising them externally with the President of the Parliamentary Control Committee and with the Public Prosecutor’s Office. The applicant had been obliged to inform Dr H., or at least the director of the hospital or a member of the foundation board with whom he had a normal relationship, of his allegations. Furthermore, the applicant’s allegations of euthanasia had been considered as clearly unfounded by the external expert commissioned by the hospital.", "17. The Liechtenstein newspapers and radio repeatedly reported on the suspicions of active euthanasia at the Liechtenstein National Hospital and the criminal investigations against Dr H. in this respect.", "The outcome of the criminal investigation proceedings against dr h. and against the applicant", "18. The investigating judge in the criminal proceedings against Dr H. had also commissioned an external expert practising in Austria, L. In his report dated 30 October 2014, received by the investigating judge on 11 December 2014, the expert, having regard to the medical paper files of the patients in question, came to the conclusion that Dr H. had not practised active euthanasia. The patients had been given morphine only as necessitated by their palliative situation and this treatment had not caused the patients’ death. Doubts regarding such palliative medical treatment and ethical decisions taken in that context could be excluded by a better documentation of the treatment in the future.", "19. On 15 December 2014 the criminal proceedings against Dr H. were discontinued.", "20. On 15 December 2016 criminal proceedings instituted against the applicant for having deliberately cast wrong suspicions of a criminal offence on another person by his allegations that Dr H. had practised active euthanasia were equally discontinued.", "The proceedings before the domestic courtsProceedings before the Regional Court", "Proceedings before the Regional Court", "Proceedings before the Regional Court", "21. On 28 November 2014 the applicant brought an action against the Liechtenstein National Hospital for payment of some 600,000 Swiss francs (CHF) in compensation for the loss of salary and further pecuniary and non ‑ pecuniary damage. He claimed that his dismissal without notice had been unlawful. There had been no important reason for his dismissal as lodging a criminal complaint against Dr H. had been justified in view of the concrete suspicions of active euthanasia and the gravity of the offence concerned.", "22. On 29 August 2017 the Regional Court dismissed the applicant’s action. It found that the applicant’s dismissal without notice had been justified under Article 1173a § 53 (1) and (2) of the Civil Code (see paragraph 35 below). The court considered, in essence, that there had been an important reason for the employing hospital to terminate the employment contract. As the applicant had failed to sufficiently verify his unfounded suspicions of active euthanasia in the patients’ medical paper files and to signal his suspicions within the hospital prior to informing external bodies thereof, the continuation of the employment relationship by the hospital could no longer be expected in good faith.", "Proceedings before the Court of Appeal", "23. On 10 January 2018 the Court of Appeal, allowing an appeal lodged by the applicant, quashed the Regional Court’s judgment. It ordered the defendant hospital to pay the applicant CHF 125,000 in salary arrears and remitted the remainder of the case to the Regional Court for a fresh consideration of the applicant’s compensation claims. The Court of Appeal found that the applicant’s dismissal without notice had not been justified. The disclosure of irregularities to third persons was covered by the right to freedom of expression and could justify a dismissal only if it was coupled with a serious breach of the duty of loyalty. However, there was no such serious breach in the present case.", "24. The Court of Appeal argued that the institution of proceedings against Dr H. by the Public Prosecutor’s Office confirmed that the applicant’s suspicions had not been unfounded. In view of the severity of the offence at issue, contacting external bodies such as the Parliamentary Control Committee or the Public Prosecutor’s Office, which were both under a duty of confidentiality, had not been disproportionate. The fact that the applicant had reported directly to the Public Prosecutor’s Office did not raise an issue in this respect. The court further agreed with the applicant that in the circumstances of the case, reporting the issue to Dr H. in the context of the internal mechanism to report irregularities had not been a suitable approach.", "Proceedings before the Supreme Court", "25. On 4 May 2018 the Supreme Court, allowing the defendant hospital’s appeal on points of law, quashed the Court of Appeal’s judgment. It dismissed the applicant’s claim for payment of CHF 125,000 in salary arrears in a partial judgment and remitted the remainder of the case to the Court of Appeal in a partial decision for it to dismiss the applicant’s action in that regard.", "26. The Supreme Court considered that the applicant’s dismissal without notice had been lawful. It stressed that the applicant, a senior employee, had only consulted the electronic medical files, which he had known to be incomplete, although he could have consulted the paper files at any moment. If he had done so, he would have recognised immediately that his suspicions were clearly unfounded. He had thus failed to verify his serious and unjustified allegations before disclosing them to third persons and before lodging a criminal complaint. This conduct amounted to a serious breach of trust in relation to his employer which justified his dismissal without notice.", "Proceedings before the Constitutional Court", "27. On 4 June 2018 the applicant lodged a complaint with the Constitutional Court against the partial judgment and partial decision of the Supreme Court. He argued that his dismissal had breached, in particular, his right to freedom of expression under the Constitution and Article 10 of the Convention. Reporting his suspicions of active euthanasia to external bodies had been justified whistle-blowing.", "28. On 3 September 2018 the Constitutional Court found that the applicant’s constitutional complaint was admissible as the Supreme Court had taken a final stance on the applicant’s action, but dismissed the complaint on the merits (file no. StGH 2018/74).", "29. The right to freedom of expression applied in the relationship between the applicant and the Liechtenstein National Hospital. While the hospital was a State institution, the applicant’s dismissal was not an act of public authority, but was governed by private law. The right to freedom of expression nevertheless applied indirectly in their relationship ( indirekte Drittwirkung ).", "30. The Constitutional Court accepted that the applicant regarded himself as a whistle-blower. Having regard to the criteria developed, inter alia, by the European Court of Human Rights in the case of Heinisch v. Germany (no. 28274/08, ECHR 2011 (extracts)) on freedom of expression in the context of whistle-blowing, the Constitutional Court found that the applicant’s right to freedom of expression had not been violated by his dismissal without notice. It recognised that there was a considerable public interest in medical treatment which was in accordance with the state of the art in a public hospital. Moreover, the civil courts had not found that the applicant had acted out of personal motives.", "31. The Constitutional Court noted, however, that the applicant had failed to test his suspicions regarding the practice of active euthanasia arising from the electronic medical files by verifying the paper files of the patients concerned. Had he done so, he would have realised immediately that his suspicions – which could be considered comprehensible having regard to the electronic files alone – were clearly unfounded. In the light of the gravity of the allegations and the consequences for all concerned by them in the event that these allegations became public, the applicant had been obliged to proceed to such verification, even more as he had known that the electronic files had been incomplete. The applicant had therefore acted irresponsibly. Therefore, his right to freedom of expression had not been breached.", "32. The Constitutional Court, just as the Supreme Court, could thus leave open whether the applicant, prior to raising his allegations externally, should have attempted to raise them internally, notably with the director of the hospital.", "33. The judgment was served on the applicant’s counsel on 7 November 2018." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "relevant domestic lawProvisions of the Civil Code", "Provisions of the Civil Code", "Provisions of the Civil Code", "34. Article 1173a of the Civil Code ( Allgemeines bürgerliches Gesetzbuch ) lays down rules on employment contracts. Paragraph 4 of that Article, in so far as relevant, provides:", "“(1) The employee must carry out the work entrusted to him diligently and must respect the employer’s legitimate interests loyally.”", "35. Article 1173a § 53 of the Civil Code contains rules on the termination of employment contracts without notice for important reasons. In so far as relevant, it provides:", "“(1) For important reasons, both the employer and the employee may terminate an employment relationship at any time without notice; ...", "(2) An important reason exists, in particular, where, in the circumstances, a continuation of the employment relationship cannot be expected any longer in good faith from the party terminating the relationship.”", "Provision of the Physicians’ Act", "36. The Physicians’ Act ( Ärztegesetz ) of 22 October 2003 lays down rules on physicians’ exercise of their profession. Article 20 of that Act, on notification duties, in so far as relevant, provides:", "“(1) Physicians are obliged to notify the Office of Public Health ( Amt für Gesundheit ) or directly the Public Health Service ( amtsärztlicher Dienst ) of findings made in the exercise of their profession which give rise to suspicions that a criminal offence resulted in a person’s death or serious bodily injury ...”", "relevant international law and practiceResolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers”", "Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers”", "Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers”", "37. In its Resolution 1729 (2010) on the protection of “whistle-blowers”, adopted on 29 April 2010, the Parliamentary Assembly of the Council of Europe (PACE) stressed the importance of “whistle-blowing” – concerned individuals sounding an alarm in order to stop wrongdoings that place fellow human beings at risk – notably as an opportunity to strengthen accountability in both the public and private sectors (see point 1 of the Resolution). It invited all member States to review their legislation concerning the protection of whistle-blowers, keeping in mind the following guiding principles:", "“(...)", "6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;", "6.1.2. the legislation should therefore cover both public and private sector whistle ‑ blowers ..., and", "6.1.3. it should codify relevant issues in the following areas of law:", "6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ...", "(...)", "6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).", "6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.", "6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.”", "38. The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010) adopted on the same day, recommending, inter alia, that the Committee of Ministers draw up a set of guidelines for the protection of whistle-blowers (point 2.1).", "Recommendation CM/Rec(2014)7 of the Committee of Ministers of the Council of Europe on the protection of whistleblowers", "39. On 30 April 2014, at the 1198 th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2014)7 to member States on the protection of whistleblowers. The Committee of Ministers took note, in particular, of Resolution 1729 (2010) of the Parliamentary Assembly (see paragraph 37 above). It recommended that member States have in place a normative, institutional and judicial framework to protect individuals who, in the context of their work-based relationship, report or disclose information on threats or harm to the public interest. The appendix to the Recommendation sets out a series of principles to guide member States in the protection of such “whistleblowers”.", "40. The Appendix to Recommendation CM/Rec(2014)7 provides, in particular:", "“ IV. Channels for reporting and disclosures", "(...)", "13. Clear channels should be put in place for public interest reporting and disclosures and recourse to them should be facilitated through appropriate measures.", "14. The channels for reporting and disclosures comprise:", "– reports within an organisation or enterprise (including to persons designated to receive reports in confidence);", "– reports to relevant public regulatory bodies, law enforcement agencies and supervisory bodies;", "– disclosures to the public, for example to a journalist or a member of parliament.", "The individual circumstances of each case will determine the most appropriate channel.”", "(...)", "VII. Protection against retaliation", "21. Whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer. Forms of such retaliation might include dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment.", "22. Protection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy.", "(...)", "24. Where an employer has put in place an internal reporting system, and the whistleblower has made a disclosure to the public without resorting to the system, this may be taken into consideration when deciding on the remedies or level of protection to afford to the whistleblower.”", "Further Council of Europe texts and other international instruments", "41. The Parliamentary Assembly recalled its Resolution 1729 (2010) in subsequent texts on whistle-blowing, notably in Resolution 2060 (2015) and Recommendation 2073 (2015) on improving the protection of whistle ‑ blowers, both adopted by the Parliamentary Assembly on 23 June 2015, and in Resolution 2300 (2019) and Recommendation 2162 (2019) on improving the protection of whistle-blowers all over Europe, both adopted on 1 October 2019.", "42. Further Council of Europe and other international instruments relevant in this field are referred to in Heinisch (cited above, §§ 38-40).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "43. The applicant complained that his dismissal without notice from the National Hospital on account of the fact that he had lodged a criminal complaint for active euthanasia had breached his right to freedom of expression as provided in Article 10 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (...)", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "44. The Government contested that view.", "Admissibility", "45. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsWhether there was an interference", "Whether there was an interference", "Whether there was an interference", "46. In the applicant’s submission, his dismissal without notice after he had raised suspicions externally that active euthanasia had been practised in the National Hospital constituted an interference with his right to freedom of expression under Article 10 of the Convention. The Government agreed that the dismissal had interfered with Article 10.", "47. The Court reiterates that the protection of Article 10 extends to the workplace in general (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts) with further references; Matúz v. Hungary, no. 73571/10, § 26, 21 October 2014; and Langner v. Germany, no. 14464/11, § 39, 17 September 2015). In cases concerning freedom of expression of employees in State-owned or State-controlled companies or bodies, it recalled that Article 10 applied not only to employment relationships governed by public law, but also to those under private law. In addition, in certain cases, the State had a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; Heinisch, cited above, § 44; and Matúz, cited above, § 26).", "48. The Court notes that, on account of his statements regarding active euthanasia, the applicant was dismissed as a physician by the Liechtenstein National Hospital, a public law foundation; his employment relationship was governed by private law. The dismissal was subsequently endorsed, in particular, by the Liechtenstein Constitutional Court. The Court considers that in these circumstances, the measure in question constituted an interference by a State authority with the applicant’s right to freedom of expression as guaranteed by Article 10 § 1 of the Convention (compare also Fuentes Bobo, cited above, § 38; Heinisch, cited above, § 45; and Matúz, cited above, § 27, in all of which the dismissal of an employee in a State ‑ owned or controlled company whose employment relationship was governed by private law was addressed from the standpoint of an interference with the respective employee’s rights).", "Whether the interference was justified", "49. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim.", "(a) Interference “prescribed by law”", "50. The Court observes that the applicant’s dismissal was based on Article 1173a § 53 of the Civil Code (see paragraphs 22 and 35 above), which authorises the termination of employment contracts without notice for important reasons. It was thus “prescribed by law” for the purposes of Article 10 § 2. This is indeed uncontested by the parties.", "(b) Legitimate aim", "51. The Court notes that there was no dispute between the parties, and the Court agrees, that the interference pursued the legitimate aims of protecting the reputation and rights of others. It served to protect both the business reputation and interests of the employing National Hospital, including its interest in a professional work relationship based on mutual trust, and the reputation of the hospital’s chief physician who was concerned by the applicant’s allegations of euthanasia (compare also Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II; Heinisch, cited above, § 49, and Langner, cited above, § 40).", "(c) Necessity of the interference in a democratic society", "(i) The parties’ submissions", "(α) The applicant", "52. In the applicant’s submission, his dismissal without notice had been disproportionate and thus not justified. He stressed, first, that the information given by him to the Public Prosecutor’s Office regarding suspicions of active euthanasia on seriously ill and defenceless patients had undoubtedly been of considerable public interest.", "53. The applicant further took the view that he had verified sufficiently that the information he disclosed was accurate and reliable. He contested, in particular, that it would clearly have resulted from the paper version of the medical files of the patients concerned that his suspicions had been unfounded. Both the hospital and the investigating judge considered it necessary to consult an external expert on the question of whether there had been active euthanasia and one of the experts had found that there had been an insufficient documentation of the treatment in these files. Moreover, his employer would have noticed research in the paper files.", "54. The public interest in a democratic society to be informed of potential irregularities in the treatment in a public hospital outweighed the hospital’s business interests. The allegations contained in the criminal complaint lodged by him with the Public Prosecutor’s Office had been detrimental to the National Hospital, but it had been the hospital itself which had informed the media and public thereof.", "55. Moreover, the applicant argued that there had not been any effective internal channels for making the disclosure. He had not been obliged to report his suspicions to his superior, Dr H., who was directly concerned by them, as this would have resulted in his immediate dismissal. The director of the hospital was part of the hospital’s management, together with Dr H. The hospital’s foundation board, for its part, had not been responsible for employees’ complaints of this kind. Likewise, he had not been obliged to turn to the hospital’s internal complaint mechanism CIRS as he had not been informed that at the relevant time, it was no longer Dr H. himself who was responsible for dealing with the complaints received. Therefore, the only way to ensure effective investigations in the present case had been to contact an external body, the Public Prosecutor’s Office, which had been independent of internal personal links and – just like the Parliamentary Control Committee – under a duty of confidentiality. Moreover, owing to the gravity of the suspicions, the fact that several patients had died shortly after the start of their morphine treatment and his position of deputy head of department potentially exposing him to criminal liability himself, it had been urgent to act.", "56. The applicant stressed that he had been fully convinced that, having regard to the information contained in the electronic files which he considered to contain sufficient information, that there had been active euthanasia. He had therefore disclosed the information in good faith.", "57. The applicant finally submitted that his dismissal without notice, being the harshest sanction under labour law, had also had the consequence that he had had to leave Liechtenstein with his family as he was to lose his residence permit as a result. Furthermore, he had had serious difficulties in finding new employment afterwards. This had a chilling effect on other hospital employees, discouraging them from disclosing irregularities.", "(β) The Government", "58. In the Government’s view, the interference with the applicant’s right to freedom of expression had been justified as it had been necessary to protect the reputation and the rights of the employing hospital and of the accused chief physician. The Government accepted that there was in principle an interest of the hospital’s patients in the protection of their life and limb and also, generally, a public interest in information on whether the treatment in a public hospital was in accordance with the rules of the medical profession. However, it had to be taken into account in the present case that the applicant’s allegations had been frivolous and unfounded.", "59. The Government further submitted that, as had been confirmed by the domestic courts, the applicant had failed to verify in the paper medical files of the patients concerned that the information he had disclosed on the basis of elements discovered in the electronic files, which he knew to be incomplete, was accurate and reliable. The applicant had been able to do so at any time and would then have realised that his suspicions of active euthanasia were unfounded.", "60. The public interest in having the information in question revealed did not outweigh the interest of the applicant’s employer and of the chief physician concerned in the protection of their business and personal reputation, damaged as a result of the applicant’s serious and unjustified allegations.", "61. Several effective alternative channels for making the disclosure, obtaining an internal clarification of the allegations rapidly and remedying the alleged wrongdoing, would have been available to the applicant. He could have informed the director or a member of the foundation board of the hospital. As had been demonstrated by the investigations done following the disclosure of the allegations by the applicant, there was nothing to indicate that they would not have investigated the allegations properly. Alternatively, the applicant could have complained anonymously via the Hospital’s Critical Incident Reporting System (CIRS). The filing of the criminal complaint against Dr H. had disregarded the internal official channel of reporting irregularities.", "62. The fact that the applicant had neither verified his suspicions nor contacted an internal body first also showed that he had not acted in good faith.", "63. The dismissal without notice of the applicant in these circumstances did not have a chilling effect on other employees of the hospital or in the health sector more generally. The employer’s immediate investigations following the disclosure of the information by the applicant rather encouraged these persons to contact internal bodies regarding suspicions of irregularities first.", "(ii) The Court’s assessment", "(α) Relevant principles", "64. The general principles for the assessment of whether an interference with the right to freedom of expression was “necessary in a democratic society” have been set out in numerous judgments (see, inter alia, Steel and Morris, cited above, § 87; Guja v. Moldova [GC], no. 14277/04, § 69, ECHR 2008; and Heinisch, cited above, § 62). In essence, the Court’s task is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. It has to determine whether the interference complained of was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.", "65. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja, cited above, § 72; Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009; and Langner, cited above, § 44). The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Guja, cited above, § 70; Marchenko, cited above, § 45; Heinisch, cited above, § 64; and Matúz, cited above, § 32).", "66. When assessing, in this context, the proportionality of the interference with an employee’s right to freedom of expression in relation to the legitimate aim pursued, the Court, in its case-law (see, in particular, Guja, cited above, §§ 73-78; Heinisch, cited above, §§ 64-70; Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013; and Matúz, cited above, § 34), has had regard to the following six criteria.", "67. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. There is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; and Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ V).", "68. The second factor relevant in this balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if the person concerned owes a duty of discretion and loyalty to his or her employer and there is question of attacking the reputation of private individuals (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ).", "69. Third, on the other side of the scales, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76).", "70. Fourth, the Court needs to determine whether, in the light of the duty of discretion owed by an employee towards his or her employer, the information was made public as a last resort, following disclosure to a superior or other competent body (see Matúz, cited above, § 34) unless it is clearly impracticable to disclose the information to a superior or other competent authority (see Marchenko, cited above, § 46). The Court must take into account in this context whether any other effective means of remedying the wrongdoing which the employee intended to uncover were available to him or her (see Marchenko, cited above, § 46).", "71. Fifth, the motive behind the actions of the reporting employee is another determining factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina v. Russia, no. 29492/05, § 95, 26 February 2009). It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77).", "72. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the severity of the sanction, in particular the penalty imposed on the employee and its consequences, is required (see Fuentes Bobo, cited above, § 49).", "(β) Application of these principles to the present case", "‒ Public interest in the disclosed information", "73. In determining whether, in the light of the above principles, the dismissal without notice of the applicant was “necessary in a democratic society” in the circumstances of the present case, the Court notes at the outset that the Constitutional Court, in its assessment of the applicant’s complaint, had regard to the above-mentioned criteria developed in the Court’s case-law (see paragraphs 30-32 above). In reviewing, under Article 10, the domestic court’s decision, the Court observes that the Constitutional Court recognised that there was considerable public interest in medical treatment in a public hospital which was in accordance with the state of the art. The Court considers that the information disclosed by the applicant, namely the suspicion that a chief physician currently working at the Liechtenstein National Hospital had repeatedly practised active euthanasia, concerned suspicions of the commission of serious offences, namely the killing of several vulnerable and defenceless patients, in a public hospital, as well as a risk of repetition of such offences. It agrees that this information was as such of considerable public interest.", "‒ Authenticity / veracity of the information disclosed", "74. As regards the authenticity, in the sense of veracity, of the information disclosed by the applicant, the Court cannot but note, however, that the Supreme Court and the Constitutional Court, in particular, found that the suspicions of active euthanasia which the applicant had reported to the Public Prosecutor’s Office had been clearly unfounded. The Court observes that the assessment that no active euthanasia had been practised was shared, in particular, by the two external medical experts, N. and L., who had been asked by the Liechtenstein National Hospital and the Public Prosecutor’s Office respectively to examine this question on the basis of the medical paper files (see paragraphs 15 and 18 above). While the Court does not overlook that the applicant contested that his suspicions were clearly unfounded, it cannot but note that he did not consult all patients’ paper files. Despite the fact that expert L. saw some room for improvement in the documentation in these files, both external experts concluded without any reservations that the patients in question had received necessary and justified palliative treatment. The domestic courts, in finding on the basis of these reports that the information disclosed by the applicant was clearly wrong and thus did not have a sufficient factual basis, therefore relied on an acceptable assessment of the relevant facts.", "75. The Court would stress that information disclosed by whistle ‑ blowers may also be covered by the right to freedom of expression under certain circumstances where the information in question subsequently proved wrong or could not be proven correct. It recalls, in particular, that it cannot reasonably be expected of a person having lodged a criminal complaint in good faith to anticipate whether the investigations will lead to an indictment or will be discontinued (see Heinisch, cited above, § 80). However, in these circumstances the person concerned must have complied with the duty to carefully verify, to the extent permitted by the circumstances, that the information is accurate and reliable (compare Guja, cited above, § 75, and Heinisch, cited above, § 67).", "76. The Court observes that the guiding principles developed by the PACE in its Resolution 1729 (2010) on the protection of “whistle-blowers” reflect the same approach, stating that “[a]ny whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case ...” (see point 6.2.4., cited in paragraph 37 above, and compare, mutatis mutandis, Heinisch, ibid., and Bucur and Toma, cited above, § 107). Likewise, the guiding principles in the Appendix to Recommendation CM/Rec(2014)7 on the protection of whistle-blowers provide that “[p]rotection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy” (principle no. 22, cited in paragraph 40 above).", "77. In the present case, the applicant, as stressed also by the Supreme Court and the Constitutional Court (see paragraphs 26 and 31 above), based his allegations of active euthanasia only on the information available in the electronic medical files which, as he had known as a doctor practising in the National Hospital, did not contain complete information on the patients’ state of health. Comprehensive information in this respect was only available in the paper medical files which the applicant, however, did not consult. As the Supreme Court and the Constitutional Court determined, had he done so, he would have recognised immediately that his suspicions were clearly unfounded and he had therefore acted irresponsibly (see paragraphs 26 and 31 above). By reason of the duties and responsibilities inherent in the exercise of the freedom of expression (see paragraph 68 above), the safeguard afforded by Article 10 to whistle-blowers is subject to the proviso that they acted in order to disclose information that is accurate and reliable and in accordance with professional ethics (compare, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 87 and 109, 27 June 2017). This applies, in particular, if the person concerned, like the applicant in the present case as deputy chief physician and thus a high-ranking and highly qualified employee, owes a duty of loyalty and discretion to his or her employer.", "78. The Court does not lose sight of the fact that the applicant, in the light of the interpretation he had made of the information in the electronic files, namely that active euthanasia had repeatedly been practised in the hospital and might continue being practised, must have concluded that it was very urgent to act in order to stop that practice. However, given that, as had been found by the domestic courts (see, in particular, paragraph 26 above), the applicant as a deputy chief physician, could have consulted the paper files at any moment, the Court considers that this verification would not have been very time-consuming. Having regard to the gravity of an allegation of active euthanasia the Court therefore agrees with the domestic courts’ finding that the applicant was obliged to, but failed to proceed to such a verification (compare also, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others, cited above, § 115). He did not, therefore, carefully verify, to the extent permitted by the circumstances, that the information he disclosed was accurate and reliable.", "‒ Detriment to the employer", "79. As for the damage suffered notably by the employer as a result of the disclosure in question, the Court considers that the allegation of active euthanasia having been practised at a State-run hospital was certainly prejudicial to the employing hospital’s business reputation and interests and to the public confidence in the provision of medical treatment in accordance with the state of the art in the only public hospital in Liechtenstein. It was further prejudicial to the personal and professional reputation of another staff member of that hospital, namely the chief physician concerned by the allegations. The Court observes in this context that the applicant initially did not voice his allegations in public, but disclosed them by lodging a criminal complaint, in particular, to the Public Prosecutor’s Office, which was under a duty of confidentiality (see paragraph 24 above). However, following the ensuing investigations including the seizure of the medical files at the National Hospital, the applicant’s allegations became known to a larger public and were – quite predictably, given the gravity of the allegations – repeatedly discussed in the Liechtenstein media which risked increasing their prejudicial effect.", "80. As shown above, there was as such a public interest in the revelation of information on suspicions of repeatedly practised active euthanasia in a public hospital. However, in the present case, in which the well ‑ foundedness of that suspicion had not been sufficiently verified prior to its disclosure, the public interest in receiving such information cannot outweigh the employer’s and chief physician’s interest in the protection of their reputation.", "‒ Existence of alternative channels for making the disclosure", "81. As for the question whether the information in question was revealed to an external body as a last resort, the Court observes that both the Supreme Court and the Constitutional Court left open the question whether the applicant, prior to raising his suspicions externally, should have attempted to raise them internally (see paragraph 32 above). The Court, having regard to the circumstances of the case, the gravity of the acts at issue and its case-law (compare, in particular, Bucur and Toma, cited above, § 97), finds that the applicant could not be expected to first raise his suspicions with his superior Dr H., who was directly concerned by them. As for the internal reporting channel, the CIRS, the Court notes that it has not been shown that it had been communicated within the hospital that anonymous reports of irregularities via that system were no longer handled by Dr H. alone (see paragraph 11 above). Therefore, the applicant could legitimately proceed on the assumption that redress could not be obtained in this way either.", "82. It remains to be determined whether the applicant should have raised his suspicions either with a member of the hospital’s foundation board or with the hospital’s director prior to lodging a criminal complaint. The Court notes that, in view of the normal professional relationship between the applicant and these bodies and the availability of medical expertise within the hospital, these instances appear to be effective alternative channels for disclosure, with the potential to remedy any irregularities rapidly. However, the Court does not overlook either that the offences which the applicant suspected his direct superior of were serious and that there was a possibility that he might himself be held liable in case of a failure to report such offences. It further takes note of the fact that the guiding principles in the Appendix to the Committee of Ministers’ Recommendation CM/Rec(2014)7 on the protection of whistle-blowers do not establish an order of priority between the different channels of reporting and disclosure, stating that the individual circumstances of each case will determine the most appropriate channel (see principle no. 14, at paragraph 40 above). The Court considers, however, that in the circumstances of the case it can leave open the question whether the applicant was obliged to raise his suspicions with the said internal instances of the hospital.", "‒ Applicant’s motives for the disclosure", "83. As to the applicant’s motive for reporting his suspicions of active euthanasia, the Court observes that the domestic courts did not find that the applicant had acted out of personal motives (see paragraph 30 above). Having regard to the material before it, the Court does not have reasons to doubt that the applicant, in making the disclosure, acted in the belief that the information was true and that it was in the public interest to disclose it.", "‒ Severity of the sanction", "84. Finally, as regards the severity of the sanction imposed on the applicant, the Court observes that the applicant’s dismissal without notice constituted the heaviest sanction possible under labour law (compare also Guja, cited above, § 95; Heinisch, cited above, § 91; and Langner, cited above, § 53). This sanction not only had negative repercussions on his professional career, it also led to the applicant and his family having to leave Liechtenstein as he was to lose his residence permit as a foreign national without employment. Having regard also to the media coverage regarding the suspicions of euthanasia in Liechtenstein, the sanction therefore must have had a certain chilling effect on other employees in the hospital and the health sector in general – at least as regards the direct disclosure to external bodies of suspicions of irregularities.", "(iii) Conclusion", "85. Having regard to the foregoing considerations, the Court concludes that the applicant did not act with improper motives. However, he raised suspicions of a serious offence with an external body without having carefully verified that the information he disclosed, which was as such of public interest, was accurate and reliable. The Court further observes that the domestic courts, having regard to the criteria developed in the Court’s case-law, adduced relevant and sufficient reasons for their finding that, in these circumstances, the applicant’s dismissal without notice, having regard to the prejudicial effect of the disclosure on the employer’s and the other staff member’s reputation, was justified. They struck a fair balance between the need to protect the employer’s and the staff member’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other.", "86. The Court therefore concludes that the interference with the applicant’s right to freedom of expression, in particular his right to impart information, was proportionate to the legitimate aim pursued and thus necessary in a democratic society.", "87. There has accordingly been no violation of Article 10 of the Convention." ]

[ "2. The applicant was born in 1967 and lives in Kassel. He was represented by Mr B. Hopmann, a lawyer practising in Berlin.", "3. The Government were represented by Ms G. Marok-Wachter, Director, of the Office of Justice of the Principality of Liechtenstein.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The events leading to the applicant’s dismissal", "5. The applicant is a doctor specialised in general and internal medicine. From 1 June 2013 he was employed as deputy chief physician of the department for internal medicine at the Liechtenstein National Hospital ( Liechtensteinisches Landesspital ), a registered Liechtenstein public law foundation. He worked under a contract of indefinite duration which could be terminated with six months’ notice. His direct superior was Dr H., chief physician of the said department.", "6. On 9 September 2014 the applicant did some research in the electronic medical files of the hospital. He found information showing that four patients had died in the hospital following the administration of morphine. He concluded from notes made in these files that Dr H., who had treated these patients, had practised active euthanasia.", "7. On the same day the applicant met with the President of the Control Committee of the Liechtenstein Parliament (the “Parliamentary Control Committee”), Mr M., on the latter’s initiative, following several anonymous complaints about deficiencies in quality in the Liechtenstein National Hospital. On that occasion, the applicant voiced suspicions that Dr H. had practised active euthanasia.", "8. On 11 September 2014 the applicant, on Mr M.’s advice, lodged a criminal complaint against Dr H. with the Public Prosecutor’s Office which instituted proceedings against Dr H. on suspicion, inter alia, of killing on request and participation in another person’s suicide.", "9. On 18 September 2014 the police seized the paper medical files of the four patients concerned at the Liechtenstein National Hospital and questioned Dr H.", "10. On 19 September 2014 the applicant, following further research in the hospital’s electronic medical files, informed the Public Prosecutor’s Office that he suspected that Dr H. had practised active euthanasia on six additional patients. He was questioned by the police on the same day. He supported his suspicions by the fact that according to the electronic files, the death of these patients had occurred shortly after the start of the treatment with morphine, that morphine had been given even without an indication that the patients suffered from pain, that the treatment had been called “supportive therapy” or “supportive measures”, and having regard to the medication administered. He stressed that the aim of his statement was to avert damage to patients of the hospital.", "11. At the time of the events, the Liechtenstein National Hospital had a body to which irregularities could be reported anonymously via an online form, the Critical Incident Reporting System (CIRS). While initially Dr H. alone had been the person examining and acting upon such reports, this task had been entrusted to a group of three persons (not including Dr H.) since summer 2014 at the latest. It is unclear when this change in responsibilities was communicated within the hospital. The applicant did not contact this body.", "12. On 19, 22 and 24 September 2014 the vice-president of the hospital’s foundation board drew up three reports on the request of the foundation board regarding the treatment of the ten patients in question. Having examined the patients’ paper files and having questioned Dr H., he concluded that all patients had been in a palliative situation under the WHO’s standards and that there had not been any mistake regarding the morphine administered. He considered that the applicant had failed to take into account the pain or difficulty in breathing of the patients concerned, which had made necessary the treatment in question. If the applicant had read the patients’ paper files, which alone, as had been known at the time, had contained complete information regarding the patients’ condition and treatment and to which he had had access, he would have realised immediately that his suspicions of active euthanasia were clearly unfounded.", "13. On 26 September 2014 the applicant was suspended from office.", "14. On 2 October 2014 the applicant made a written statement setting out his position to the National Hospital on the latter’s request. He explained that he had done some research in the electronic files of several patients who had died in the past weeks following an indication by a doctor working in the hospital that recently there had been an unusual rise in deaths of patients in the hospital. In his view, the ten patients concerned had clearly not been treated lege artis. After thorough reflection, he had decided to inform the Public Prosecutor’s Office in order to protect the patients and the hospital and to comply with his own ethical convictions and the provisions of the Physicians’ Act ( Ärztegesetz; see paragraph 36 below). As he was convinced that there had been criminal offences, as he had not expected the matter to be investigated properly within the hospital and in view of the urgency of the situation, he had not contacted an internal body of the hospital prior to lodging a criminal complaint with the Public Prosecutor’s Office.", "15. In a report received by the National Hospital on 15 October 2014 a Swiss external medical expert in palliative medicine commissioned by the Hospital, N., having studied the medical paper files of the patients concerned and having heard Dr H., concluded that no active euthanasia had been practised on the ten patients in question. The expert considered that the patients’ palliative treatment had been necessary and justified as they had been at the end of their lives. They had died as a result of their illnesses and not as a result of their treatment. They had been given morphine in order to treat their pain and difficulty in breathing and not to end their lives. The expert noted that some of the morphine doses prescribed – especially those “without upper limit” – may not have been necessary, but such doses had never been administered in practice.", "16. On 17 October 2014 the director of the National Hospital dismissed the applicant without notice. He considered that owing to the applicant’s severe fault, the relationship of trust with him had been destroyed irretrievably. He argued that the applicant had failed to raise his allegations of active euthanasia and quality flaws with the hospital’s competent internal bodies prior to raising them externally with the President of the Parliamentary Control Committee and with the Public Prosecutor’s Office. The applicant had been obliged to inform Dr H., or at least the director of the hospital or a member of the foundation board with whom he had a normal relationship, of his allegations. Furthermore, the applicant’s allegations of euthanasia had been considered as clearly unfounded by the external expert commissioned by the hospital.", "17. The Liechtenstein newspapers and radio repeatedly reported on the suspicions of active euthanasia at the Liechtenstein National Hospital and the criminal investigations against Dr H. in this respect.", "The outcome of the criminal investigation proceedings against dr h. and against the applicant", "18. The investigating judge in the criminal proceedings against Dr H. had also commissioned an external expert practising in Austria, L. In his report dated 30 October 2014, received by the investigating judge on 11 December 2014, the expert, having regard to the medical paper files of the patients in question, came to the conclusion that Dr H. had not practised active euthanasia. The patients had been given morphine only as necessitated by their palliative situation and this treatment had not caused the patients’ death. Doubts regarding such palliative medical treatment and ethical decisions taken in that context could be excluded by a better documentation of the treatment in the future.", "19. On 15 December 2014 the criminal proceedings against Dr H. were discontinued.", "20. On 15 December 2016 criminal proceedings instituted against the applicant for having deliberately cast wrong suspicions of a criminal offence on another person by his allegations that Dr H. had practised active euthanasia were equally discontinued.", "The proceedings before the domestic courtsProceedings before the Regional Court", "Proceedings before the Regional Court", "Proceedings before the Regional Court", "21. On 28 November 2014 the applicant brought an action against the Liechtenstein National Hospital for payment of some 600,000 Swiss francs (CHF) in compensation for the loss of salary and further pecuniary and non ‑ pecuniary damage. He claimed that his dismissal without notice had been unlawful. There had been no important reason for his dismissal as lodging a criminal complaint against Dr H. had been justified in view of the concrete suspicions of active euthanasia and the gravity of the offence concerned.", "22. On 29 August 2017 the Regional Court dismissed the applicant’s action. It found that the applicant’s dismissal without notice had been justified under Article 1173a § 53 (1) and (2) of the Civil Code (see paragraph 35 below). The court considered, in essence, that there had been an important reason for the employing hospital to terminate the employment contract. As the applicant had failed to sufficiently verify his unfounded suspicions of active euthanasia in the patients’ medical paper files and to signal his suspicions within the hospital prior to informing external bodies thereof, the continuation of the employment relationship by the hospital could no longer be expected in good faith.", "Proceedings before the Court of Appeal", "23. On 10 January 2018 the Court of Appeal, allowing an appeal lodged by the applicant, quashed the Regional Court’s judgment. It ordered the defendant hospital to pay the applicant CHF 125,000 in salary arrears and remitted the remainder of the case to the Regional Court for a fresh consideration of the applicant’s compensation claims. The Court of Appeal found that the applicant’s dismissal without notice had not been justified. The disclosure of irregularities to third persons was covered by the right to freedom of expression and could justify a dismissal only if it was coupled with a serious breach of the duty of loyalty. However, there was no such serious breach in the present case.", "24. The Court of Appeal argued that the institution of proceedings against Dr H. by the Public Prosecutor’s Office confirmed that the applicant’s suspicions had not been unfounded. In view of the severity of the offence at issue, contacting external bodies such as the Parliamentary Control Committee or the Public Prosecutor’s Office, which were both under a duty of confidentiality, had not been disproportionate. The fact that the applicant had reported directly to the Public Prosecutor’s Office did not raise an issue in this respect. The court further agreed with the applicant that in the circumstances of the case, reporting the issue to Dr H. in the context of the internal mechanism to report irregularities had not been a suitable approach.", "Proceedings before the Supreme Court", "25. On 4 May 2018 the Supreme Court, allowing the defendant hospital’s appeal on points of law, quashed the Court of Appeal’s judgment. It dismissed the applicant’s claim for payment of CHF 125,000 in salary arrears in a partial judgment and remitted the remainder of the case to the Court of Appeal in a partial decision for it to dismiss the applicant’s action in that regard.", "26. The Supreme Court considered that the applicant’s dismissal without notice had been lawful. It stressed that the applicant, a senior employee, had only consulted the electronic medical files, which he had known to be incomplete, although he could have consulted the paper files at any moment. If he had done so, he would have recognised immediately that his suspicions were clearly unfounded. He had thus failed to verify his serious and unjustified allegations before disclosing them to third persons and before lodging a criminal complaint. This conduct amounted to a serious breach of trust in relation to his employer which justified his dismissal without notice.", "Proceedings before the Constitutional Court", "27. On 4 June 2018 the applicant lodged a complaint with the Constitutional Court against the partial judgment and partial decision of the Supreme Court. He argued that his dismissal had breached, in particular, his right to freedom of expression under the Constitution and Article 10 of the Convention. Reporting his suspicions of active euthanasia to external bodies had been justified whistle-blowing.", "28. On 3 September 2018 the Constitutional Court found that the applicant’s constitutional complaint was admissible as the Supreme Court had taken a final stance on the applicant’s action, but dismissed the complaint on the merits (file no. StGH 2018/74).", "29. The right to freedom of expression applied in the relationship between the applicant and the Liechtenstein National Hospital. While the hospital was a State institution, the applicant’s dismissal was not an act of public authority, but was governed by private law. The right to freedom of expression nevertheless applied indirectly in their relationship ( indirekte Drittwirkung ).", "30. The Constitutional Court accepted that the applicant regarded himself as a whistle-blower. Having regard to the criteria developed, inter alia, by the European Court of Human Rights in the case of Heinisch v. Germany (no. 28274/08, ECHR 2011 (extracts)) on freedom of expression in the context of whistle-blowing, the Constitutional Court found that the applicant’s right to freedom of expression had not been violated by his dismissal without notice. It recognised that there was a considerable public interest in medical treatment which was in accordance with the state of the art in a public hospital. Moreover, the civil courts had not found that the applicant had acted out of personal motives.", "31. The Constitutional Court noted, however, that the applicant had failed to test his suspicions regarding the practice of active euthanasia arising from the electronic medical files by verifying the paper files of the patients concerned. Had he done so, he would have realised immediately that his suspicions – which could be considered comprehensible having regard to the electronic files alone – were clearly unfounded. In the light of the gravity of the allegations and the consequences for all concerned by them in the event that these allegations became public, the applicant had been obliged to proceed to such verification, even more as he had known that the electronic files had been incomplete. The applicant had therefore acted irresponsibly. Therefore, his right to freedom of expression had not been breached.", "32. The Constitutional Court, just as the Supreme Court, could thus leave open whether the applicant, prior to raising his allegations externally, should have attempted to raise them internally, notably with the director of the hospital.", "33. The judgment was served on the applicant’s counsel on 7 November 2018." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "relevant domestic lawProvisions of the Civil Code", "Provisions of the Civil Code", "Provisions of the Civil Code", "34. Article 1173a of the Civil Code ( Allgemeines bürgerliches Gesetzbuch ) lays down rules on employment contracts. Paragraph 4 of that Article, in so far as relevant, provides:", "“(1) The employee must carry out the work entrusted to him diligently and must respect the employer’s legitimate interests loyally.”", "35. Article 1173a § 53 of the Civil Code contains rules on the termination of employment contracts without notice for important reasons. In so far as relevant, it provides:", "“(1) For important reasons, both the employer and the employee may terminate an employment relationship at any time without notice; ...", "(2) An important reason exists, in particular, where, in the circumstances, a continuation of the employment relationship cannot be expected any longer in good faith from the party terminating the relationship.”", "Provision of the Physicians’ Act", "36. The Physicians’ Act ( Ärztegesetz ) of 22 October 2003 lays down rules on physicians’ exercise of their profession. Article 20 of that Act, on notification duties, in so far as relevant, provides:", "“(1) Physicians are obliged to notify the Office of Public Health ( Amt für Gesundheit ) or directly the Public Health Service ( amtsärztlicher Dienst ) of findings made in the exercise of their profession which give rise to suspicions that a criminal offence resulted in a person’s death or serious bodily injury ...”", "relevant international law and practiceResolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers”", "Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers”", "Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers”", "37. In its Resolution 1729 (2010) on the protection of “whistle-blowers”, adopted on 29 April 2010, the Parliamentary Assembly of the Council of Europe (PACE) stressed the importance of “whistle-blowing” – concerned individuals sounding an alarm in order to stop wrongdoings that place fellow human beings at risk – notably as an opportunity to strengthen accountability in both the public and private sectors (see point 1 of the Resolution). It invited all member States to review their legislation concerning the protection of whistle-blowers, keeping in mind the following guiding principles:", "“(...)", "6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;", "6.1.2. the legislation should therefore cover both public and private sector whistle ‑ blowers ..., and", "6.1.3. it should codify relevant issues in the following areas of law:", "6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ...", "(...)", "6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).", "6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.", "6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.”", "38. The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010) adopted on the same day, recommending, inter alia, that the Committee of Ministers draw up a set of guidelines for the protection of whistle-blowers (point 2.1).", "Recommendation CM/Rec(2014)7 of the Committee of Ministers of the Council of Europe on the protection of whistleblowers", "39. On 30 April 2014, at the 1198 th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2014)7 to member States on the protection of whistleblowers. The Committee of Ministers took note, in particular, of Resolution 1729 (2010) of the Parliamentary Assembly (see paragraph 37 above). It recommended that member States have in place a normative, institutional and judicial framework to protect individuals who, in the context of their work-based relationship, report or disclose information on threats or harm to the public interest. The appendix to the Recommendation sets out a series of principles to guide member States in the protection of such “whistleblowers”.", "40. The Appendix to Recommendation CM/Rec(2014)7 provides, in particular:", "“ IV. Channels for reporting and disclosures", "(...)", "13. Clear channels should be put in place for public interest reporting and disclosures and recourse to them should be facilitated through appropriate measures.", "14. The channels for reporting and disclosures comprise:", "– reports within an organisation or enterprise (including to persons designated to receive reports in confidence);", "– reports to relevant public regulatory bodies, law enforcement agencies and supervisory bodies;", "– disclosures to the public, for example to a journalist or a member of parliament.", "The individual circumstances of each case will determine the most appropriate channel.”", "(...)", "VII. Protection against retaliation", "21. Whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer. Forms of such retaliation might include dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment.", "22. Protection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy.", "(...)", "24. Where an employer has put in place an internal reporting system, and the whistleblower has made a disclosure to the public without resorting to the system, this may be taken into consideration when deciding on the remedies or level of protection to afford to the whistleblower.”", "Further Council of Europe texts and other international instruments", "41. The Parliamentary Assembly recalled its Resolution 1729 (2010) in subsequent texts on whistle-blowing, notably in Resolution 2060 (2015) and Recommendation 2073 (2015) on improving the protection of whistle ‑ blowers, both adopted by the Parliamentary Assembly on 23 June 2015, and in Resolution 2300 (2019) and Recommendation 2162 (2019) on improving the protection of whistle-blowers all over Europe, both adopted on 1 October 2019.", "42. Further Council of Europe and other international instruments relevant in this field are referred to in Heinisch (cited above, §§ 38-40).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "43. The applicant complained that his dismissal without notice from the National Hospital on account of the fact that he had lodged a criminal complaint for active euthanasia had breached his right to freedom of expression as provided in Article 10 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (...)", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "44. The Government contested that view.", "Admissibility", "45. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsWhether there was an interference", "Whether there was an interference", "Whether there was an interference", "46. In the applicant’s submission, his dismissal without notice after he had raised suspicions externally that active euthanasia had been practised in the National Hospital constituted an interference with his right to freedom of expression under Article 10 of the Convention. The Government agreed that the dismissal had interfered with Article 10.", "47. The Court reiterates that the protection of Article 10 extends to the workplace in general (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts) with further references; Matúz v. Hungary, no. 73571/10, § 26, 21 October 2014; and Langner v. Germany, no. 14464/11, § 39, 17 September 2015). In cases concerning freedom of expression of employees in State-owned or State-controlled companies or bodies, it recalled that Article 10 applied not only to employment relationships governed by public law, but also to those under private law. In addition, in certain cases, the State had a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; Heinisch, cited above, § 44; and Matúz, cited above, § 26).", "48. The Court notes that, on account of his statements regarding active euthanasia, the applicant was dismissed as a physician by the Liechtenstein National Hospital, a public law foundation; his employment relationship was governed by private law. The dismissal was subsequently endorsed, in particular, by the Liechtenstein Constitutional Court. The Court considers that in these circumstances, the measure in question constituted an interference by a State authority with the applicant’s right to freedom of expression as guaranteed by Article 10 § 1 of the Convention (compare also Fuentes Bobo, cited above, § 38; Heinisch, cited above, § 45; and Matúz, cited above, § 27, in all of which the dismissal of an employee in a State ‑ owned or controlled company whose employment relationship was governed by private law was addressed from the standpoint of an interference with the respective employee’s rights).", "Whether the interference was justified", "49. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim.", "(a) Interference “prescribed by law”", "50. The Court observes that the applicant’s dismissal was based on Article 1173a § 53 of the Civil Code (see paragraphs 22 and 35 above), which authorises the termination of employment contracts without notice for important reasons. It was thus “prescribed by law” for the purposes of Article 10 § 2. This is indeed uncontested by the parties.", "(b) Legitimate aim", "51. The Court notes that there was no dispute between the parties, and the Court agrees, that the interference pursued the legitimate aims of protecting the reputation and rights of others. It served to protect both the business reputation and interests of the employing National Hospital, including its interest in a professional work relationship based on mutual trust, and the reputation of the hospital’s chief physician who was concerned by the applicant’s allegations of euthanasia (compare also Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II; Heinisch, cited above, § 49, and Langner, cited above, § 40).", "(c) Necessity of the interference in a democratic society", "(i) The parties’ submissions", "(α) The applicant", "52. In the applicant’s submission, his dismissal without notice had been disproportionate and thus not justified. He stressed, first, that the information given by him to the Public Prosecutor’s Office regarding suspicions of active euthanasia on seriously ill and defenceless patients had undoubtedly been of considerable public interest.", "53. The applicant further took the view that he had verified sufficiently that the information he disclosed was accurate and reliable. He contested, in particular, that it would clearly have resulted from the paper version of the medical files of the patients concerned that his suspicions had been unfounded. Both the hospital and the investigating judge considered it necessary to consult an external expert on the question of whether there had been active euthanasia and one of the experts had found that there had been an insufficient documentation of the treatment in these files. Moreover, his employer would have noticed research in the paper files.", "54. The public interest in a democratic society to be informed of potential irregularities in the treatment in a public hospital outweighed the hospital’s business interests. The allegations contained in the criminal complaint lodged by him with the Public Prosecutor’s Office had been detrimental to the National Hospital, but it had been the hospital itself which had informed the media and public thereof.", "55. Moreover, the applicant argued that there had not been any effective internal channels for making the disclosure. He had not been obliged to report his suspicions to his superior, Dr H., who was directly concerned by them, as this would have resulted in his immediate dismissal. The director of the hospital was part of the hospital’s management, together with Dr H. The hospital’s foundation board, for its part, had not been responsible for employees’ complaints of this kind. Likewise, he had not been obliged to turn to the hospital’s internal complaint mechanism CIRS as he had not been informed that at the relevant time, it was no longer Dr H. himself who was responsible for dealing with the complaints received. Therefore, the only way to ensure effective investigations in the present case had been to contact an external body, the Public Prosecutor’s Office, which had been independent of internal personal links and – just like the Parliamentary Control Committee – under a duty of confidentiality. Moreover, owing to the gravity of the suspicions, the fact that several patients had died shortly after the start of their morphine treatment and his position of deputy head of department potentially exposing him to criminal liability himself, it had been urgent to act.", "56. The applicant stressed that he had been fully convinced that, having regard to the information contained in the electronic files which he considered to contain sufficient information, that there had been active euthanasia. He had therefore disclosed the information in good faith.", "57. The applicant finally submitted that his dismissal without notice, being the harshest sanction under labour law, had also had the consequence that he had had to leave Liechtenstein with his family as he was to lose his residence permit as a result. Furthermore, he had had serious difficulties in finding new employment afterwards. This had a chilling effect on other hospital employees, discouraging them from disclosing irregularities.", "(β) The Government", "58. In the Government’s view, the interference with the applicant’s right to freedom of expression had been justified as it had been necessary to protect the reputation and the rights of the employing hospital and of the accused chief physician. The Government accepted that there was in principle an interest of the hospital’s patients in the protection of their life and limb and also, generally, a public interest in information on whether the treatment in a public hospital was in accordance with the rules of the medical profession. However, it had to be taken into account in the present case that the applicant’s allegations had been frivolous and unfounded.", "59. The Government further submitted that, as had been confirmed by the domestic courts, the applicant had failed to verify in the paper medical files of the patients concerned that the information he had disclosed on the basis of elements discovered in the electronic files, which he knew to be incomplete, was accurate and reliable. The applicant had been able to do so at any time and would then have realised that his suspicions of active euthanasia were unfounded.", "60. The public interest in having the information in question revealed did not outweigh the interest of the applicant’s employer and of the chief physician concerned in the protection of their business and personal reputation, damaged as a result of the applicant’s serious and unjustified allegations.", "61. Several effective alternative channels for making the disclosure, obtaining an internal clarification of the allegations rapidly and remedying the alleged wrongdoing, would have been available to the applicant. He could have informed the director or a member of the foundation board of the hospital. As had been demonstrated by the investigations done following the disclosure of the allegations by the applicant, there was nothing to indicate that they would not have investigated the allegations properly. Alternatively, the applicant could have complained anonymously via the Hospital’s Critical Incident Reporting System (CIRS). The filing of the criminal complaint against Dr H. had disregarded the internal official channel of reporting irregularities.", "62. The fact that the applicant had neither verified his suspicions nor contacted an internal body first also showed that he had not acted in good faith.", "63. The dismissal without notice of the applicant in these circumstances did not have a chilling effect on other employees of the hospital or in the health sector more generally. The employer’s immediate investigations following the disclosure of the information by the applicant rather encouraged these persons to contact internal bodies regarding suspicions of irregularities first.", "(ii) The Court’s assessment", "(α) Relevant principles", "64. The general principles for the assessment of whether an interference with the right to freedom of expression was “necessary in a democratic society” have been set out in numerous judgments (see, inter alia, Steel and Morris, cited above, § 87; Guja v. Moldova [GC], no. 14277/04, § 69, ECHR 2008; and Heinisch, cited above, § 62). In essence, the Court’s task is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. It has to determine whether the interference complained of was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.", "65. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja, cited above, § 72; Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009; and Langner, cited above, § 44). The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Guja, cited above, § 70; Marchenko, cited above, § 45; Heinisch, cited above, § 64; and Matúz, cited above, § 32).", "66. When assessing, in this context, the proportionality of the interference with an employee’s right to freedom of expression in relation to the legitimate aim pursued, the Court, in its case-law (see, in particular, Guja, cited above, §§ 73-78; Heinisch, cited above, §§ 64-70; Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013; and Matúz, cited above, § 34), has had regard to the following six criteria.", "67. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. There is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; and Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ V).", "68. The second factor relevant in this balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if the person concerned owes a duty of discretion and loyalty to his or her employer and there is question of attacking the reputation of private individuals (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ).", "69. Third, on the other side of the scales, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76).", "70. Fourth, the Court needs to determine whether, in the light of the duty of discretion owed by an employee towards his or her employer, the information was made public as a last resort, following disclosure to a superior or other competent body (see Matúz, cited above, § 34) unless it is clearly impracticable to disclose the information to a superior or other competent authority (see Marchenko, cited above, § 46). The Court must take into account in this context whether any other effective means of remedying the wrongdoing which the employee intended to uncover were available to him or her (see Marchenko, cited above, § 46).", "71. Fifth, the motive behind the actions of the reporting employee is another determining factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina v. Russia, no. 29492/05, § 95, 26 February 2009). It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77).", "72. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the severity of the sanction, in particular the penalty imposed on the employee and its consequences, is required (see Fuentes Bobo, cited above, § 49).", "(β) Application of these principles to the present case", "‒ Public interest in the disclosed information", "73. In determining whether, in the light of the above principles, the dismissal without notice of the applicant was “necessary in a democratic society” in the circumstances of the present case, the Court notes at the outset that the Constitutional Court, in its assessment of the applicant’s complaint, had regard to the above-mentioned criteria developed in the Court’s case-law (see paragraphs 30-32 above). In reviewing, under Article 10, the domestic court’s decision, the Court observes that the Constitutional Court recognised that there was considerable public interest in medical treatment in a public hospital which was in accordance with the state of the art. The Court considers that the information disclosed by the applicant, namely the suspicion that a chief physician currently working at the Liechtenstein National Hospital had repeatedly practised active euthanasia, concerned suspicions of the commission of serious offences, namely the killing of several vulnerable and defenceless patients, in a public hospital, as well as a risk of repetition of such offences. It agrees that this information was as such of considerable public interest.", "‒ Authenticity / veracity of the information disclosed", "74. As regards the authenticity, in the sense of veracity, of the information disclosed by the applicant, the Court cannot but note, however, that the Supreme Court and the Constitutional Court, in particular, found that the suspicions of active euthanasia which the applicant had reported to the Public Prosecutor’s Office had been clearly unfounded. The Court observes that the assessment that no active euthanasia had been practised was shared, in particular, by the two external medical experts, N. and L., who had been asked by the Liechtenstein National Hospital and the Public Prosecutor’s Office respectively to examine this question on the basis of the medical paper files (see paragraphs 15 and 18 above). While the Court does not overlook that the applicant contested that his suspicions were clearly unfounded, it cannot but note that he did not consult all patients’ paper files. Despite the fact that expert L. saw some room for improvement in the documentation in these files, both external experts concluded without any reservations that the patients in question had received necessary and justified palliative treatment. The domestic courts, in finding on the basis of these reports that the information disclosed by the applicant was clearly wrong and thus did not have a sufficient factual basis, therefore relied on an acceptable assessment of the relevant facts.", "75. The Court would stress that information disclosed by whistle ‑ blowers may also be covered by the right to freedom of expression under certain circumstances where the information in question subsequently proved wrong or could not be proven correct. It recalls, in particular, that it cannot reasonably be expected of a person having lodged a criminal complaint in good faith to anticipate whether the investigations will lead to an indictment or will be discontinued (see Heinisch, cited above, § 80). However, in these circumstances the person concerned must have complied with the duty to carefully verify, to the extent permitted by the circumstances, that the information is accurate and reliable (compare Guja, cited above, § 75, and Heinisch, cited above, § 67).", "76. The Court observes that the guiding principles developed by the PACE in its Resolution 1729 (2010) on the protection of “whistle-blowers” reflect the same approach, stating that “[a]ny whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case ...” (see point 6.2.4., cited in paragraph 37 above, and compare, mutatis mutandis, Heinisch, ibid., and Bucur and Toma, cited above, § 107). Likewise, the guiding principles in the Appendix to Recommendation CM/Rec(2014)7 on the protection of whistle-blowers provide that “[p]rotection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy” (principle no. 22, cited in paragraph 40 above).", "77. In the present case, the applicant, as stressed also by the Supreme Court and the Constitutional Court (see paragraphs 26 and 31 above), based his allegations of active euthanasia only on the information available in the electronic medical files which, as he had known as a doctor practising in the National Hospital, did not contain complete information on the patients’ state of health. Comprehensive information in this respect was only available in the paper medical files which the applicant, however, did not consult. As the Supreme Court and the Constitutional Court determined, had he done so, he would have recognised immediately that his suspicions were clearly unfounded and he had therefore acted irresponsibly (see paragraphs 26 and 31 above). By reason of the duties and responsibilities inherent in the exercise of the freedom of expression (see paragraph 68 above), the safeguard afforded by Article 10 to whistle-blowers is subject to the proviso that they acted in order to disclose information that is accurate and reliable and in accordance with professional ethics (compare, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 87 and 109, 27 June 2017). This applies, in particular, if the person concerned, like the applicant in the present case as deputy chief physician and thus a high-ranking and highly qualified employee, owes a duty of loyalty and discretion to his or her employer.", "78. The Court does not lose sight of the fact that the applicant, in the light of the interpretation he had made of the information in the electronic files, namely that active euthanasia had repeatedly been practised in the hospital and might continue being practised, must have concluded that it was very urgent to act in order to stop that practice. However, given that, as had been found by the domestic courts (see, in particular, paragraph 26 above), the applicant as a deputy chief physician, could have consulted the paper files at any moment, the Court considers that this verification would not have been very time-consuming. Having regard to the gravity of an allegation of active euthanasia the Court therefore agrees with the domestic courts’ finding that the applicant was obliged to, but failed to proceed to such a verification (compare also, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others, cited above, § 115). He did not, therefore, carefully verify, to the extent permitted by the circumstances, that the information he disclosed was accurate and reliable.", "‒ Detriment to the employer", "79. As for the damage suffered notably by the employer as a result of the disclosure in question, the Court considers that the allegation of active euthanasia having been practised at a State-run hospital was certainly prejudicial to the employing hospital’s business reputation and interests and to the public confidence in the provision of medical treatment in accordance with the state of the art in the only public hospital in Liechtenstein. It was further prejudicial to the personal and professional reputation of another staff member of that hospital, namely the chief physician concerned by the allegations. The Court observes in this context that the applicant initially did not voice his allegations in public, but disclosed them by lodging a criminal complaint, in particular, to the Public Prosecutor’s Office, which was under a duty of confidentiality (see paragraph 24 above). However, following the ensuing investigations including the seizure of the medical files at the National Hospital, the applicant’s allegations became known to a larger public and were – quite predictably, given the gravity of the allegations – repeatedly discussed in the Liechtenstein media which risked increasing their prejudicial effect.", "80. As shown above, there was as such a public interest in the revelation of information on suspicions of repeatedly practised active euthanasia in a public hospital. However, in the present case, in which the well ‑ foundedness of that suspicion had not been sufficiently verified prior to its disclosure, the public interest in receiving such information cannot outweigh the employer’s and chief physician’s interest in the protection of their reputation.", "‒ Existence of alternative channels for making the disclosure", "81. As for the question whether the information in question was revealed to an external body as a last resort, the Court observes that both the Supreme Court and the Constitutional Court left open the question whether the applicant, prior to raising his suspicions externally, should have attempted to raise them internally (see paragraph 32 above). The Court, having regard to the circumstances of the case, the gravity of the acts at issue and its case-law (compare, in particular, Bucur and Toma, cited above, § 97), finds that the applicant could not be expected to first raise his suspicions with his superior Dr H., who was directly concerned by them. As for the internal reporting channel, the CIRS, the Court notes that it has not been shown that it had been communicated within the hospital that anonymous reports of irregularities via that system were no longer handled by Dr H. alone (see paragraph 11 above). Therefore, the applicant could legitimately proceed on the assumption that redress could not be obtained in this way either.", "82. It remains to be determined whether the applicant should have raised his suspicions either with a member of the hospital’s foundation board or with the hospital’s director prior to lodging a criminal complaint. The Court notes that, in view of the normal professional relationship between the applicant and these bodies and the availability of medical expertise within the hospital, these instances appear to be effective alternative channels for disclosure, with the potential to remedy any irregularities rapidly. However, the Court does not overlook either that the offences which the applicant suspected his direct superior of were serious and that there was a possibility that he might himself be held liable in case of a failure to report such offences. It further takes note of the fact that the guiding principles in the Appendix to the Committee of Ministers’ Recommendation CM/Rec(2014)7 on the protection of whistle-blowers do not establish an order of priority between the different channels of reporting and disclosure, stating that the individual circumstances of each case will determine the most appropriate channel (see principle no. 14, at paragraph 40 above). The Court considers, however, that in the circumstances of the case it can leave open the question whether the applicant was obliged to raise his suspicions with the said internal instances of the hospital.", "‒ Applicant’s motives for the disclosure", "83. As to the applicant’s motive for reporting his suspicions of active euthanasia, the Court observes that the domestic courts did not find that the applicant had acted out of personal motives (see paragraph 30 above). Having regard to the material before it, the Court does not have reasons to doubt that the applicant, in making the disclosure, acted in the belief that the information was true and that it was in the public interest to disclose it.", "‒ Severity of the sanction", "84. Finally, as regards the severity of the sanction imposed on the applicant, the Court observes that the applicant’s dismissal without notice constituted the heaviest sanction possible under labour law (compare also Guja, cited above, § 95; Heinisch, cited above, § 91; and Langner, cited above, § 53). This sanction not only had negative repercussions on his professional career, it also led to the applicant and his family having to leave Liechtenstein as he was to lose his residence permit as a foreign national without employment. Having regard also to the media coverage regarding the suspicions of euthanasia in Liechtenstein, the sanction therefore must have had a certain chilling effect on other employees in the hospital and the health sector in general – at least as regards the direct disclosure to external bodies of suspicions of irregularities.", "(iii) Conclusion", "85. Having regard to the foregoing considerations, the Court concludes that the applicant did not act with improper motives. However, he raised suspicions of a serious offence with an external body without having carefully verified that the information he disclosed, which was as such of public interest, was accurate and reliable. The Court further observes that the domestic courts, having regard to the criteria developed in the Court’s case-law, adduced relevant and sufficient reasons for their finding that, in these circumstances, the applicant’s dismissal without notice, having regard to the prejudicial effect of the disclosure on the employer’s and the other staff member’s reputation, was justified. They struck a fair balance between the need to protect the employer’s and the staff member’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other.", "86. The Court therefore concludes that the interference with the applicant’s right to freedom of expression, in particular his right to impart information, was proportionate to the legitimate aim pursued and thus necessary in a democratic society.", "87. There has accordingly been no violation of Article 10 of the Convention." ]

[ "2. The applicant was born in 1967 and lives in Warsaw. He was granted legal aid and was represented by Ms A. Bzdyń, a lawyer practising in Warsaw.", "3. The Government were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background", "5. Between 1997 and 2008, the applicant, who is an art historian, was employed by the Museum of Hunting and Equestrianism ( Muzeum Łowiectwa i Jeździectwa ) (“the museum”). In the last four years of his employment, he worked as the manager of the nature and hunting department.", "The applicant’s alleged actions in respect of the museum", "6. On 28 November 2007 and on 10 March 2008 letters, signed: “Staff of the Museum of Hunting and Equestrianism”, were sent to the Tax Office ( Izba Skarbowa ), Supreme Audit Office ( Najwyższa Izba Kontroli ), Regional Prosecutor ( Prokuratura Okręgowa ), and the President’s Office ( Kancelaria Prezydenta ).", "7. The applicant denied being the author of the above-mentioned letters.", "8. The letters contained allegations about the mismanagement of public funds, labour law infringements, flaws in the organisation of the workplace and accounting, the hiring of staff through the back door ( po znajomości ) and irregularities in awarding financial bonuses. It was also stated in the letters that the museum’s director, P.Ś., was incompetent, lacked adequate knowledge and organisational skills, and that he had entered into unprofitable tender contracts, had used the museum’s funds for private purposes, had resorted to bullying, and had acted in his own private interest.", "9. As established by the domestic courts in the proceedings described below, the letters contained the following statements.", "“[D]uring renovation works, exhibits sustain damage – they are constantly moved [and] stored in unsuitable places, but Ś. [P.Ś.’s full last name] is not interested in this – he is interested in how to steal more money” ( w czasie remontów niszczą się eksponaty, ciagle przenoszone, przechowywane w miejscach do tego nie przystosowaych, ale to Ś. nie interesuje, on jest zainteresowany, aby jak najwięcej ukraść pieniędzy ).", "“[He] clearly cannot organise work at the museum. He resorts to bullying and improvised decision-making ( rażąco nie umie organizować pracy w muzeum. Stosuje mobbing i ręczne sterowanie ).”", "“[He] uses words [which are] commonly considered offensive ..., [and] is driven only by his own self-interest and gain. He does not have any capacity to make decisions, does not know how to make a decision, [and] messes up the organisation of work at the museum ( Używa słów powszechnie uznanych za obraźliwe ... kieruje się jedynie własnym dobrem i korzyścią. Nie ma żadnych predyspozycji do podejmowania decyzji, nie umie podjąć decyzji, dezorganizuje pracę w muzeum.) ”", "“Ś. [P.Ś.’s full last name] organises, using public funds, exhibitions for private individuals ( Ś... robi za publiczne pieniądze wystawy osobom prywatnym ).”", "10. The letters also contained the following statement below about P.Ś.", "“[P.Ś] has a persecution complex. He follows and eavesdrops on employees. He uses telephones [and] the Internet to monitor employees, and now cameras are to be installed ... Ś. taps employees’ telephones. ( Ma manię prześladowczą. Śledzi i podsłuchuje pracowników. Do monitoringu pracowników wykorzystuje telefony, internet, i obecnie mają być montowane kamery ... Ś. podsłuchuje telefony pracowników ).”", "11. P.Ś. had not been a party to the impugned criminal proceedings (described below). Moreover, he had also never instituted any civil action against the applicant.", "The museum’s audits", "12. In 2008 a series of management and tax audits were carried out by various public institutions at the museum.", "13. The domestic courts established that at least one audit – that undertaken by the Supreme Audit Office – had been carried out of its own initiative. They further established that the audit undertaken by the Ministry of Culture had been carried out in relation to the applicant’s letters.", "14. The contents of the post-audit reports are unknown to the Court.", "The applicant submitted that the Supreme Audit Office had confirmed that the storage and the public display of the museum’s artefacts had been marked by irregularities. The domestic court established (during the criminal proceedings described below) that the said audits had not revealed any shortcomings in the running of the museum. The preliminary criminal inquiry that had been opened following the audits, had ultimately been discontinued.", "15. The domestic court also established that the audits had temporarily disturbed the work of the museum. Moreover, in 2008 the museum had received 50% less funding from public sources than in the previous years. The applicant contested that finding in his appeal to the domestic court (see paragraph 27 below).", "Criminal proceedings against the applicant", "16. On 25 September 2008 the museum filed a private bill of indictment against the applicant, accusing him of disseminating, between 21 December 2007 and 16 July 2008, untrue information about the activities of the museum’s management.", "17. The case was registered with the Warsaw District Court, which held ten hearings.", "18. On 26 July 2012 the Warsaw District Court convicted the applicant of libel of the museum and its management on account of the applicant’s sending four anonymous letters – on 28 November 2007, to the Tax Office, the Supreme Audit Office, and the Regional Prosecutor and, on 10 March 2008, to the President of Poland’s Office – that contained defamatory statements, and by doing so, putting the museum at risk of losing the public trust necessary for its social, cultural and educational activities.", "19. The court imposed on the applicant a fine ( grzywna ) in the amount of 2,500 Polish zlotys (PLN – approximately 625 euros (EUR)). The applicant was also ordered to bear various costs of the proceedings in the total amount of PLN 1,596 (approximately EUR 400).", "20. The Warsaw District Court considered it established that the envelopes that had contained the impugned letters bore handwriting which, without any doubt, was that of the applicant.", "21. The Warsaw District Court based its findings of fact, as described above, on the testimony of five witnesses, including the museum’s director; two reports issued by a court-appointed expert in the forensic examination of documents; a copy of the Warsaw District Prosecutor’s decision declining to open a criminal investigation; the post-audit report of the Supreme Audit Office; a copy of the Warsaw District Court’s judgment of 3 November 2009 delivered in the applicant’s related case no. IV W 325/09; a psychiatric report; letters from the President’s Office, the Tax Office, and Minister of Culture and Science (original typed letters which had been sent to the above-mentioned relevant institutions, together with hand-addressed envelopes); various reports concerning the museum; and the post-audit report of the Ministry of Culture, and various other pieces of evidence.", "22. Before the Warsaw District Court the applicant stated that he had not written or sent the impugned letters. He also argued that the case had been mounted against him in revenge for his unbiased work as a court-appointed expert in a certain high-profile case concerning another museum. The applicant stated that P.Ś. had attempted to pressure him into drafting a report which would be favourable to the director of that museum, who was P.Ś.’s friend. When the applicant refused, attempts were made to have him discredited: the applicant was accused of stealing an exhibit and of libelling the museum and, ultimately, his employment contract was terminated with three months’ notice. The applicant recalled instances when, in his opinion, P.Ś. had placed himself in a situation in which he had faced a conflict of interests or had disregarded the applicant’s warning that exhibits had been inappropriately handled. On the other hand, he said that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees.", "23. The court, which heard P.Ś. and other witnesses in respect of the above allegations made by the applicant, found that the museum’s director had not been biased against the applicant.", "24. Furthermore, the Warsaw District Court found that the impugned libel did not concern P.Ś., as a private person, but rather the museum, as an institution, and its management. For the court, denunciations of a wrongful conduct should rely on facts and not only on bare value judgments of the person making such denunciations. Defamation could take the form of the accusation of a specific factual conduct or of the voicing of a general opinion about the actions or the features of an injured party.", "25. On the facts, the Warsaw District Court found that the applicant’s statements contained untrue allegations which had shed a bad light on the museum and its director. Irrespective of whether the applicant’s statements had resulted in the audits or had had any other negative consequences for the museum, they had clearly put the museum at risk of losing its good reputation. The applicant had not acted in good faith – that is to say, in defence of the museum’s interests. He had acted with direct intent to damage the reputation of the museum and its management by making allegations which had not been objectively confirmed. Having worked long years at the museum, the applicant had been perfectly aware of the untrue nature of his statements.", "26. As for the fine, the Warsaw District Court observed that it was proportionate, on the one hand, to the harm caused by the applicant’s actions and, on the other hand, to the applicant’s income. To that end, the court established that the applicant made PLN 3,000 per month and had no dependent persons.", "27. The applicant appealed, arguing that the first-instance court had erred in finding him to be the author of the letters in question and that, by convicting him, it had “violated his human rights”. On 25 January 2013 the Warsaw Regional Court ( Sąd Okręgowy ) upheld that judgment. The judgment was served on the applicant’s lawyer on 20 April 2013.", "28. On an unspecified date, the Prosecutor General declined to grant the applicant’s request and to lodge a cassation appeal as in his view there were no grounds for it.", "Civil proceedings against the applicant", "29. According to the applicant, in 2015 the museum had also brought a civil claim against him, seeking compensation for defamation.", "30. The applicant further submitted that a civil court, which was bound by the findings of the criminal court in the proceedings against him, partly allowed that claim and ordered the applicant to pay approximately PLN 9,000 (EUR 2,250) in compensation and court fees." ]

[ "RELEVANT LEGAL FRAMEWORK", "31. Article 212 of the 1997 Criminal Code provides as follows:", "“1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality such behaviour or characteristics as may lower the standing of such a person, group or entity in the public’s opinion or undermine public confidence in their necessary capacity [to undertake] a certain position, occupation or type of activity shall be liable to a fine, restriction on their liberty or imprisonment [for a term] not exceeding one year.", "2. If the perpetrator commits the act described in paragraph 1 through the means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment [for a term] not exceeding two years.", "3. When imposing sentence for an offence specified in paragraphs 1 or 2, a court may award a supplementary payment to the injured person or the Polish Red Cross or for another social purpose designated by the injured person ( nawiązka ).", "4. The prosecution of an offence specified in paragraphs 1 or 2 may occur upon a private charge [being brought].”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "32. The applicant complained under Article 10 of the Convention that his criminal conviction constituted a disproportionate and unjustified sanction because criticising the professional activities of someone such as the museum’s director, who was a public figure, had to be tolerated in a democratic society. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "AdmissibilitySubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The Government", "33. The Government raised the following preliminary objections.", "34. They argued that the application was incompatible with Article 10 of the Convention because, firstly, the applicant denied being the author of the impugned statements and secondly, the statements were false and had been aimed at damaging the reputation of the museum. In the Government’s view, the applicant had wanted to deflect Article 10 from its real purpose by using freedom of expression for private ends – namely, libelling and defaming persons with whom he had been in personal conflict. The applicant had therefore abused the protection afforded to freedom of expression contrary to Article 17 of the Convention. The application was thus incompatible ratione materiae within the meaning of Article 35 § 3 (a) of the Convention.", "35. Relying on the same two arguments as those detailed above, the Government also argued that the application should be declared inadmissible for abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. They stressed that by signing the letters as the staff of the museum, the applicant had tried to mislead the domestic courts and had put third parties at risk by falsely implying that they had been responsible for the impugned content.", "(b) The applicant", "36. The applicant submitted that, despite denying being the author of the letters in question, he enjoyed the protection of Article 10 of the Convention because a domestic court had convicted him of libel, having considered him to be the author. Article 10 was therefore applicable in the present case.", "37. Moreover, the application should not be declared inadmissible for abuse of the right of individual application. The mere fact that the applicant disagreed with certain versions of facts of the case, as presented by the domestic court or by the Government, did not mean that he had tried to mislead the Court.", "The Court’s assessment", "(a) As to the objection alleging incompatibility with Article 10 on the basis of the fact that the applicant denies having voiced the expressions for which he was convicted", "38. The Court has already held, in some specific situations, that the applicants who deny imparting any ideas or information within the meaning of Article 10 of the Convention, may nevertheless enjoy the protection of that provision.", "39. To that end, in the case of Müdür Duman v. Turkey – in which the applicant was convicted of a serious offence of praising and condoning an act punishable by law on the basis of material found in the office of his political party – the Court observed that not accepting that the applicant’s criminal conviction constituted an interference, on the grounds that he had denied any involvement in the actions at issue, would be tantamount to requiring the applicant to acknowledge the acts of which he had stood accused and would lock him in a vicious circle that would deprive him of the protection of the Convention (see Müdür Duman v. Turkey, no. 15450/03, § 30, 6 October 2015). In addition, requiring that the applicant acknowledges the acts for which he stood accused would run counter to the right not to incriminate oneself, which is part of international fair trial standards, although not expressly mentioned in Article 6 of the Convention (ibid.).", "40. In the similar vein, in the case of Stojanović v. Croatia, in which the applicant – while not denying having given an interview – argued that he had never used the particular words giving rise to his civil defamation case, the Court observed that in attributing the impugned statements to the applicant and ordering him to pay damages in respect of those statements, the domestic courts had indirectly stifled the exercise of his freedom of expression. The Court held that Article 10 of the Convention was applicable because, if the applicant’s argument proved to be correct, the damages he had been ordered to pay would have been likely to discourage him from making criticisms of that kind in future (see Stojanović v. Croatia, no. 23160/09, § 39, 19 September 2013).", "41. The Court observes that, in the present case, the applicant’s criminal conviction for defamation was indisputably directed at activities falling within the scope of freedom of expression, as noted above, and that the applicant was sanctioned for engaging in such activities, despite his denial of the authorship of the letters in question. The Court considers that in such circumstances, the applicant’s conviction must, similarly to the above ‑ mentioned cases of Müdür Duman and Stojanović, be regarded as constituting an interference with his exercise of his right to freedom of expression.", "(b) As to the objection that the applicant had abused the protection of freedom of expression contrary to Article 17 of the Convention", "42. The Court will now examine the Government’s objection that the views expressed by the applicant ran counter to the text and spirit of the Convention and that he therefore could not, under Article 17 of the Convention, rely on Article 10 as regards his impugned statements.", "43. The Court has found that any “remark directed against the Convention’s underlying values” is removed from the protection of Article 10 by Article 17 (see M’Bala M’Bala v. France (dec.), no. 25239/13, § 33, ECHR 2015 (extracts)). Article 17 is only applicable on an exceptional basis and in extreme cases and should, in cases concerning Article 10 of the Convention, only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention (see Perinçek v. Switzerland [GC], no. 27510/08, § 114, ECHR 2015 (extracts)). The decisive point when assessing whether statements are removed from the protection of Article 10 by Article 17, is whether those statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, or whether by making the statement, the author attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it ( Pastörs v. Germany, no. 55225/14, § 37, 3 October 2019).", "44. In the case at hand the applicant was convicted of making allegations about the mismanagement of public funds, labour law infringements, and various flaws in the organisation of a public museum (of which the applicant was an employee) and its director. Although the manner in which the applicant acted may be considered objectionable in light of the Court’s case-law as referred to above, the content of the impugned remarks does not justify the application of Article 17 of the Convention.", "45. In view of the above, the Court finds that the applicant cannot be deprived of the protection of Article 10 of the Convention by Article 17 of the Convention.", "(c) As to the objection that the applicant had abused of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention", "46. It remains for the Court to examine the Government’s objection that the applicant had abused the right of individual application because, by denying being the author of the letters and by making false statements about the museum, he had tried to mislead the domestic courts and this Court.", "47. The Court reiterates that an application may be rejected as abusive if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014 with further references, and Pytel v. Poland, no. 9257/11, § 19, 30 August 2016 with further references). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross, cited above, § 28; Bestry v. Poland (dec.), no. 57675/10, 3 November 2015; and Hüttner v. Germany (dec.), no. 23130/04, 19 June 2006). In principle, any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it can be considered as an abuse of the right of application (see Chim and Przywieczerski v. Poland, no. 36661/07, § 189, 12 April 2018, and Miroļubovs and Others v. Latvia, no. 798/05, § 65, 15 September 2009). The applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross, cited above, § 28, with further references).", "48. In the present case the applicant, while making his Article 10 complaint, denied that he was the author of written statements for which he had been convicted by the domestic court. That, in fact, was his line of defence before the criminal court.", "49. In the light of its considerations in the case of Müdür Duman (cited above, see paragraph 39 above), the Court finds that the fact that the domestic court ultimately found, on the basis of evidence, that the applicant was in fact the author of the statements in question does not preclude the applicant from reiterating his original position before this Court. In any event, for reasons which the Court has already stated in paragraph 41 above, the core issue in the present case is not whether the domestic court had erred in finding the applicant responsible for the impugned statements but, rather, whether, assuming that he was the author, the imposition of a criminal sanction on him for the offence of defamation was justified under paragraph 2 of Article 10 of the Convention.", "50. The Court concludes from the above that there is no basis for finding that the applicant submitted untrue information concerning the very core of the case with the intention of misleading the Court and thereby abused his right of individual petition.", "51. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "52. The applicant argued that the interference in his case had been unlawful in that Article 212 of the Criminal Code, which had been the basis of his conviction for libel, had reversed the burden of proof, placing it on the defendant. It thus required the applicant to prove that the person who had written the impugned letters had done so legitimately because his or her accusations were true. The applicant, not being the author of the statements in question, had had no knowledge about their alleged false character.", "53. Moreover, the applicant submitted that his application ought to be examined within the context of a whistle-blower’s freedom to impart information. The interference in his case had thus been unjustified and disproportionate within the meaning of paragraph 2 of Article 10 of the Convention. To that end the applicant made the following observations.", "54. The author of the letters in question had not acted out of any personal motivation or gain but in the public interest – namely, in order to ensure the lawful and rational management of public funds, a respectful work environment and the preservation of the national heritage. In the case of the museum, those interests had, in the author’s view, been threatened by corruption, work harassment, the embezzlement of public funds and the mishandling of exhibits.", "55. The author of the letters had denounced the shortcomings that, as to his or her best knowledge, had taken place at the museum. In the absence of legislation concerning whistle-blowers at the material time, the person in question had not had any alternative channels of bringing his or her suspicions to the attention of the authorities concerned. In the applicant’s opinion, it would have been pointless to bring the issue to the attention of the museum’s director as the allegations had been made against that very person.", "56. Furthermore, the applicant claimed that the author of the letters had had reasonable grounds for fearing that the evidence would have been concealed or destroyed if he or she had first reported the issue to the museum’s management. In the present case, therefore, it had clearly been impracticable for the person making the impugned statements to inform his or her superiors of the suspicions. Still, the author had chosen not to inform the public but had rather reported the alleged wrongdoings to the appropriate bodies that had had authority to examine the case.", "57. The applicant also submitted that it would have been unreasonable to expect that citizens, who otherwise were under a statutory duty to denounce wrongful acts to prosecutors under Article 304 of the Code of Criminal Procedure, should only report situations which they were absolutely sure of and for which they had evidence. After all, it was up to the police or other public authorities to investigate the matters brought to their attention. One should therefore not be prosecuted for denouncing a wrongful act in good faith. Such approach would have a chilling effect on the colleagues of such a whistle-blower.", "58. The applicant also argued that, in any event, in the light of the results of the audit that had been carried out at the museum, the statements made in the impugned letters might well have been considered true.", "59. The applicant furthermore submitted that the domestic court had committed an error of fact as the applicant had not been the author of the letters. The domestic courts had also failed to examine the applicant’s case from the perspective of the protection of a whistle-blower. They had also disregarded several important elements of the case, namely: the fact that (i) the impugned statements had been made in sealed anonymous letters, the content of which had never been made public; and (ii) the statements concerned a public institution and its director, thus, a public official who did not enjoy the same degree of protection of his private life or of his reputation as would a private person.", "60. On that latter point, the applicant submitted that the museum, as a legal person and a public entity, could not rely on the considerations of the right to respect for private life guaranteed by Article 8 of the Convention. That right was, after all, inherently attributable to victims who were private and physical persons. It followed that, in the applicant’s opinion, the present application was not about the balancing of two rights that were equally protected by the Convention.", "61. Lastly, the applicant argued that the sanction that had been imposed on him had been completely disproportionate, bearing in mind the fact that he had also been dismissed from work and ordered to compensate the museum in civil proceedings (see paragraphs 22, 29 and 30 above). The applicant also stressed that his conviction had deprived him of the possibility to work in his chosen profession elsewhere.", "(b) The Government", "62. The Government argued that the interference in question had been justified under paragraph 2 of Article 10 of the Convention.", "63. In particular, the applicant’s statements had been anonymous and untrue, and, as such, they could therefore not have gained the protection guaranteed to a whistle-blower. Moreover, the applicant had not wished to protect any common good; rather, he had acted with the sole aim of hurting his employer’s reputation. The allegations that he had made had attained the requisite level of seriousness and could well have infringed on P.Ś.’ Article 8 rights.", "64. The national authorities had therefore struck a fair balance between two equally important Convention rights: that of the applicant’s freedom of expression, as guaranteed by Article 10 of the Convention; and that of protecting the reputation of the museum and its director, as recognised by Article 8 of the Convention. The domestic courts, in adjudicating the applicant’s case, had thoroughly analysed the above-mentioned conflict of interests, against the facts of the case. Those facts had been established on the basis of reliable and exhaustive evidence.", "65. The sanction imposed on the applicant at the conclusion of the impugned criminal proceedings had been proportionate to the nature and the severity of his prohibited conduct and its consequences. On the other hand, in determining the level of the fine, the domestic courts had well taken into consideration the applicant’s financial situation.", "The Court’s assessment", "(a) General principles", "66. The general principles regarding an assessment of whether an interference with the exercise of the right to freedom of expression was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well-settled in the Court’s case-law. They were restated in Pentikäinen v. Finland ([GC], no.11882/10, § 87, ECHR 2015), Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016) and summarised in Perinçek (cited above, § 196).", "67. In addition, it is to be reiterated that the Court must ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.", "68. The relevant criteria that the Court relies on to balance the right to freedom of expression against the right to respect for private life were recapitulated in Perinçek, cited above, § 198).", "69. In particular, the Court reiterates that reputation is protected by Article 8 of the Convention as part of the right to respect for private life (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 104-107, ECHR 2012; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 90-93, ECHR 2015 (extracts); and Perinçek, cited above, § 198). In order to fulfil its positive obligation to safeguard one person’s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Bédat, cited above, § 74).", "70. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court has held that the outcome of the application in question should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the statements in question, or under Article 10 by the statements’ author. These rights deserve equal respect. Accordingly, the margin of appreciation should in principle be the same in both situations (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 163, 27 June 2017). Moreover, in such cases the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover, cited above, § 107).", "71. When it comes to the protection of the reputation of others, the Court has made a distinction between defamation of natural and legal persons. The Court has nevertheless left open the question of whether the “private life” aspect of Article 8 protects the reputation of a company (see Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v. Germany (dec.), no. 32783/08, § 23, 2 September 2014). On the other hand, within the context of Article 10 the Court has considered that the protection of a university’s authority was a mere institutional interest, which did not necessarily have the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention (see Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). On another occasion, the Court has acknowledged that a company has a right to defend itself against defamatory allegations, and that a general interest exists in protecting companies’ commercial viability and the wider economic good by limiting the damage caused by allegations which risked harming a company’s reputation (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). In spite of that, the Court still sees a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions vis-à-vis a person’s dignity, for the Court, interests in respect of commercial reputation are devoid of that moral dimension ( ibid. ).", "72. As the Court has affirmed with regards to the need to perform a balancing exercise between the right to reputation of a public institution with executive powers and freedom of expression, limits of permissible criticism are wider with regard to a public authority than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of a body vested with executive powers must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion (see, mutatis mutandis, Şener v. Turkey, no. 26680/95, § 40, 18 July 2000; Lombardo and Others v. Malta, no. 7333/06, § 54, 24 April 2007; and Margulev v. Russia, no. 15449/09, § 53, 8 October 2019).", "73. The Court has also distinguished between assertions of facts and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. At the same time, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments (see, mutatis mutandis, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI).", "74. In case of assertion of facts, relying on the presumption of falsity and thus asking the author to demonstrate the truth of his or her assertions, as required under the applicable criminal provisions, does not necessarily contravene the Convention (see, mutatis mutandis, Kasabova v. Bulgaria, no. 22385/03, §§ 58-60, 19 April 2011; Rumyana Ivanova v. Bulgaria, no. 36207/03, §§ 39 and 68, 14 February 2008; Makarenko v. Russia, no. 5962/03, § 156, 22 December 2009; and Rukaj v. Greece (dec.), no. 179/08, 21 January 2010). However, an applicant clearly involved in a public debate on an important issue is required to meet a no more demanding standard than that of due diligence, as in such circumstances an obligation to prove the factual statements may deprive him or her of the protection afforded by Article 10 (see, mutatis mutandis, Monica Macovei v. Romania, no. 53028/14, § 75, 28 July 2020, with further references). At the same time, where an utterance amounts to a value judgment, the proportionality of the interference may depend on whether or not there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it. The more serious such an allegation is, the more solid the factual basis has to be (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I, and Lewandowska-Malec v. Poland, no. 39660/07, §§ 63 and 65, 18 September 2012).", "(b) Application of these principles to the case", "(i) Whether there was an interference", "75. As the Court has already stated above, the applicant’s criminal conviction for libel constituted an interference with his exercise of his right to freedom of expression (see paragraph 41 above).", "(ii) Whether the interference was justified", "76. The impugned interference was “prescribed by law”, as required by Article 10 of the Convention – namely by Article 212 of the Criminal Code (see Dorota Kania v. Poland (no. 2), no. 44436/13, § 70, 4 October 2016). The applicant’s submission concerning the reversed burden of proof under that provision will be addressed by the Court further below, as it is a matter pertaining to the test of “necessity in a democratic society” (see Kasabova, cited above, §§ 58-62).", "77. The Court furthermore accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name of the museum, as well as its director and other members of the management – within the meaning of Article 10 § 2 of the Convention (see, Dorota Kania (no. 2), cited above, § 70). It notes that the interference further pursued the aim of ensuring the proper functioning of public institutions.", "78. Thus, the only point at issue is whether the interference was “necessary in a democratic society” in order to achieve that aim.", "(iii) “Necessary in a democratic society”", "79. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention.", "(α) As to the denial of authorship", "80. The Court notes at the outset that the applicant denied being the author of the written statements which were attributed to him by the domestic authorities and which are at the core of the present application (see paragraphs 7 and 33 above).", "81. In the light of the material at hand, the Court cannot, however, consider that the domestic court has made a flagrant error of judgment on that point. The question of whether the applicant was the author of the letters in question was duly addressed by the trial courts of two levels of jurisdiction; moreover ample evidence, comprising (i) two reports by an expert in the forensic examination of documents and (ii) the testimony of several witnesses – was adduced (see paragraphs 20-22 above).", "82. The Court will thus proceed on the fair assumption that the applicant was indeed the author of the impugned statements signed: “Staff of the Museum of Hunting and Equestrianism” (see paragraph 6 above).", "(β) As to the relevance of the Court’s case-law in respect of the protection of whistle-blowers", "83. The Court should next consider whether the applicant’s reporting could be qualified, as argued by him, as whistle-blowing, within the meaning of its case-law. In this connection, the Court observes at the outset that the statements in question (see paragraphs 8-10 above) may be described as allegations about the embezzlement of public funds, corruption, labour law infringements, shortcomings in the organisation of the workplace, and the mishandling of exhibits. With the caveat that the full text of the impugned letters has not been communicated to the Court by the parties or reproduced by the domestic courts in wording of the relevant judgments, it appears that the allegations described above were of a general nature. Likewise, it is unknown whether the letters contained any specific request for an investigation into or verification of the allegations.", "84. In the Court’s view, the general character of the impugned statements and the fact that they were strongly charged with the applicant’s value judgment, undermines, any seriousness of the irregularities that were being denounced in relation to the management and work conditions in the museum, the use of public funds and the preservation of national heritage (contrast, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 92, 27 June 2017; Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999‑I; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 72, ECHR 2011; and Boldea v. Romania, no. 19997/02, § 57, 15 February 2007).", "85. The applicant, who was a civil servant, did not have any privileged or exclusive access to, or direct knowledge, of the information contained in the letters (see, by contrast, Aurelian Oprea v. Romania, no. 12138/08, § 59, 19 January 2016). In fact, before the domestic court, the applicant specifically stated that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees (see paragraph 22 in fine, above).", "86. Thus, with regard to the circumstances of the case, it does not seem that the applicant had secrecy or discretion duties with respect of his service and therefore his case cannot be equated to any case of public disclosure of in-house information in the public interest. Unlike as in the cases of whistle ‑ blowing, the applicant was not in the position of being the only person, or part of a small category of persons, aware of what was happening at work and thus best placed to act in the public interest by alerting the employer or the public at large ( a contrario, Guja v. Moldova, no. 14277/04, §§ 70-72, 12 February 2008).", "87. It is also unclear whether the applicant has suffered any repercussions at his workplace as a consequence of the reporting of the alleged wrongdoing attributed to him. As it would appear, the applicant’s employment contract was terminated in circumstances which are not directly linked to the libel incident in question (see paragraph 22 above; and contrast, Guja, cited above, § 21).", "88. In view of these above-mentioned factors, the Court does not find that the letters in question can be deemed to constitute whistle-blowing, as defined by the Court’s case-law (see Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013).", "(γ) As to the third parties affected", "89. The Court observes that the allegations in question were, in part, personally directed at P.Ś., the museum’s director. The letters were not phrased in any insulting or obscene language (see paragraphs 9 and 10 above; see, by contrast, Skałka v. Poland, no. 43425/98, § 36, 27 May 2003), but, in the Court’s view, they clearly affected the director, other members of the management, as well as the institution which they ran.", "90. On the basis of the contextual examination of the extracts of the disputed letters (see paragraphs 5, 7 and 22 above), the Court finds that the thrust of the impugned statements was, in equal measure, to (i) accuse P.Ś., in his capacity of the museum’s director, of conduct that appeared irregular or unlawful to the letters’ author, and to (ii) notify the competent State authorities thereof (see also, for the general principle governing the Court’s evaluation of statements, Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, §§ 25-26, 22 February 2007).", "91. In this latter context, the Court has indeed dealt with cases involving defamation that had a bearing on an individual’s professional activities (a doctor in Kanellopoulou v. Greece, no. 28504/05, 11 October 2007; the director of a State-subsidised company in Tănăsoaica v. Romania, no. 3490/03, 19 June 2012; and judges in Belpietro v. Italy, no. 43612/10, 24 September 2013).", "92. The present case, however, differs from the above-mentioned cases in that no legal action had been taken against the applicant by P.Ś. in a private capacity (see paragraphs 16, 24 and 29, above). On the other hand, the balancing of the Article 10 and Article 8 rights that was carried out by the domestic courts, was between, on the one hand, the applicant (as the author of the statements) and, on the other hand, the museum (as a public entity), P.Ś. and other members of its management (see paragraphs 24 and 25 above).", "93. Having regard to its case-law (see paragraph 72 above), the Court concludes that, given the circumstances of the case, the values conflicting with the applicant’s freedom of speech that the domestic court was called to balance were not of equal weight. The protection of the museum’s good name (being an institutional interest, as opposed to a private concern), should not have been considered as having the same degree of importance as the protection of P.Ś. and other members of the museum’s management which falls under the category of “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. Moreover, the limits of acceptable criticism of that institution’s management were wider than they would have been in relation to criticism of a private individual.", "(δ) As to the audience targeted by the impugned statements", "94. The Court accepts the applicant’s argument that, in view of the fact that the allegations had concerned the museum’s director, it would have been impracticable to report the issue to that person (see paragraph 57 above). The Court also observes that the information in question was not revealed to the public but reported in private letters to those bodies that had authority to verify and, if necessary, to remedy the situation complained of (see paragraphs 5 and 59 above; see also, mutatis mutandis, above-cited cases of Guja, §§ 73 and 81; and Medžlis Islamske Zajednice Brčko and Others, §§ 90, 91 and 95).", "95. In such cases the Court has considered that “the requirements of such protection have to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicant’s right to report irregularities in the conduct of State officials to a body competent to deal with such complaints” (see, mutatis mutandis, Zakharov v. Russia, no. 14881/03, § 23, 5 October 2006; Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008; Siryk v. Ukraine, no. 6428/07, § 42, 31 March 2011; and Marinova and Others v. Bulgaria, nos. 33502/07 and 2 others, § 89, 12 July 2016). The Court’s case-law confirms that it is one of the precepts of the rule of law that citizens should be able to notify competent State officials about the conduct of public servants which to them appears irregular or unlawful (see, mutatis mutandis, Zakharov, cited above, § 26; Kazakov, cited above, § 28; and Siryk, cited above, § 42).", "96. At the same time the Court notes that even a letter distributed within a small community, such as a public institution, can inevitably harm the reputation and professional image of the person concerned (see Peruzzi v. Italy, no. 39294/09, § 63, 30 June 2015). It cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks in the course of their duties (see Peruzzi, cited above, § 52; see also Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I, and Nikula v. Finland, no. 31611/96, § 48, ECHR 2002 ‑ II). By the same token, civil servants should also be protected against abusive denunciations.", "(ε) As to the consequences of the statements", "97. The Court does not lose from sight the fact that calumnious denunciations to the competent authorities may result in investigating measures and may have very serious detrimental effects for the persons concerned, causing unnecessary stress and anxiety. Moreover, calumnious denunciations mean that the competent investigating or audit authorities can use more limited resources for the purposes of investigating or auditing other irregularities in the functioning of public authorities.", "98. The Court has no doubt that the impugned statements caused damage to the good name of the museum and called into question the management capacities of its director (see paragraphs 9, 24 and 25 above). It also caused damage to the museum as such. The Court also notes that the preliminary criminal inquiry, which was at some point initiated and ultimately discontinued (see paragraph 14 in fine, above) had certainly an impact upon the museum’s director in that it had caused him anxiety and stress.", "99. As to the consequences of the above-mentioned accusations being passed on to the authorities, the Court notes that in 2008 a series of management and tax audits of the museum were carried out by various public institutions (see paragraphs 12 and 13 above). On the basis of the material at hand, the Court notes that at least some of these audits had in fact been triggered by the impugned letters. Moreover, as stated by the Government and not effectively rebutted by the applicant, as a consequence of the actions attributed to the applicant, the museum had received less funding (see paragraph 15 above).", "(στ) As to the nature of the statements", "100. Another important factor relevant for the balancing exercise in the present case, is the nature of the utterances. In the instant case, the domestic courts did not expressly determine to which category the statements attributed to the applicant belonged. They did consider, however, that they were untrue, that they had not been objectively confirmed, and that they had been, in fact, disseminated in full knowledge of their falsehood, with intent to harm the museum and its director (see paragraphs 25 in fine and 26 above). A similar argument was put forward by the Government (see paragraph 64 above).", "101. The Court notes that the author did not refer throughout the text of the impugned letters to specific dates, persons or incidents (see, mutatis mutandis, Kwiecień v. Poland, no. 51744/99, § 54, 9 January 2007). He described in a general way the managerial shortcomings and the larger context in which they had allegedly occurred (see paragraphs 8-10 above). In particular, the applicant accused P.Ś. of theft, bullying the staff and using public funds for organising exhibitions in the interest of private persons. At the same time, part of the statements was strongly charged with the author’s subjective feelings and emotions. It appears therefore that the impugned utterances are a mix of assertions of facts and value judgments (compare Kaperzyński v. Poland, no. 43206/07, § 64, 3 April 2012; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999 ‑ III; Gąsior v. Poland, no. 34472/07, § 42, 21 February 2012; Dybek v. Poland (dec.) no. 62279/16, § 27, 25 September 2018; and Zybertowicz v. Poland, no. 59138/10, § 46, 17 January 2017).", "102. The Court observes that the author of the impugned statements was a private individual and not a journalist, media or non-governmental organisation with a public watchdog function (contrast Bladet Tromsø and Stensaas, cited above, § 66, and Medžlis Islamske Zajednice Brčko and Others, cited above, § 109). As such, the author was not bound by the Article 10 “duties and responsibilities” – for example, the obligation to provide accurate and reliable information or to verify factual statements if such statements were being made – to the same extent as would have been required by the ethics of journalism (see Bladet Tromsø and Stensaas, cited above, §§ 65-66, and Błaja News Sp. z o. o. v. Poland, no. 59545/10, § 51, 26 November 2013). At the same time, instead of contacting the authorities overtly under his own name, the applicant decided to send anonymous poison-pen letters.", "103. The applicant explains that the intention behind sending the letter was to help fighting corruption and other offences. The Court notes in this context that the applicant’s allegations not only proved false, but the applicant failed to adduce a sufficient factual basis to support his assertions of facts and value judgments.", "(ζ) As to the nature and severity of the penalty", "104. Lastly, the Court reiterates that the nature and severity of the penalty imposed are also factors to be taken into consideration when assessing the proportionality of the interference (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Malisiewicz-Gąsior v. Poland, no. 43797/98, § 68, 6 April 2006). While the use of criminal-law sanctions in defamation cases is not in itself disproportionate, the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press or others who engage in public debate from taking part in a discussion of matters of legitimate public concern (see Lewandowska-Malec, cited above § 69, with further references).", "105. In the instant case the applicant was criminally convicted; a fine was imposed on him in an amount equivalent to EUR 625. He was also ordered to pay various costs amounting to EUR 400 (see paragraph 19 above). The Court observes that the criminal conviction must obviously have had negative consequences for the applicant’s career – especially given the fact that he was a civil servant seeking re-employment (see, mutatis mutandis, Heinisch v. Germany, no. 28274/08, § 91, 21 July 2011). Nevertheless, the Court finds that the cumulative effect of in the circumstances of the present case, the criminal conviction or the aggregate amount of the financial penalties could not be considered as having had a chilling effect on the exercise by the applicant of his freedom of expression (in contrast with Lewandowska-Malec, cited above, § 70). Consequently, the sanction imposed on the applicant does not appear disproportionate.", "(c) The Court’s overall conclusion", "106. In the light of the above considerations, the Court finds that in the case at hand, the domestic courts adduced sufficient and relevant reasons to justify the interference with the applicant’s freedom of expression.", "107. There has accordingly been no violation of Article 10 of the Convention." ]

[ "2. The applicant was born in 1967 and lives in Warsaw. He was granted legal aid and was represented by Ms A. Bzdyń, a lawyer practising in Warsaw.", "3. The Government were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background", "5. Between 1997 and 2008, the applicant, who is an art historian, was employed by the Museum of Hunting and Equestrianism ( Muzeum Łowiectwa i Jeździectwa ) (“the museum”). In the last four years of his employment, he worked as the manager of the nature and hunting department.", "The applicant’s alleged actions in respect of the museum", "6. On 28 November 2007 and on 10 March 2008 letters, signed: “Staff of the Museum of Hunting and Equestrianism”, were sent to the Tax Office ( Izba Skarbowa ), Supreme Audit Office ( Najwyższa Izba Kontroli ), Regional Prosecutor ( Prokuratura Okręgowa ), and the President’s Office ( Kancelaria Prezydenta ).", "7. The applicant denied being the author of the above-mentioned letters.", "8. The letters contained allegations about the mismanagement of public funds, labour law infringements, flaws in the organisation of the workplace and accounting, the hiring of staff through the back door ( po znajomości ) and irregularities in awarding financial bonuses. It was also stated in the letters that the museum’s director, P.Ś., was incompetent, lacked adequate knowledge and organisational skills, and that he had entered into unprofitable tender contracts, had used the museum’s funds for private purposes, had resorted to bullying, and had acted in his own private interest.", "9. As established by the domestic courts in the proceedings described below, the letters contained the following statements.", "“[D]uring renovation works, exhibits sustain damage – they are constantly moved [and] stored in unsuitable places, but Ś. [P.Ś.’s full last name] is not interested in this – he is interested in how to steal more money” ( w czasie remontów niszczą się eksponaty, ciagle przenoszone, przechowywane w miejscach do tego nie przystosowaych, ale to Ś. nie interesuje, on jest zainteresowany, aby jak najwięcej ukraść pieniędzy ).", "“[He] clearly cannot organise work at the museum. He resorts to bullying and improvised decision-making ( rażąco nie umie organizować pracy w muzeum. Stosuje mobbing i ręczne sterowanie ).”", "“[He] uses words [which are] commonly considered offensive ..., [and] is driven only by his own self-interest and gain. He does not have any capacity to make decisions, does not know how to make a decision, [and] messes up the organisation of work at the museum ( Używa słów powszechnie uznanych za obraźliwe ... kieruje się jedynie własnym dobrem i korzyścią. Nie ma żadnych predyspozycji do podejmowania decyzji, nie umie podjąć decyzji, dezorganizuje pracę w muzeum.) ”", "“Ś. [P.Ś.’s full last name] organises, using public funds, exhibitions for private individuals ( Ś... robi za publiczne pieniądze wystawy osobom prywatnym ).”", "10. The letters also contained the following statement below about P.Ś.", "“[P.Ś] has a persecution complex. He follows and eavesdrops on employees. He uses telephones [and] the Internet to monitor employees, and now cameras are to be installed ... Ś. taps employees’ telephones. ( Ma manię prześladowczą. Śledzi i podsłuchuje pracowników. Do monitoringu pracowników wykorzystuje telefony, internet, i obecnie mają być montowane kamery ... Ś. podsłuchuje telefony pracowników ).”", "11. P.Ś. had not been a party to the impugned criminal proceedings (described below). Moreover, he had also never instituted any civil action against the applicant.", "The museum’s audits", "12. In 2008 a series of management and tax audits were carried out by various public institutions at the museum.", "13. The domestic courts established that at least one audit – that undertaken by the Supreme Audit Office – had been carried out of its own initiative. They further established that the audit undertaken by the Ministry of Culture had been carried out in relation to the applicant’s letters.", "14. The contents of the post-audit reports are unknown to the Court.", "The applicant submitted that the Supreme Audit Office had confirmed that the storage and the public display of the museum’s artefacts had been marked by irregularities. The domestic court established (during the criminal proceedings described below) that the said audits had not revealed any shortcomings in the running of the museum. The preliminary criminal inquiry that had been opened following the audits, had ultimately been discontinued.", "15. The domestic court also established that the audits had temporarily disturbed the work of the museum. Moreover, in 2008 the museum had received 50% less funding from public sources than in the previous years. The applicant contested that finding in his appeal to the domestic court (see paragraph 27 below).", "Criminal proceedings against the applicant", "16. On 25 September 2008 the museum filed a private bill of indictment against the applicant, accusing him of disseminating, between 21 December 2007 and 16 July 2008, untrue information about the activities of the museum’s management.", "17. The case was registered with the Warsaw District Court, which held ten hearings.", "18. On 26 July 2012 the Warsaw District Court convicted the applicant of libel of the museum and its management on account of the applicant’s sending four anonymous letters – on 28 November 2007, to the Tax Office, the Supreme Audit Office, and the Regional Prosecutor and, on 10 March 2008, to the President of Poland’s Office – that contained defamatory statements, and by doing so, putting the museum at risk of losing the public trust necessary for its social, cultural and educational activities.", "19. The court imposed on the applicant a fine ( grzywna ) in the amount of 2,500 Polish zlotys (PLN – approximately 625 euros (EUR)). The applicant was also ordered to bear various costs of the proceedings in the total amount of PLN 1,596 (approximately EUR 400).", "20. The Warsaw District Court considered it established that the envelopes that had contained the impugned letters bore handwriting which, without any doubt, was that of the applicant.", "21. The Warsaw District Court based its findings of fact, as described above, on the testimony of five witnesses, including the museum’s director; two reports issued by a court-appointed expert in the forensic examination of documents; a copy of the Warsaw District Prosecutor’s decision declining to open a criminal investigation; the post-audit report of the Supreme Audit Office; a copy of the Warsaw District Court’s judgment of 3 November 2009 delivered in the applicant’s related case no. IV W 325/09; a psychiatric report; letters from the President’s Office, the Tax Office, and Minister of Culture and Science (original typed letters which had been sent to the above-mentioned relevant institutions, together with hand-addressed envelopes); various reports concerning the museum; and the post-audit report of the Ministry of Culture, and various other pieces of evidence.", "22. Before the Warsaw District Court the applicant stated that he had not written or sent the impugned letters. He also argued that the case had been mounted against him in revenge for his unbiased work as a court-appointed expert in a certain high-profile case concerning another museum. The applicant stated that P.Ś. had attempted to pressure him into drafting a report which would be favourable to the director of that museum, who was P.Ś.’s friend. When the applicant refused, attempts were made to have him discredited: the applicant was accused of stealing an exhibit and of libelling the museum and, ultimately, his employment contract was terminated with three months’ notice. The applicant recalled instances when, in his opinion, P.Ś. had placed himself in a situation in which he had faced a conflict of interests or had disregarded the applicant’s warning that exhibits had been inappropriately handled. On the other hand, he said that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees.", "23. The court, which heard P.Ś. and other witnesses in respect of the above allegations made by the applicant, found that the museum’s director had not been biased against the applicant.", "24. Furthermore, the Warsaw District Court found that the impugned libel did not concern P.Ś., as a private person, but rather the museum, as an institution, and its management. For the court, denunciations of a wrongful conduct should rely on facts and not only on bare value judgments of the person making such denunciations. Defamation could take the form of the accusation of a specific factual conduct or of the voicing of a general opinion about the actions or the features of an injured party.", "25. On the facts, the Warsaw District Court found that the applicant’s statements contained untrue allegations which had shed a bad light on the museum and its director. Irrespective of whether the applicant’s statements had resulted in the audits or had had any other negative consequences for the museum, they had clearly put the museum at risk of losing its good reputation. The applicant had not acted in good faith – that is to say, in defence of the museum’s interests. He had acted with direct intent to damage the reputation of the museum and its management by making allegations which had not been objectively confirmed. Having worked long years at the museum, the applicant had been perfectly aware of the untrue nature of his statements.", "26. As for the fine, the Warsaw District Court observed that it was proportionate, on the one hand, to the harm caused by the applicant’s actions and, on the other hand, to the applicant’s income. To that end, the court established that the applicant made PLN 3,000 per month and had no dependent persons.", "27. The applicant appealed, arguing that the first-instance court had erred in finding him to be the author of the letters in question and that, by convicting him, it had “violated his human rights”. On 25 January 2013 the Warsaw Regional Court ( Sąd Okręgowy ) upheld that judgment. The judgment was served on the applicant’s lawyer on 20 April 2013.", "28. On an unspecified date, the Prosecutor General declined to grant the applicant’s request and to lodge a cassation appeal as in his view there were no grounds for it.", "Civil proceedings against the applicant", "29. According to the applicant, in 2015 the museum had also brought a civil claim against him, seeking compensation for defamation.", "30. The applicant further submitted that a civil court, which was bound by the findings of the criminal court in the proceedings against him, partly allowed that claim and ordered the applicant to pay approximately PLN 9,000 (EUR 2,250) in compensation and court fees." ]

[ "RELEVANT LEGAL FRAMEWORK", "31. Article 212 of the 1997 Criminal Code provides as follows:", "“1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality such behaviour or characteristics as may lower the standing of such a person, group or entity in the public’s opinion or undermine public confidence in their necessary capacity [to undertake] a certain position, occupation or type of activity shall be liable to a fine, restriction on their liberty or imprisonment [for a term] not exceeding one year.", "2. If the perpetrator commits the act described in paragraph 1 through the means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment [for a term] not exceeding two years.", "3. When imposing sentence for an offence specified in paragraphs 1 or 2, a court may award a supplementary payment to the injured person or the Polish Red Cross or for another social purpose designated by the injured person ( nawiązka ).", "4. The prosecution of an offence specified in paragraphs 1 or 2 may occur upon a private charge [being brought].”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "32. The applicant complained under Article 10 of the Convention that his criminal conviction constituted a disproportionate and unjustified sanction because criticising the professional activities of someone such as the museum’s director, who was a public figure, had to be tolerated in a democratic society. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "AdmissibilitySubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The Government", "33. The Government raised the following preliminary objections.", "34. They argued that the application was incompatible with Article 10 of the Convention because, firstly, the applicant denied being the author of the impugned statements and secondly, the statements were false and had been aimed at damaging the reputation of the museum. In the Government’s view, the applicant had wanted to deflect Article 10 from its real purpose by using freedom of expression for private ends – namely, libelling and defaming persons with whom he had been in personal conflict. The applicant had therefore abused the protection afforded to freedom of expression contrary to Article 17 of the Convention. The application was thus incompatible ratione materiae within the meaning of Article 35 § 3 (a) of the Convention.", "35. Relying on the same two arguments as those detailed above, the Government also argued that the application should be declared inadmissible for abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. They stressed that by signing the letters as the staff of the museum, the applicant had tried to mislead the domestic courts and had put third parties at risk by falsely implying that they had been responsible for the impugned content.", "(b) The applicant", "36. The applicant submitted that, despite denying being the author of the letters in question, he enjoyed the protection of Article 10 of the Convention because a domestic court had convicted him of libel, having considered him to be the author. Article 10 was therefore applicable in the present case.", "37. Moreover, the application should not be declared inadmissible for abuse of the right of individual application. The mere fact that the applicant disagreed with certain versions of facts of the case, as presented by the domestic court or by the Government, did not mean that he had tried to mislead the Court.", "The Court’s assessment", "(a) As to the objection alleging incompatibility with Article 10 on the basis of the fact that the applicant denies having voiced the expressions for which he was convicted", "38. The Court has already held, in some specific situations, that the applicants who deny imparting any ideas or information within the meaning of Article 10 of the Convention, may nevertheless enjoy the protection of that provision.", "39. To that end, in the case of Müdür Duman v. Turkey – in which the applicant was convicted of a serious offence of praising and condoning an act punishable by law on the basis of material found in the office of his political party – the Court observed that not accepting that the applicant’s criminal conviction constituted an interference, on the grounds that he had denied any involvement in the actions at issue, would be tantamount to requiring the applicant to acknowledge the acts of which he had stood accused and would lock him in a vicious circle that would deprive him of the protection of the Convention (see Müdür Duman v. Turkey, no. 15450/03, § 30, 6 October 2015). In addition, requiring that the applicant acknowledges the acts for which he stood accused would run counter to the right not to incriminate oneself, which is part of international fair trial standards, although not expressly mentioned in Article 6 of the Convention (ibid.).", "40. In the similar vein, in the case of Stojanović v. Croatia, in which the applicant – while not denying having given an interview – argued that he had never used the particular words giving rise to his civil defamation case, the Court observed that in attributing the impugned statements to the applicant and ordering him to pay damages in respect of those statements, the domestic courts had indirectly stifled the exercise of his freedom of expression. The Court held that Article 10 of the Convention was applicable because, if the applicant’s argument proved to be correct, the damages he had been ordered to pay would have been likely to discourage him from making criticisms of that kind in future (see Stojanović v. Croatia, no. 23160/09, § 39, 19 September 2013).", "41. The Court observes that, in the present case, the applicant’s criminal conviction for defamation was indisputably directed at activities falling within the scope of freedom of expression, as noted above, and that the applicant was sanctioned for engaging in such activities, despite his denial of the authorship of the letters in question. The Court considers that in such circumstances, the applicant’s conviction must, similarly to the above ‑ mentioned cases of Müdür Duman and Stojanović, be regarded as constituting an interference with his exercise of his right to freedom of expression.", "(b) As to the objection that the applicant had abused the protection of freedom of expression contrary to Article 17 of the Convention", "42. The Court will now examine the Government’s objection that the views expressed by the applicant ran counter to the text and spirit of the Convention and that he therefore could not, under Article 17 of the Convention, rely on Article 10 as regards his impugned statements.", "43. The Court has found that any “remark directed against the Convention’s underlying values” is removed from the protection of Article 10 by Article 17 (see M’Bala M’Bala v. France (dec.), no. 25239/13, § 33, ECHR 2015 (extracts)). Article 17 is only applicable on an exceptional basis and in extreme cases and should, in cases concerning Article 10 of the Convention, only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention (see Perinçek v. Switzerland [GC], no. 27510/08, § 114, ECHR 2015 (extracts)). The decisive point when assessing whether statements are removed from the protection of Article 10 by Article 17, is whether those statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, or whether by making the statement, the author attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it ( Pastörs v. Germany, no. 55225/14, § 37, 3 October 2019).", "44. In the case at hand the applicant was convicted of making allegations about the mismanagement of public funds, labour law infringements, and various flaws in the organisation of a public museum (of which the applicant was an employee) and its director. Although the manner in which the applicant acted may be considered objectionable in light of the Court’s case-law as referred to above, the content of the impugned remarks does not justify the application of Article 17 of the Convention.", "45. In view of the above, the Court finds that the applicant cannot be deprived of the protection of Article 10 of the Convention by Article 17 of the Convention.", "(c) As to the objection that the applicant had abused of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention", "46. It remains for the Court to examine the Government’s objection that the applicant had abused the right of individual application because, by denying being the author of the letters and by making false statements about the museum, he had tried to mislead the domestic courts and this Court.", "47. The Court reiterates that an application may be rejected as abusive if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014 with further references, and Pytel v. Poland, no. 9257/11, § 19, 30 August 2016 with further references). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross, cited above, § 28; Bestry v. Poland (dec.), no. 57675/10, 3 November 2015; and Hüttner v. Germany (dec.), no. 23130/04, 19 June 2006). In principle, any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it can be considered as an abuse of the right of application (see Chim and Przywieczerski v. Poland, no. 36661/07, § 189, 12 April 2018, and Miroļubovs and Others v. Latvia, no. 798/05, § 65, 15 September 2009). The applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross, cited above, § 28, with further references).", "48. In the present case the applicant, while making his Article 10 complaint, denied that he was the author of written statements for which he had been convicted by the domestic court. That, in fact, was his line of defence before the criminal court.", "49. In the light of its considerations in the case of Müdür Duman (cited above, see paragraph 39 above), the Court finds that the fact that the domestic court ultimately found, on the basis of evidence, that the applicant was in fact the author of the statements in question does not preclude the applicant from reiterating his original position before this Court. In any event, for reasons which the Court has already stated in paragraph 41 above, the core issue in the present case is not whether the domestic court had erred in finding the applicant responsible for the impugned statements but, rather, whether, assuming that he was the author, the imposition of a criminal sanction on him for the offence of defamation was justified under paragraph 2 of Article 10 of the Convention.", "50. The Court concludes from the above that there is no basis for finding that the applicant submitted untrue information concerning the very core of the case with the intention of misleading the Court and thereby abused his right of individual petition.", "51. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "52. The applicant argued that the interference in his case had been unlawful in that Article 212 of the Criminal Code, which had been the basis of his conviction for libel, had reversed the burden of proof, placing it on the defendant. It thus required the applicant to prove that the person who had written the impugned letters had done so legitimately because his or her accusations were true. The applicant, not being the author of the statements in question, had had no knowledge about their alleged false character.", "53. Moreover, the applicant submitted that his application ought to be examined within the context of a whistle-blower’s freedom to impart information. The interference in his case had thus been unjustified and disproportionate within the meaning of paragraph 2 of Article 10 of the Convention. To that end the applicant made the following observations.", "54. The author of the letters in question had not acted out of any personal motivation or gain but in the public interest – namely, in order to ensure the lawful and rational management of public funds, a respectful work environment and the preservation of the national heritage. In the case of the museum, those interests had, in the author’s view, been threatened by corruption, work harassment, the embezzlement of public funds and the mishandling of exhibits.", "55. The author of the letters had denounced the shortcomings that, as to his or her best knowledge, had taken place at the museum. In the absence of legislation concerning whistle-blowers at the material time, the person in question had not had any alternative channels of bringing his or her suspicions to the attention of the authorities concerned. In the applicant’s opinion, it would have been pointless to bring the issue to the attention of the museum’s director as the allegations had been made against that very person.", "56. Furthermore, the applicant claimed that the author of the letters had had reasonable grounds for fearing that the evidence would have been concealed or destroyed if he or she had first reported the issue to the museum’s management. In the present case, therefore, it had clearly been impracticable for the person making the impugned statements to inform his or her superiors of the suspicions. Still, the author had chosen not to inform the public but had rather reported the alleged wrongdoings to the appropriate bodies that had had authority to examine the case.", "57. The applicant also submitted that it would have been unreasonable to expect that citizens, who otherwise were under a statutory duty to denounce wrongful acts to prosecutors under Article 304 of the Code of Criminal Procedure, should only report situations which they were absolutely sure of and for which they had evidence. After all, it was up to the police or other public authorities to investigate the matters brought to their attention. One should therefore not be prosecuted for denouncing a wrongful act in good faith. Such approach would have a chilling effect on the colleagues of such a whistle-blower.", "58. The applicant also argued that, in any event, in the light of the results of the audit that had been carried out at the museum, the statements made in the impugned letters might well have been considered true.", "59. The applicant furthermore submitted that the domestic court had committed an error of fact as the applicant had not been the author of the letters. The domestic courts had also failed to examine the applicant’s case from the perspective of the protection of a whistle-blower. They had also disregarded several important elements of the case, namely: the fact that (i) the impugned statements had been made in sealed anonymous letters, the content of which had never been made public; and (ii) the statements concerned a public institution and its director, thus, a public official who did not enjoy the same degree of protection of his private life or of his reputation as would a private person.", "60. On that latter point, the applicant submitted that the museum, as a legal person and a public entity, could not rely on the considerations of the right to respect for private life guaranteed by Article 8 of the Convention. That right was, after all, inherently attributable to victims who were private and physical persons. It followed that, in the applicant’s opinion, the present application was not about the balancing of two rights that were equally protected by the Convention.", "61. Lastly, the applicant argued that the sanction that had been imposed on him had been completely disproportionate, bearing in mind the fact that he had also been dismissed from work and ordered to compensate the museum in civil proceedings (see paragraphs 22, 29 and 30 above). The applicant also stressed that his conviction had deprived him of the possibility to work in his chosen profession elsewhere.", "(b) The Government", "62. The Government argued that the interference in question had been justified under paragraph 2 of Article 10 of the Convention.", "63. In particular, the applicant’s statements had been anonymous and untrue, and, as such, they could therefore not have gained the protection guaranteed to a whistle-blower. Moreover, the applicant had not wished to protect any common good; rather, he had acted with the sole aim of hurting his employer’s reputation. The allegations that he had made had attained the requisite level of seriousness and could well have infringed on P.Ś.’ Article 8 rights.", "64. The national authorities had therefore struck a fair balance between two equally important Convention rights: that of the applicant’s freedom of expression, as guaranteed by Article 10 of the Convention; and that of protecting the reputation of the museum and its director, as recognised by Article 8 of the Convention. The domestic courts, in adjudicating the applicant’s case, had thoroughly analysed the above-mentioned conflict of interests, against the facts of the case. Those facts had been established on the basis of reliable and exhaustive evidence.", "65. The sanction imposed on the applicant at the conclusion of the impugned criminal proceedings had been proportionate to the nature and the severity of his prohibited conduct and its consequences. On the other hand, in determining the level of the fine, the domestic courts had well taken into consideration the applicant’s financial situation.", "The Court’s assessment", "(a) General principles", "66. The general principles regarding an assessment of whether an interference with the exercise of the right to freedom of expression was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well-settled in the Court’s case-law. They were restated in Pentikäinen v. Finland ([GC], no.11882/10, § 87, ECHR 2015), Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016) and summarised in Perinçek (cited above, § 196).", "67. In addition, it is to be reiterated that the Court must ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.", "68. The relevant criteria that the Court relies on to balance the right to freedom of expression against the right to respect for private life were recapitulated in Perinçek, cited above, § 198).", "69. In particular, the Court reiterates that reputation is protected by Article 8 of the Convention as part of the right to respect for private life (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 104-107, ECHR 2012; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 90-93, ECHR 2015 (extracts); and Perinçek, cited above, § 198). In order to fulfil its positive obligation to safeguard one person’s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Bédat, cited above, § 74).", "70. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court has held that the outcome of the application in question should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the statements in question, or under Article 10 by the statements’ author. These rights deserve equal respect. Accordingly, the margin of appreciation should in principle be the same in both situations (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 163, 27 June 2017). Moreover, in such cases the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover, cited above, § 107).", "71. When it comes to the protection of the reputation of others, the Court has made a distinction between defamation of natural and legal persons. The Court has nevertheless left open the question of whether the “private life” aspect of Article 8 protects the reputation of a company (see Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v. Germany (dec.), no. 32783/08, § 23, 2 September 2014). On the other hand, within the context of Article 10 the Court has considered that the protection of a university’s authority was a mere institutional interest, which did not necessarily have the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention (see Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). On another occasion, the Court has acknowledged that a company has a right to defend itself against defamatory allegations, and that a general interest exists in protecting companies’ commercial viability and the wider economic good by limiting the damage caused by allegations which risked harming a company’s reputation (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). In spite of that, the Court still sees a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions vis-à-vis a person’s dignity, for the Court, interests in respect of commercial reputation are devoid of that moral dimension ( ibid. ).", "72. As the Court has affirmed with regards to the need to perform a balancing exercise between the right to reputation of a public institution with executive powers and freedom of expression, limits of permissible criticism are wider with regard to a public authority than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of a body vested with executive powers must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion (see, mutatis mutandis, Şener v. Turkey, no. 26680/95, § 40, 18 July 2000; Lombardo and Others v. Malta, no. 7333/06, § 54, 24 April 2007; and Margulev v. Russia, no. 15449/09, § 53, 8 October 2019).", "73. The Court has also distinguished between assertions of facts and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. At the same time, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments (see, mutatis mutandis, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI).", "74. In case of assertion of facts, relying on the presumption of falsity and thus asking the author to demonstrate the truth of his or her assertions, as required under the applicable criminal provisions, does not necessarily contravene the Convention (see, mutatis mutandis, Kasabova v. Bulgaria, no. 22385/03, §§ 58-60, 19 April 2011; Rumyana Ivanova v. Bulgaria, no. 36207/03, §§ 39 and 68, 14 February 2008; Makarenko v. Russia, no. 5962/03, § 156, 22 December 2009; and Rukaj v. Greece (dec.), no. 179/08, 21 January 2010). However, an applicant clearly involved in a public debate on an important issue is required to meet a no more demanding standard than that of due diligence, as in such circumstances an obligation to prove the factual statements may deprive him or her of the protection afforded by Article 10 (see, mutatis mutandis, Monica Macovei v. Romania, no. 53028/14, § 75, 28 July 2020, with further references). At the same time, where an utterance amounts to a value judgment, the proportionality of the interference may depend on whether or not there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it. The more serious such an allegation is, the more solid the factual basis has to be (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I, and Lewandowska-Malec v. Poland, no. 39660/07, §§ 63 and 65, 18 September 2012).", "(b) Application of these principles to the case", "(i) Whether there was an interference", "75. As the Court has already stated above, the applicant’s criminal conviction for libel constituted an interference with his exercise of his right to freedom of expression (see paragraph 41 above).", "(ii) Whether the interference was justified", "76. The impugned interference was “prescribed by law”, as required by Article 10 of the Convention – namely by Article 212 of the Criminal Code (see Dorota Kania v. Poland (no. 2), no. 44436/13, § 70, 4 October 2016). The applicant’s submission concerning the reversed burden of proof under that provision will be addressed by the Court further below, as it is a matter pertaining to the test of “necessity in a democratic society” (see Kasabova, cited above, §§ 58-62).", "77. The Court furthermore accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name of the museum, as well as its director and other members of the management – within the meaning of Article 10 § 2 of the Convention (see, Dorota Kania (no. 2), cited above, § 70). It notes that the interference further pursued the aim of ensuring the proper functioning of public institutions.", "78. Thus, the only point at issue is whether the interference was “necessary in a democratic society” in order to achieve that aim.", "(iii) “Necessary in a democratic society”", "79. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention.", "(α) As to the denial of authorship", "80. The Court notes at the outset that the applicant denied being the author of the written statements which were attributed to him by the domestic authorities and which are at the core of the present application (see paragraphs 7 and 33 above).", "81. In the light of the material at hand, the Court cannot, however, consider that the domestic court has made a flagrant error of judgment on that point. The question of whether the applicant was the author of the letters in question was duly addressed by the trial courts of two levels of jurisdiction; moreover ample evidence, comprising (i) two reports by an expert in the forensic examination of documents and (ii) the testimony of several witnesses – was adduced (see paragraphs 20-22 above).", "82. The Court will thus proceed on the fair assumption that the applicant was indeed the author of the impugned statements signed: “Staff of the Museum of Hunting and Equestrianism” (see paragraph 6 above).", "(β) As to the relevance of the Court’s case-law in respect of the protection of whistle-blowers", "83. The Court should next consider whether the applicant’s reporting could be qualified, as argued by him, as whistle-blowing, within the meaning of its case-law. In this connection, the Court observes at the outset that the statements in question (see paragraphs 8-10 above) may be described as allegations about the embezzlement of public funds, corruption, labour law infringements, shortcomings in the organisation of the workplace, and the mishandling of exhibits. With the caveat that the full text of the impugned letters has not been communicated to the Court by the parties or reproduced by the domestic courts in wording of the relevant judgments, it appears that the allegations described above were of a general nature. Likewise, it is unknown whether the letters contained any specific request for an investigation into or verification of the allegations.", "84. In the Court’s view, the general character of the impugned statements and the fact that they were strongly charged with the applicant’s value judgment, undermines, any seriousness of the irregularities that were being denounced in relation to the management and work conditions in the museum, the use of public funds and the preservation of national heritage (contrast, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 92, 27 June 2017; Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999‑I; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 72, ECHR 2011; and Boldea v. Romania, no. 19997/02, § 57, 15 February 2007).", "85. The applicant, who was a civil servant, did not have any privileged or exclusive access to, or direct knowledge, of the information contained in the letters (see, by contrast, Aurelian Oprea v. Romania, no. 12138/08, § 59, 19 January 2016). In fact, before the domestic court, the applicant specifically stated that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees (see paragraph 22 in fine, above).", "86. Thus, with regard to the circumstances of the case, it does not seem that the applicant had secrecy or discretion duties with respect of his service and therefore his case cannot be equated to any case of public disclosure of in-house information in the public interest. Unlike as in the cases of whistle ‑ blowing, the applicant was not in the position of being the only person, or part of a small category of persons, aware of what was happening at work and thus best placed to act in the public interest by alerting the employer or the public at large ( a contrario, Guja v. Moldova, no. 14277/04, §§ 70-72, 12 February 2008).", "87. It is also unclear whether the applicant has suffered any repercussions at his workplace as a consequence of the reporting of the alleged wrongdoing attributed to him. As it would appear, the applicant’s employment contract was terminated in circumstances which are not directly linked to the libel incident in question (see paragraph 22 above; and contrast, Guja, cited above, § 21).", "88. In view of these above-mentioned factors, the Court does not find that the letters in question can be deemed to constitute whistle-blowing, as defined by the Court’s case-law (see Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013).", "(γ) As to the third parties affected", "89. The Court observes that the allegations in question were, in part, personally directed at P.Ś., the museum’s director. The letters were not phrased in any insulting or obscene language (see paragraphs 9 and 10 above; see, by contrast, Skałka v. Poland, no. 43425/98, § 36, 27 May 2003), but, in the Court’s view, they clearly affected the director, other members of the management, as well as the institution which they ran.", "90. On the basis of the contextual examination of the extracts of the disputed letters (see paragraphs 5, 7 and 22 above), the Court finds that the thrust of the impugned statements was, in equal measure, to (i) accuse P.Ś., in his capacity of the museum’s director, of conduct that appeared irregular or unlawful to the letters’ author, and to (ii) notify the competent State authorities thereof (see also, for the general principle governing the Court’s evaluation of statements, Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, §§ 25-26, 22 February 2007).", "91. In this latter context, the Court has indeed dealt with cases involving defamation that had a bearing on an individual’s professional activities (a doctor in Kanellopoulou v. Greece, no. 28504/05, 11 October 2007; the director of a State-subsidised company in Tănăsoaica v. Romania, no. 3490/03, 19 June 2012; and judges in Belpietro v. Italy, no. 43612/10, 24 September 2013).", "92. The present case, however, differs from the above-mentioned cases in that no legal action had been taken against the applicant by P.Ś. in a private capacity (see paragraphs 16, 24 and 29, above). On the other hand, the balancing of the Article 10 and Article 8 rights that was carried out by the domestic courts, was between, on the one hand, the applicant (as the author of the statements) and, on the other hand, the museum (as a public entity), P.Ś. and other members of its management (see paragraphs 24 and 25 above).", "93. Having regard to its case-law (see paragraph 72 above), the Court concludes that, given the circumstances of the case, the values conflicting with the applicant’s freedom of speech that the domestic court was called to balance were not of equal weight. The protection of the museum’s good name (being an institutional interest, as opposed to a private concern), should not have been considered as having the same degree of importance as the protection of P.Ś. and other members of the museum’s management which falls under the category of “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. Moreover, the limits of acceptable criticism of that institution’s management were wider than they would have been in relation to criticism of a private individual.", "(δ) As to the audience targeted by the impugned statements", "94. The Court accepts the applicant’s argument that, in view of the fact that the allegations had concerned the museum’s director, it would have been impracticable to report the issue to that person (see paragraph 57 above). The Court also observes that the information in question was not revealed to the public but reported in private letters to those bodies that had authority to verify and, if necessary, to remedy the situation complained of (see paragraphs 5 and 59 above; see also, mutatis mutandis, above-cited cases of Guja, §§ 73 and 81; and Medžlis Islamske Zajednice Brčko and Others, §§ 90, 91 and 95).", "95. In such cases the Court has considered that “the requirements of such protection have to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicant’s right to report irregularities in the conduct of State officials to a body competent to deal with such complaints” (see, mutatis mutandis, Zakharov v. Russia, no. 14881/03, § 23, 5 October 2006; Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008; Siryk v. Ukraine, no. 6428/07, § 42, 31 March 2011; and Marinova and Others v. Bulgaria, nos. 33502/07 and 2 others, § 89, 12 July 2016). The Court’s case-law confirms that it is one of the precepts of the rule of law that citizens should be able to notify competent State officials about the conduct of public servants which to them appears irregular or unlawful (see, mutatis mutandis, Zakharov, cited above, § 26; Kazakov, cited above, § 28; and Siryk, cited above, § 42).", "96. At the same time the Court notes that even a letter distributed within a small community, such as a public institution, can inevitably harm the reputation and professional image of the person concerned (see Peruzzi v. Italy, no. 39294/09, § 63, 30 June 2015). It cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks in the course of their duties (see Peruzzi, cited above, § 52; see also Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I, and Nikula v. Finland, no. 31611/96, § 48, ECHR 2002 ‑ II). By the same token, civil servants should also be protected against abusive denunciations.", "(ε) As to the consequences of the statements", "97. The Court does not lose from sight the fact that calumnious denunciations to the competent authorities may result in investigating measures and may have very serious detrimental effects for the persons concerned, causing unnecessary stress and anxiety. Moreover, calumnious denunciations mean that the competent investigating or audit authorities can use more limited resources for the purposes of investigating or auditing other irregularities in the functioning of public authorities.", "98. The Court has no doubt that the impugned statements caused damage to the good name of the museum and called into question the management capacities of its director (see paragraphs 9, 24 and 25 above). It also caused damage to the museum as such. The Court also notes that the preliminary criminal inquiry, which was at some point initiated and ultimately discontinued (see paragraph 14 in fine, above) had certainly an impact upon the museum’s director in that it had caused him anxiety and stress.", "99. As to the consequences of the above-mentioned accusations being passed on to the authorities, the Court notes that in 2008 a series of management and tax audits of the museum were carried out by various public institutions (see paragraphs 12 and 13 above). On the basis of the material at hand, the Court notes that at least some of these audits had in fact been triggered by the impugned letters. Moreover, as stated by the Government and not effectively rebutted by the applicant, as a consequence of the actions attributed to the applicant, the museum had received less funding (see paragraph 15 above).", "(στ) As to the nature of the statements", "100. Another important factor relevant for the balancing exercise in the present case, is the nature of the utterances. In the instant case, the domestic courts did not expressly determine to which category the statements attributed to the applicant belonged. They did consider, however, that they were untrue, that they had not been objectively confirmed, and that they had been, in fact, disseminated in full knowledge of their falsehood, with intent to harm the museum and its director (see paragraphs 25 in fine and 26 above). A similar argument was put forward by the Government (see paragraph 64 above).", "101. The Court notes that the author did not refer throughout the text of the impugned letters to specific dates, persons or incidents (see, mutatis mutandis, Kwiecień v. Poland, no. 51744/99, § 54, 9 January 2007). He described in a general way the managerial shortcomings and the larger context in which they had allegedly occurred (see paragraphs 8-10 above). In particular, the applicant accused P.Ś. of theft, bullying the staff and using public funds for organising exhibitions in the interest of private persons. At the same time, part of the statements was strongly charged with the author’s subjective feelings and emotions. It appears therefore that the impugned utterances are a mix of assertions of facts and value judgments (compare Kaperzyński v. Poland, no. 43206/07, § 64, 3 April 2012; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999 ‑ III; Gąsior v. Poland, no. 34472/07, § 42, 21 February 2012; Dybek v. Poland (dec.) no. 62279/16, § 27, 25 September 2018; and Zybertowicz v. Poland, no. 59138/10, § 46, 17 January 2017).", "102. The Court observes that the author of the impugned statements was a private individual and not a journalist, media or non-governmental organisation with a public watchdog function (contrast Bladet Tromsø and Stensaas, cited above, § 66, and Medžlis Islamske Zajednice Brčko and Others, cited above, § 109). As such, the author was not bound by the Article 10 “duties and responsibilities” – for example, the obligation to provide accurate and reliable information or to verify factual statements if such statements were being made – to the same extent as would have been required by the ethics of journalism (see Bladet Tromsø and Stensaas, cited above, §§ 65-66, and Błaja News Sp. z o. o. v. Poland, no. 59545/10, § 51, 26 November 2013). At the same time, instead of contacting the authorities overtly under his own name, the applicant decided to send anonymous poison-pen letters.", "103. The applicant explains that the intention behind sending the letter was to help fighting corruption and other offences. The Court notes in this context that the applicant’s allegations not only proved false, but the applicant failed to adduce a sufficient factual basis to support his assertions of facts and value judgments.", "(ζ) As to the nature and severity of the penalty", "104. Lastly, the Court reiterates that the nature and severity of the penalty imposed are also factors to be taken into consideration when assessing the proportionality of the interference (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Malisiewicz-Gąsior v. Poland, no. 43797/98, § 68, 6 April 2006). While the use of criminal-law sanctions in defamation cases is not in itself disproportionate, the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press or others who engage in public debate from taking part in a discussion of matters of legitimate public concern (see Lewandowska-Malec, cited above § 69, with further references).", "105. In the instant case the applicant was criminally convicted; a fine was imposed on him in an amount equivalent to EUR 625. He was also ordered to pay various costs amounting to EUR 400 (see paragraph 19 above). The Court observes that the criminal conviction must obviously have had negative consequences for the applicant’s career – especially given the fact that he was a civil servant seeking re-employment (see, mutatis mutandis, Heinisch v. Germany, no. 28274/08, § 91, 21 July 2011). Nevertheless, the Court finds that the cumulative effect of in the circumstances of the present case, the criminal conviction or the aggregate amount of the financial penalties could not be considered as having had a chilling effect on the exercise by the applicant of his freedom of expression (in contrast with Lewandowska-Malec, cited above, § 70). Consequently, the sanction imposed on the applicant does not appear disproportionate.", "(c) The Court’s overall conclusion", "106. In the light of the above considerations, the Court finds that in the case at hand, the domestic courts adduced sufficient and relevant reasons to justify the interference with the applicant’s freedom of expression.", "107. There has accordingly been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant is a non - governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Zürich.", "6. On 5 November 2009 the youth wing of the Swiss People ’ s Party ( Junge Schweizerische Volkspartei ) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts:", "“In his speech in front of the Thurgau government building [ Thurgauer Regierungsgebäude ], B.K., the president of the local branch of the Young Swiss People ’ s Party [“ the JSVP”], emphasised that it was time to stop the expansion of Islam. With this demonstration, the Young Swiss People ’ s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (“ schweizerische Leitkultur ”), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one ’ s own identity.”", "7. In response, the applicant posted an entry on its website in the section called “Chronology – Verbal racism”, entitled “Frauenfeld TG, 5 November 2009”, including the following extract:", "“According to the report of the event, B.K., the president of the local branch of the Young Swiss People ’ s Party, emphasised that it was time to stop the expansion of Islam. He added further: ‘ The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one ’ s own identity. ’ Swiss People ’ s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People ’ s Party speaks of a great success. (Verbal racism)”", "8. On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced.", "9. On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court ( Bezirksgericht Kreuzlingen ). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court ’ s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as a value judgment, which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned.", "10. On 15 March 2011 the Kreuzlingen District Court dismissed B.K. ’ s action. It held that the publication of the impugned article on the applicant ’ s website had been justified since it had related to a political discussion on a matter of public interest.", "11. On appeal, on 17 November 2011 the Thurgau Cantonal High Court ( Obergericht des Kantons Thurgau ) reversed the first-instance judgment. It held that classifying B.K. ’ s speech as “verbally racist” had been a mixed value judgment, which could lead to an infringement of personality rights if it was based on untruths. The High Court concluded that B.K. ’ s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant ’ s website and replaced with the court ’ s judgment.", "12. On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court ( Bundesgericht ), reiterating its argument that any interference with B.K. ’ s personality rights had been justified. One of the applicant ’ s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261 bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and anti ‑ Semitism.", "13. On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation ’ s appeal, finding as follows (unofficial translation) :", "“ 3. The classification of and commenting on a person ’ s statements as ‘ verbal racism ’ violate that person ’ s honour. Not only in the context of the criminal offence of racial discrimination (Article 261 bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as ‘ verbally racist ’, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b / aa p. 487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent ’ s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term ‘ verbal racism ’. It thereby violated the respondent ’ s honour as part of his personality within the meaning of Article 28 § 1 of the Civil Code. The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 § 2 ZGB).", "4. The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent ’ s comments as ‘ verbal racism ’.", "4.1. The case - law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ...", "4.2. The appellant assigned the respondent ’ s statements to the section entitled ‘ verbal racism ’ ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent ’ s comments were indeed racist.", "4.3. The term ‘ racism ’ is understood as ‘ a doctrine ’ which states that ‘ certain races or nations are superior to others in terms of their cultural capacity ’, and, on the other hand, a ‘ certain attitude, manner of thinking and acting towards people of (certain) other races or nations ’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective ‘ verbal ’ describes racism as ‘ [occurring] with words, with the help of language ’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730). Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds ). ‘ Verbal racism ’ could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second- instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity.", "4.4. The statements that led the appellant to conclude that there had been ‘ verbal racism ’ are the core phrases ‘ it is time to stop the spread of Islam ... The Swiss guiding culture (“ schweizerische Leitkultur ”), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one ’ s own identity ’.", "4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs ( ‘ Christianity ’ ) with foreign beliefs ( ‘ Islam ’ ), delimited them ( ‘ to halt ’, ‘ preserving one ’ s own identity ’ ) and described his own as worthy of protection and defence ( ‘ Swiss leading culture ’, ‘ not to be repressed ’ ). For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims.", "4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as ‘ verbally racist ’. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light. Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 § 2 of the Civil Code.", "4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p. 165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts. ”", "V. Vulnerable / Target groups", "... 119. In particular, ECRI is concerned to learn that, in recent years, some political parties, including the UDC, have considerably exploited and encouraged prejudice and racist stereotypes concerning Muslims within the majority population, not only in their rhetoric but also in political campaign posters. As a result some parts of public opinion may equate the entire Muslim population with terrorists and religious extremists. The fear of seeing Switzerland ‘ swamped by Muslims ’ is also exploited. In some cases, this prejudice apparently leads to discrimination, notably in employment, since Muslims are refused jobs because of the suspicion surrounding them. In particular, women who wear the Islamic headscarf encounter difficulties of access to jobs, housing and goods and services for the public. Muslims are also vulnerable to discrimination in matters of naturalisation.", "120. To take but one example of hostility towards Muslims displayed in recent years, reference can be made to the federal popular initiative ‘ against the construction of minarets ’, aimed at adopting through referendum a new provision in the Federal Constitution, whereby ‘ the construction of minarets is forbidden ’. This initiative obtained the 100 000 signatures required and will therefore be submitted to the people and the cantons. It has, however, been deemed clearly incompatible with freedom of religion by the Federal Council, and hence in breach of the Swiss Constitution and international law as binding on Switzerland, and the Federal Council has called on the people and the cantons to reject it. The Federal Commission against Racism itself has stated that the initiative ‘ defames Muslims and discriminates against them. ’ However, it seems that, under Swiss law, only a popular initiative to amend the Constitution which violated ‘ mandatory international law ’ (jus cogens) would be invalid. ECRI regrets to learn that an initiative which infringes human rights can thus be put to the vote and very much hopes that it will be rejected. It regrets in particular the tone taken by the political discourse of the initiative ’ s supporters with regard to Muslims, as it largely contributes to their stigmatisation and to the reinforcement of racist prejudice and discrimination against them by members of the majority community.”", "20. In its Concluding observations on the combined seventh to ninth periodic reports on Switzerland of 13 March 2014, the UN Committee on the Elimination of Racial Discrimination held as follows:", "“C. Concerns and recommendations ...", "Racism and xenophobia in politics and the media", "The Committee is deeply concerned at racist stereotypes promoted by members of right-wing populist parties and sections of the media, in particular against people from Africa and south-eastern Europe, Muslims, Travellers, Yenish, Roma, asylum seekers and immigrants. It is also concerned at the display of political posters with racist and/or xenophobic content and of racist symbols, as well as at racist behaviour and at the lack of prosecution in such cases. The Committee is further concerned at the xenophobic tone of popular initiatives targeting non-citizens, such as the initiative ‘ against the construction of minarets ’, adopted in November 2009, the initiative on the ‘ expulsion of foreign criminals ’, adopted in November 2010, and the initiative ‘ against mass immigration ’, adopted in February 2014. The Committee notes that such initiatives have led to a sense of unease among the affected communities and in Swiss society generally ... ”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOCUMENTS", "14. The relevant part of Part One, Chapter One of the Swiss Civil Code, as in force at the material time, reads as follows:", "Article 28", "“Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement.", "An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.”", "Article 28a", "“The applicant may ask the court:", "1. to prohibit a threatened infringement;", "2. to order that an existing infringement cease;", "3. to make a declaration that an infringement is unlawful if it continues to have an offensive effect.", "In particular, the applicant may request that a rectification or court judgment be notified to third parties or published.", "Claims for damages and satisfaction or for the handing over of profits are reserved, in accordance with the provisions which govern agency without authority.”", "15. The relevant part of the Swiss Criminal Code, as in force at the material time, reads as follows:", "Article 261 bis", "Racial discrimination", "“Any person who publicly incites hatred or discrimination against a person or a group of persons on the grounds of their race, ethnic origin or religion, any person who publicly disseminates ideologies that have as their object the systematic denigration or defamation of the members of a race, ethnic group or religion,", "any person who with the same objective organises, encourages or participates in propaganda campaigns,", "any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of those grounds denies, trivialises or seeks a justification for genocide or other crimes against humanity,", "any person who refuses to provide a service to another on the grounds of that person ’ s race, ethnic origin or religion, when that service is intended to be provided to the general public,", "is liable to imprisonment of up to three years or to a fine .”", "16. In October 2008, the Swiss Federal Commission against Racism issued an opinion on the initiative against the construction of minarets, the relevant part of which reads as follows:", "“The Federal Commission against racism recommends:", "1. rejection of the initiative ‘ against the construction of minarets ’ ...", "The initiative against the construction of minarets ...", "... discriminates against and defames Muslim men and women", "1. The initiative and the arguments of those who support it equate to discrimination against Muslims. They are aimed at an outright ban on minarets, whereas Christians and members of other religions, such as Hindus, Buddhists and others, are not subject to a similar prohibition.", "2. The initiative against the construction of minarets spreads and reinforces negative stereotypes concerning Islam and thereby defames Muslims. The minaret thereby becomes, in one sweeping judgment, the symbol of a will to power which, according to the supporters of the initiative, calls into question fundamental rights guaranteed by the Constitution, for instance gender equality. The text suggests that part of a religious building is a risk to society. All Muslims are therefore criticised for dishonest and even unlawful behaviour. However, such reproaches are contradicted by the facts.", "The initiative against the construction of minarets ...", "... breaches fundamental and human rights", "3. The intitiative violates the freedom of religion guaranteed by human rights and the liberty of conscience and faith guaranteed by the Federal Constitution (Article 15). A prohibition on constructing minarets limits the rights of Muslims to practise their religion alone and in community with others. No public interest justifies such a restriction ....", "The initiative against the construction of minarets ...", "... fuels fear and creates insecurity", "6. The initiative fuels fear among members of the majority population and among minorities. Muslims are and feel limited in exercising their rights. There will be a greater feeling of insecurity in Muslim communities because they will wonder about the extent of the restrictions. Moreover, the supporters [of the initiative] fuel fears by talking about ‘ rampant Islamisation ’ which represents a danger for the country. They completely ignore the fact that in Switzerland there is no serious problem of the integration of Muslims as far it concerns the practice of their religion.", "The initiative against the construction of minarets ...", "... is an obstacle to integration", "7. Spreading stereotypes encourages discrimination on an everyday basis. Young people looking for a place to learn are pushed to the sidelines if they have a name that makes people think they are Muslims because of a fear they will cause problems. Muslims are insulted in public or excluded by their neighbours, who fear them. Repeated instances of discrimination make young people less disposed to integrate ... ”", "17. The website of the Swiss Federal Commission against Racism has a “Definition of Racism”, which reads as follows:", "“ Despite numerous studies on the subject, to date there is no universally accepted definition of racism. The one used most frequently is that of the French sociologist Albert Memmi:", "‘ Racism is a generalising definition and evaluation of differences, whether real or imaginary, to the advantage of the one defining or deploying them, to the detriment of the one subjected to the act of definition, whose purpose is to justify hostility or privilege. ’ ...", "In addition to this strict definition of the term, which particularly applies to classic pseudo-biological racism, there is also racism in the wider sense, which relies on cultural, psychological, social or metaphysical arguments. ... ”", "18. In its General Policy Recommendation No. 7, adopted on 13 December 2012, the European Commission against Racism and Intolerance (ECRI) gave the following definition of racism :", "“ ‘ Racism ’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons ... .”", "The relevant part of the Explanatory Memorandum to ECRI ’ s General Policy Recommendation No. 7 stated as follows:", "“6. In the Recommendation, the term ‘ racism ’ should be understood in a broad sense, including phenomena such as xenophobia, antisemitism and intolerance. As regards the grounds set out in the definitions of racism ..., in addition to those grounds generally covered by the relevant legal instruments in the field of combating racism and racial discrimination, such as race, colour and national or ethnic origin, the Recommendation covers language, religion and nationality. The inclusion of these grounds ... is based on ECRI ’ s mandate, which is to combat racism, antisemitism, xenophobia and intolerance. ECRI considers that these concepts, which vary over time, nowadays cover manifestations targeting persons or groups of persons, on grounds such as race, colour, religion, language, nationality and national and ethnic origin. As a result, the expressions ‘ racism ’ and ‘ racial discrimination ’ used in the Recommendation encompass all the phenomena covered by ECRI ’ s mandate.”", "19. The relevant parts of ECRI ’ s Fourth report on Switzerland (CRI (2009) 32), published on 15 September 2009, read as follows:", "“ III. Racism in political discourse", "... 88. ECRI is deeply concerned at the changes in the tone of political discourse in Switzerland since the publication of its previous report. These changes are very closely linked to the growth of the UDC party ( Union démocratique du centre/SVP Schweizerische Volkspartei ). In the latest parliamentary elections at federal level, the UDC obtained the highest score: 29% of the votes. With 62 elected members of the National Council – the second chamber of parliament – (55 during the 2003 parliamentary term), the UDC now occupies a significant position in Swiss politics. This party alone has made “foreigners” its key issue. The programme, positions, campaigns, posters and other material produced by the party are described by all anti ‑ racism experts as xenophobic and racist ....", "94. ECRI is pleased to note that the federal authorities regularly and openly oppose various parliamentary motions and requests for referenda launched or supported by the UDC, explaining that they infringe or are likely to infringe human rights, as in the case of the request for a referendum intended to ban the construction of minarets. The Swiss people themselves, although 29% voted for this party, reject some of its more extreme positions in referenda. The Federal Commission against Racism, the Federal Commission for Migration Issues and other bodies constantly warn the general public about this threat to the country ’ s social cohesion.", "95. ECRI reiterates that unrestrained racist and xenophobic political discourse inevitably leads to a range of serious consequences – some of which can already be observed in Switzerland – including ill-conceived proposals which could disproportionately affect particular groups or their capacity for exercising their human rights in practice. Such discourse risks the undermining of social cohesion and an incitement to racial discrimination and racist violence ....", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "21. The applicant organisation complained that the domestic court ’ s finding of an infringement of B.K. ’ s personality rights had violated its right to freedom of expression, as guaranteed in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to ... impart information and ideas without interference by public authority ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”", "A. Admissibility", "22. The Government submitted that the applicant organisation had failed to exhaust the available domestic remedies as it had never expressly complained of a breach of its right to freedom of expression before the Federal Supreme Court.", "23. The applicant organisation contested that argument. It had relied in its appeal to the Federal Supreme Court on its right to freedom of expression and reiterated that any interference with B.K. ’ s personality rights had been justified. Referring to its essential role as a public watchdog, the applicant organisation complained that the High Court ’ s decision had prevented it from fulfilling its task of informing the public according to its statutory purpose and its publicly acknowledged standing. In general, it had contended before the Federal Supreme Court that there had been a breach of its right to pursue its information activities and thus a violation of its right to freedom of expression.", "24. The Court observes that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II).", "25. The rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time, it requires, in principle, that the complaints intended to be made subsequently at international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-87, 9 July 2015 ).", "26. It is not necessary for the Convention right to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance” ( see Fressoz and Roire v. France [GC], no. 29183/95, § 39, ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III ). If the applicant has not relied on the provisions of the Convention, he or she must have raised arguments to the same or like effect on the basis of domestic law, in order to have given the national courts the opportunity to redress the alleged breach in the first place ( see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010, and Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010 ).", "27. In the present case, the applicant organisation ’ s principal argument before the Federal Supreme Court was that the publication of a text which had put B.K. ’ s statements in the category of “verbal racism” had been wrongly classified by the second-instance court as an infringement of his personality rights. The Federal Supreme Court, for its part, acknowledged that the applicant had relied on matters relating to freedom of the press and reviewed the case from the aspect of freedom of expression. It further emphasised that the rights to freedom of expression and freedom of the press had to be taken into consideration when interpreting Article 28 of the Swiss Civil Code, which was relied on in the case before it.", "28. In those circumstances, the Court is satisfied that through the arguments it raised before the Federal Supreme Court, the applicant organisation did complain, albeit only implicitly, about its right to freedom of expression. In doing so, it raised, at least in substance, a complaint under Article 10 of the Convention before the Federal Supreme Court and the court examined that complaint. It follows that the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Muršić v. Croatia [GC], no. 7334/13, § 72, ECHR 2016 ). The Government ’ s objection concerning a failure to exhaust domestic remedies must therefore be dismissed.", "29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "30. The applicant submitted that the Federal Supreme Court had wrongly found the expression “verbal racism” to be a mixed value judgment which required proof of veracity. In any event, considering the socio ‑ political context, the description of B.K. ’ s speech as an act of “verbal racism” could not be regarded as devoid of any factual basis.", "31. The Federal Supreme Court found that because his statements were labelled as “verbal racism”, B.K was implicitly being accused of a criminal offence under Article 261 bis of the Swiss Criminal Code. However, in the applicant organisation ’ s view, the criminal offence of “racial discrimination” could not be equated with the term “racism”. The concept of racism was highly complex and often disputed and a brief reference by the Federal Supreme Court to a dictionary entry could not sufficiently explain its complexity.", "32. The applicant organisation regularly wrote about racist incidents that did not fall within the meaning of a criminal offence. Its website clearly explained its wide understanding of the term “racism” and detailed the contents of the category “verbal racism” so that readers were well aware of what to expect. In the applicant organisation ’ s view, prohibiting the term “racism” from being used to describe certain kinds of behaviour or statements if they did not amount to a criminal offence within the meaning of Article 261 bis of the Criminal Code would be highly damaging to democratic society and in complete contradiction to various human rights standards.", "33. In its role of “public watchdog”, the applicant organisation argued that it deserved the same protection as the press and that the margin of appreciation of the respondent State should therefore be restricted. Moreover, it had exercised the degree of discretion required from all journalistic publications in the impugned Internet entry and had refrained from provocation.", "34. The applicant stressed that the initiative against the construction of minarets had given rise to heated discussions in Switzerland. In its view, there was no doubt that that political initiative had been racist and discriminatory. That view had been confirmed by a number of renowned experts and bodies, which had held that the initiative was “racist” in nature, or at least racist - related.", "35. The applicant organisation further argued that B.K., in his role as a politician, had to accept that he was more likely to become the subject of criticism than the average person, irrespective of his young age. Rejecting the Government ’ s argument in that regard, the applicant organisation stated that B.K. was an adult and thus bore full responsibility for his political activities.", "36. Finally, the court proceedings at issue had had a chilling effect on the applicant organisation, not least in view of the considerable court and lawyers ’ fees it had been ordered to pay. Such actions had de facto put an end to its public watchdog activities as it now had to fear further court action. If it had not complied with the court order to remove the impugned entry from its website, the applicant organisation would have faced a fine of up to 10,000 Swiss francs (CHF) (around 9, 200 euros (EUR) ). Such costs were a serious threat to the applicant ’ s right to freedom of expression, particularly in view of the fact that they could practically disable its functioning owing to its limited resources, which were earmarked for specific purposes.", "(b) The Government", "37. The Government submitted that the classification of B.K. ’ s statements as an act of “verbal racism” had constituted a mixed value judgment, which had to have a factual basis. The Federal Supreme Court had relied on the sense generally attributed to the notion of racism and the perception of B.K. ’ s statements that an average person would have had. In that regard, the Federal Supreme Court had referred to the definition in the reference dictionary for the German language, according to which racism related to the superiority of certain races or peoples over others due to their cultural capacity and, on the other hand, a corresponding attitude or behaviour towards other people belonging to certain races or peoples. A simple mention of the differences between two individuals or groups could not be interpreted as racism. Racism began where such a difference at the same time involved belittlement of the victim and where the highlighting of such differences was used to present the victim in a negative light and to denigrate them. In the Government ’ s view, that definition corresponded to the one used by the Swiss Federal Commission Against Racism and the European Commission against Racism and Intolerance (ECRI).", "38. The applicant organisation defined racism on its website and in the proceedings it had pointed out that the notion of racism had to be understood in a particularly wide sense so as to cover any grouping according to race, skin colour, origin, nationality, culture or religion. Nevertheless, the Government argued that in the context of the protection of reputation, the general sense attributed to the notion of racism had to be borne in mind, which implied in particular that the target group was of a lower value than one ’ s own group. In his speech B.K. had only compared his own culture, founded on Christianity, with other cultures, including Islam. He had defined both of them and had designated his own culture as worthy of protection. His statements had not contained racist words according to the generally accepted meaning of that term. Consequently, describing his statements as “verbal racism” had not had a factual basis.", "39. The Government admitted that the applicant organisation could be described as a social “public watchdog” because of its objectives and area of work and that, consequently, it could benefit from the same protection as the press. They also agreed that B.K., as president of the local branch of a youth wing of a political party, having spoken publicly during a demonstration, had entered into the public arena and engaged in a political debate. Thus normally the limits of permitted criticism would need to be wider for him than for a private individual. Nevertheless, the Government argued that that principle had to be applied in a differentiated way because B.K. was only 21 years old at the time. He had been at the beginning of his political career and was unknown at national level. Those circumstances justified proper protection for his personality rights and reputation.", "40. For the Government, even if it was accepted that both B.K. ’ s statements and the applicant organisation ’ s Internet entry had been part of a political debate on a question of general interest, the impugned publication had not been a statement in a political debate but had merely been an account of a public gathering that was essentially factual in character. Furthermore, the applicant organisation had presented B.K. ’ s statements on the part of its website entitled “Chronology”, which contained objective information rather than comments, thereby further increasing the factual component of its statement. The degree of exaggeration that was allowed in information of an essentially factual character was necessarily lower than that tolerated for ideas or opinions. The applicant ’ s responsibility to supply exact and trustworthy information also took on particular importance when it came to the publication of a chronology. It had had the opportunity to prove the truth of the impugned statement, but had failed to do so.", "41. The Government maintained that describing someone ’ s words as “verbal racism” could generally decrease respect for that person and be associated by the average reader with an accusation of an offence punishable under criminal law. In the presence of words which equated to liability for criminal conduct, there had been a “pressing social need” to prevent people gaining the impression of such serious charges.", "42. The sanctions against the applicant organisation had been of a civil nature and limited in scope. The ban on publishing the information in question on its website under the section “Chronology – Verbal racism” had not prevented the applicant organisation from publishing the information in question under another section or with another title.", "43. In conclusion, there had been a pressing social need to take the impugned measure against the applicant organisation and the State had not overstepped the margin of appreciation it was afforded.", "2. The Court ’ s assessment", "( a) Whether there was an interference", "44. It is not in dispute between the parties that the domestic courts ’ finding against the applicant organisation constituted an interference with its right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether the interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve the aim sought.", "( b) Whether it was prescribed by law", "45. The applicant argued that Article 28 of the Swiss Civil Code had lacked foreseeability in view of its general lack of unspecific wording. According to the Government, the impugned measures had a sufficient legal basis in Swiss law.", "46. The Court accepts that the interference in the present case was based on Article 28 of the Swiss Civil Code (see paragraph 14 above) and that that provision was accessible. The parties ’ views, however, diverge on its foreseeability. The Court must thus examine whether the provisions in question fulfill the foreseeability requirements.", "47. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable individuals to regulate their conduct: they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 124, ECHR 2016 (extracts), and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015 ).", "48. Turning to the present case, the Court finds no ambiguity in the content of the provisions of domestic law relied on by the national courts. As the Government submitted, the said provision has been in force since 1985 and the Federal Supreme Court has developed ample jurisprudence in relation to it. What is more, Article 28a of the Civil Code enumerates the possible measures that a court can take if it finds that there has been an unlawful infringement of an individual ’ s personality rights. While it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I), the Court finds nothing to suggest that the applicant organisation was not in a position to foresee, to a reasonable degree, the national appellate court ’ s interpretation and application of Article 28 of the Civil Code to its case.", "49. The Court therefore concludes that the impugned interference was “prescribed by law”.", "( c) Whether there was a legitimate aim", "50. The Court finds that the interference pursued one of the legitimate aims set out in paragraph 2 of Article 10, namely the protection of the reputation and rights of others.", "( d) Whether it was necessary in a democratic society", "(i) General principles", "51. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” ( see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lindon, Otchakovsky- Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007- IV; and Perinçek v. Switzerland [GC], no. 27510/08, § 196, 15 October 2015).", "52. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10.", "53. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, among others, Mamère v. France, no. 12697/03, § 19, ECHR 2006 ‑ XIII, and Lindon, Otchakovsky-Laurens and July, cited above, § 45).", "54. The Court further recalls that the right to protection of reputation is protected by Article 8 of the Convention as part of the right to respect for private life. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, ECHR 2017 ). When examining the necessity of an interference in a democratic society in cases where the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012 ).", "55. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, 10 November 2015). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011).", "56. The Court has already had occasion to lay down the relevant principles which must guide its assessment in this area. It has thus identified a number of criteria which may come into play in the context of balancing the competing rights (see Couderc and Hachette Filipacchi Associés, cited above, § 93 ). The relevant criteria thus defined include: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, and the content, form and consequences of the publication.", "57. Lastly, the Court has previously accepted that when an NGO draws attention to matters of public interest, it is exercising a “public watchdog” role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press (ibid., and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 166, 8 November 2016).", "(ii) Application of the general principles in the present case", "58. The Court notes that the present case concerns a conflict of concurring rights, namely, on the one hand, respect for B.K. ’ s right to respect for his private life and freedom of expression and, on the other, the applicant organisation ’ s right to freedom of expression.", "59. Where national jurisdictions have carried out a balancing exercise in relation to those rights, the Court has to examine whether, during their assessment, they applied the criteria established in its jurisprudence on the subject ( see Axel Springer AG, cited above, § 88) and whether the reasons that led them to take the impugned decisions were sufficient and relevant to justify the interference with the right to freedom of expression ( see Cicad v. Switzerland, no. 17676/09, § 52, 7 June 2016 ). It will do so by examining the criteria established in it case-law (see paragraph 56 above) which are of relevance to the present case.", "( ɑ) Contribution to a debate of public interest", "60. When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made.", "61. Both B.K. ’ s speech and the applicant organisation ’ s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution.", "( β) How well-known is the person concerned and the subject of the report", "62. The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010). For them, the limits of critical comment are wider as they are inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Ayhan Erdoğan v. Turkey, no. 39656/03, § 25, 13 January 2009, and Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008).", "63. The Government argued that that principle had to be applied in a different way in the present case because B.K. was only 21 at the time he gave the critical speech. He was at the beginning of his political career and was unknown at national level. Those circumstances justified a proper level of protection for his personality rights and reputation.", "64. The Court does not share the Government ’ s view in this respect. B.K. had been elected president of a local branch of the youth wing of a major political party in Switzerland. The speech cited by the applicant organisation was clearly political and was made in the framework of support for his party ’ s political goals, which at that time were to promote the popular initiative against the construction of minarets.", "65. Consequently, B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views.", "( γ) Content, form and consequences of the publication", "66. In the present case the applicant reproduced B.K. ’ s speech, which had already been published on the political party ’ s own website, but called it “verbal racism”.", "67. The Federal Supreme Court held that classifying B.K. ’ s speech as “verbal racism ” had been a mixed value judgment which had had no factual basis because the speech had not been racist. In particular, the Federal Supreme Court held that for the average reader B.K. ’ s statements did not come across as belittling Muslims, but were merely defending Christianity as the Swiss guiding culture (“ schweizerische Leitkultur ”; see paragraph 13 above ).", "68. At this point the Court reiterates that a distinction needs to be made between statements of fact and value judgments in that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103, and Prager and Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Prager and Oberschlick, cited above, § 36). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there existed a sufficient “factual basis” for the impugned statement: if there was not, that value judgment may prove excessive ( see Morice v. France [GC], no. 29369/10, § 126, 23 April 2015 ). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel v. France, no. 54968/00, § 37, 22 December 2005 ).", "69. Turning to the present case, the Court considers that the applicant ’ s classification of B.K. ’ s speech as “verbal racism ” constituted a value judgment as it contained the applicant ’ s organisation ’ s own comment on B.K. ’ s statements. What the Court has to establish is whether such a comment could be said to have had a sufficient factual basis, bearing in mind the general background of the ongoing political debate in which the statement was made ( see paragraph 61 above).", "70. In the present case, it is not the Court ’ s task to settle the question of the definition of racism, which seems to have been in dispute between the applicant and the respondent in the domestic proceedings. The Court takes note of the Federal Supreme Court ’ s conclusion, which was that merely pointing out a difference between two individuals or groups could not be interpreted as racism (see paragraph 13 above). At the same time, it is mindful of the definitions of racism by ECRI and the Swiss Federal Commission against Racism (see paragraphs 18 and 17 above).", "71. The Court also attaches importance to the documents from various specialised national and international bodies on the matter. The tone taken in the political discourse of the supporters of the initiative in question was described in ECRI ’ s 2009 report on Switzerland as one that “ largely contributes to the stigmatisation [of Muslims] and to the reinforcement of racist prejudice and discrimination against them by members of the majority community” (see paragraph 19 above). Likewise, the Swiss Federal Commission Against Racism noted in its recommendations that the initiative defamed and discriminated against Muslim men and women (see paragraph 16 above). Furthermore, in 2014 the UN Committee on the Elimination of Racial Discrimination reported on the initiative in its concluding observations under the title “Racism and xenophobia in politics and the media” (see paragraph 20 above).", "72. Moreover, as observed by the Federal Supreme Court, B.K ’ s speech implied that the “ Swiss guiding culture ” was “worthy of protection and defence” against the expansion of Islam (see paragraph 13 above). In the Court ’ s view, this in itself would suggest that the latter was something negative from which the former needed protection and that B.K. ’ s speech was thus not merely limited to the “ demonstration of a difference”.", "73. For the foregoing reasons, the Court considers that it cannot be said that classifying B.K. ’ s speech as “verbal racism” when it supported an initiative which had already been described by various organisations as discriminatory, xenophobic or racist, could be regarded as devoid of any factual basis.", "74. The Court further observes that the applicant never suggested that B.K. ’ s statements fell within the scope of the criminal offence of racial discrimination under Article 261 bis of the Swiss Criminal Code. In fact, in its arguments before the national authorities and the Court (see paragraph 32 above), the applicant organisation stressed the need to be able to describe an individual ’ s statement as racist without necessarily implying criminal liability.", "75. What is more, in the Court ’ s view, the impugned description cannot be understood as a gratuitous personal attack on or insult to B.K. The applicant organisation did not refer to his private or family life, but to the manner in which his political speech had been perceived. As already stated, B.K., as a young politician expressing his view publicly on a very sensitive topic, must have known that his speech might cause a critical reaction among his political opponents.", "76. In view of the foregoing, the impugned categorisation of B.K. ’ s statement as “ verbal racism ” on the applicant organisation ’ s website could hardly be said to have had harmful consequences for his private or professional life (see, a contrario, Cicad, cited above, § 56 ).", "( δ) Severity of the sanction", "77. Finally, the nature and severity of the sanction imposed on an applicant are also factors to be taken into account when assessing the proportionality of an interference. The domestic courts ordered the applicant organisation to remove the impugned article from its website and to publish the conclusion of the second-instance court. It also had to pay CHF 3, 33 5 plus tax in court fees and reimburse B.K. ’ s legal costs of CHF 3, 830 plus tax.", "78. In the Court ’ s view, the above sanction, however mild, may have had a “chilling effect” on the exercise of the applicant organisation ’ s freedom of expression as it may have discouraged it from pursuing its statutory aims and criticising political statements and policies in the future (see, mutatis mutandis, Lewandowska-Malec v. Poland, no. 39660/07, § 70, 18 September 2012).", "( ε ) Conclusion", "79. In the light of all of the above-mentioned considerations, the Court considers that the arguments advanced by the Government with regard to the protection of B.K. ’ s personality rights, although relevant, cannot be regarded as sufficient to justify the interference at issue. In reviewing the circumstances submitted for their assessment, the domestic courts did not give due consideration to the principles and criteria laid down by the Court ’ s case-law for balancing the right to respect for private life and the right to freedom of expression (see paragraphs 55 and 56 above). They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicant organisation ’ s right to freedom of expression and the legitimate aim pursued.", "80. There has accordingly been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "81. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "82. The applicant organisation claimed 5,000 euros (EUR) in respect of non-pecuniary damage.", "83. The Government considered this claim excessive and submitted that the mere finding of a violation would suffice to cover any non ‑ pecuniary damage suffered by the applicant.", "84. In view of the violation found, the Court awards the applicant the amount requested in full.", "B. Costs and expenses", "85. The applicant organisation also claimed CHF 29,943.60 (approximately EUR 26,174.85 ) for costs and expenses, including legal representation, incurred before the domestic courts, and CHF 15,261.70 (approximately EUR 13,340.84 ) for costs and expenses incurred before the Court. The latter sum corresponds to approximately 47 hours of legal work billable by its lawyer at an hourly rate of CHF 300 plus postal and copying costs and tax.", "86. The Government did not contest CHF 11 ,8 10.90 (approximately EUR 10,324.36 ) of the claim, which included the applicant ’ s costs for the domestic courts and the amount it was ordered to pay in respect of B.K. ’ s legal costs at the domestic level. However, they contested the applicant ’ s claims for its own legal representation in both the domestic and Court proceedings and proposed CHF 8 ,000 (approximately EUR 7,000 ) as appropriate compensation in that regard.", "87. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 30 ,000 covering costs under all heads.", "C. Default interest", "88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The first applicant is a writer and the second is the chairman of the board of directors of the publishing company P.O.L.; the third was the publication director of the daily newspaper Libération. They were born in 1955, 1944 and 1949 respectively and live in Paris.", "A. The conviction of Mr Lindon and Mr Otchakovsky-Laurens (application no. 21279/02)", "1. The publication of the novel “ Jean-Marie Le Pen on Trial ”", "10. The first applicant is the author of a book presented as a novel under the title Le Procès de Jean-Marie Le Pen ( “ Jean-Marie Le Pen on Trial ” ), published in August 1998 by P.O.L.", "11. The novel recounts the trial of a Front National militant, Ronald Blistier, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. He is defended by a Jewish, left-wing and homosexual lawyer, Pierre Mine.", "The novel is based on real events and in particular the murders, in 1995, of Brahim Bouaram, a young Moroccan who was thrown into the Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by militants of the same party. Those militants were convicted in June 1998 after a trial in the Assize Court during which Front National leaders, Mr Le Pen included, declared that the case was no more than a provocation and a put-up job through which the party ’ s enemies sought to harm it.", "The author builds the plot around the lawyer, the main protagonist, who throughout the trial finds himself embroiled in a political debate. At the very beginning he raises the question of Mr Le Pen ’ s responsibility: “ Isn ’ t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric? ” (page 7). The novel focuses on a number of figures who are characterised by their moral or political positions in relation to the ideology and political party of the far right. The work also seeks to highlight the difficulties and contradictions of certain “ anti-racist ” stances.", "12. The text on the back cover of the book describes the novel as follows:", "“ How can Jean-Marie Le Pen be fought effectively? The youth Ronald Blistier, member of the Front National, has committed a cold-blooded racist murder, killing an Arab youth in the open street. The case has caused an outcry and it is generally agreed that Blistier ’ s trial should really be that of his mentor.", "Thirty-year-old Jewish lawyer Pierre Mine is defending the murderer. He has certain ideas about how best to fight Jean-Marie Le Pen.", "– Set a trap for Le Pen? But it would backfire on all of us, warns his boyfriend Mahmoud Mammoudi.", "Pierre Mine pursues his fight regardless. His strategy is unfathomable. Won ’ t he become the punchbag of the anti-racists and the champion of those he seeks to defeat? Jean-Marie Le Pen pretends to show him some respect. He is beset with troubles on all sides – it ’ s as if those who have no real success in their fight against the Front National are nevertheless suspicious of anyone trying a different approach. ”", "13. By originating summonses of 20 and 27 November 1998, the Front National and Mr Le Pen brought proceedings against the first two applicants in the Paris Criminal Court for the offence of public defamation against a private individual, as a result of the novel ’ s publication, under sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. Six extracts from the novel were the subject of particular complaint: those ( on pages 10, 86, 105-06 and 136) that were reproduced in a judgment delivered by the Paris Court of Appeal on 13 September 2000 (see paragraph 1 8 below), and the following two passages :", "On page 28 the author attributes the following remarks to Mrs Blistier, Ronald ’ s mother:", "“ It might have crossed his mind, but he was never much good at shooting – my husband didn ’ t like Ronald using his rifle. But maybe the lad was humiliated because he ’ d never beaten anyone up, when all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates. ”", "On page 118, concerning a Front National demonstration, the author writes:", "“ The crowd assembled on Place de la Bastille, now whipped up by their master ranter, mostly consists of youths. If you searched them you ’ d find handguns by their hundreds. They ’ re ready for a fight – they ’ re only too pleased if far-left organisations think it ’ s a good strategy to confront them. The atmosphere is in some ways one of pre-insurrection, but as the journalists present have observed, the feeling on the side of the democrats is more one of disgust than of panic. A fascist coup d ’ état isn ’ t yet on the cards, there is more a fear of gangrene setting in – a social disease that can occasionally be stopped from spreading or curbed temporarily. ”", "2. The Paris Criminal Court ’ s judgment of 11 October 19 9 9", "14. In a judgment of 11 October 1999, the Paris Criminal Court convicted the second applicant of defamation and the first applicant of complicity in that offence, taking account, however, of only four of the six offending extracts, namely those on pages 10, 86, 105-06 and 136 of the book. They were each sentenced to pay a fine of 15,000 French francs (FRF) ( equivalent to 2,286.74 euros (EUR) ) and ordered jointly and severally to pay FRF 25,000 (EUR 3,811.23) in damages to each of the civil parties, together with the cost of publishing an announcement of the judgment.", "In its judgment the court found as follows:", "“ Whether the publication was defamatory :", "It should first be noted that, whilst the author chose to write a ‘ novel ’, as indicated on the front cover of the book, he portrays, along with a number of fictional characters, an actual and living political figure, namely Jean-Marie Le Pen, and his party, the Front National. In addition, the author announces the subject matter of his work in the title itself, ‘ Jean-Marie Le Pen on Trial ’. On the back cover he asks the question ‘ How can Jean-Marie Le Pen be fought effectively? ’ and in the first few lines of the book he raises another question: ‘ Isn ’ t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric? ’ The reader thus immediately becomes aware that the fictional trial is a vector for direct criticism of Jean-Marie Le Pen, especially since the facts described are largely, and obviously, inspired by actual events which have had a great impact on public opinion.", "Accordingly, although it is a novel, and although the offending remarks are only made by fictional characters, it can nevertheless be observed that the work seeks to impart clearly expressed ideas and to communicate a certain image of Jean-Marie Le Pen, his party and their behaviour. The classification of the charge cannot therefore be ruled out purely on the basis of the technique used to that end.", "The text, regardless of its literary genre, is capable of harming the honour and reputation of the civil parties and it is appropriate to examine each of the offending extracts to establish their meaning and significance and to determine whether, for the charge of defamation to be made out, they are precise enough for the issue of proof to be addressed.", "First passage, page 10: To allege that Jean-Marie Le Pen is the chief of a gang of killers – in other words, that he heads a group of murderers – constitutes, in the context of the book, an evidently defamatory allegation of sufficiently precise conduct, reference being made to the racist crime committed by the novel ’ s protagonist, a young Front National member whose criminal act is said to have been inspired by the ideas advocated by Jean-Marie Le Pen.", "It is of no consequence that the crime of ‘ Ronald Blistier ’ is not real, because the author ’ s intention is not to write a satire about an impossible event but, on the contrary, to make the reader believe that, given Jean-Marie Le Pen ’ s ideology, such a scenario is quite plausible and that he would be accountable for it. The story also evokes – inevitably, for the reader – the trial in June 1998 of the Front National billstickers accused of killing a Comorian youth, Ibrahim Ali, in Marseilles. Similarly, when the author, a few passages further on, recounts the killing of a black youth called ‘ Julien Thoris ’, who is thrown into the Seine during a demonstration at which the Front National is present, the reader is bound to recall the real murder of Brahim Bouaram, whose killers were taking part in a march held by that party.", "The precision of the facts described in the offending extract is thus sufficient to constitute defamation against the civil parties, and the facts thus alluded to were susceptible of proof.", "Second passage, page 28: The assertion that ‘ all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates ’ is not clarified by other remarks or illustrated by any given facts. It may stem from the boastfulness attributed to the character in the novel and is too vague to justify prosecution.", "Third passage, page 86: The Front National is accused of using violence against those who leave the party. The author has one of his characters warn Ronald Blistier ’ s lawyer against ‘ the Front National ’ s common strategy ’ of ‘ battering ’ anyone who leaves it ( ‘ to beat you up ... ten against one, with metal bars, truncheons and steel-capped boots, one night as you ’ re leaving the house ’ ).", "This extract, which concerns facts that are precise and susceptible of proof, namely the attacking or even killing of anyone who dares to betray and leave the party, damages the honour of the Front National.", "Fourth passage, pages 105-06: To accuse Jean-Marie Le Pen of making statements ‘ with racist overtones that are barely concealed at best ’ and to write that ‘ from behind each of his assertions looms the spectre of the worst abominations of the history of mankind ’ constitutes defamation against him in that he is accused of a form of racism that reminds the reader of the worst atrocities ever perpetrated. The author moreover explains a few lines further on that Jean-Marie Le Pen can put the idea of a racist murder into simple minds like that of Ronald Blistier, who ‘ would not have had a gun in his hand and a North African kid at the end of it if Jean-Marie Le Pen had not made it possible ’ (p. 106).", "Fifth passage, page 118: This passage, which describes the young Front National militants firstly as being whipped up by their ‘ master ranter ’ and secondly as being armed by the hundreds and of creating an atmosphere of ‘ pre-insurrection ’, is certainly insulting to Jean-Marie Le Pen, but too imprecise to constitute defamation; the subsequent remarks do not concern the Front National but participants in that party ’ s demonstrations and cannot therefore be taken into account.", "Sixth passage, page 136: Jean-Marie Le Pen is accused of being a ‘ vampire ’ who thrives on ‘ the bitterness of his electorate ’ and ‘ the blood of his enemies ’, and of being a liar, defaming his opponents to protect himself from the accusations against him.", "The author develops this image and the term ‘ vampire ’ by writing, just after the offending passage: ‘ ... Jean-Marie Le Pen used Ronald Blistier ’ s life and is now using his death to stir up other Ronald Blistiers, to transform other lost youths into puppets who will have their lives and deaths manipulated by this ruthless puppeteer. ’", "These allegations about using the life and death of young militants, in driving them to murder and suicide, for personal political ends, are precise and damage the honour and reputation of Jean-Marie Le Pen.", "As to the existence of good faith :", "Defamatory allegations are, in law, deemed to have been made with the intention of causing harm, but they can be justified if the writer shows that he was acting in good faith.", "The court observes in this connection that the author did not simply write a work of fiction. He portrayed to his readers Jean-Marie Le Pen, engaged in his usual activities as Chairman of the Front National, with the intention of criticising him and his party and of challenging their ideas. Mathieu Lindon indeed stated at the hearing that he had made much use of information in the news and, as a result, the reader may not be able to distinguish clearly between fact and fiction, so clear was the intention to associate the situations and remarks with recent events.", "Although, in the sphere of political polemics and ideological debate, the greatest freedom of expression must be afforded to the author, that freedom is not unrestricted, and stops when it comes to personal attacks, whether they are made directly by the author or through the intermediary of fictional characters, and is discredited by the distortion of facts and by immoderate language.", "Whereas the defence has asserted that this story reflects reality and does not twist it, the documents produced, which are mainly press articles, being devoid of evidentiary value, are insufficient to substantiate the defamatory allegations taken into account by the court concerning the criminal conduct imputed to the civil parties. No relevant judicial decision against them, which might have justified such assertions, was produced in the proceedings, and in the absence of documents the court can only find that Mathieu Lindon distorted the facts to reinforce the hostility of his readers towards Jean-Marie Le Pen and his party.", "Furthermore, whilst authors and polemicists are afforded freedom to use a specific register, this does not authorise the particularly excessive remarks that appear in the text.", "It cannot therefore be accepted that the defendants acted in good faith and the charge of defamation to the detriment of Jean-Marie Le Pen and the Front National is accordingly made out ... ”", "3. The Paris Court of Appeal ’ s judgment of 13 September 2000", "15. The first two applicants appealed against the above judgment in the Paris Court of Appeal. They challenged the finding that the offending extracts were defamatory in nature. They argued that it was simply a work of fiction portraying fictional characters, as the reader could see from the very first page. They also argued that the remarks merely amounted to value judgments about the claimants, reflecting a public debate, treated with distance and irony, about how best to combat the rise of the far right. In the alternative, pleading good faith, they submitted that the ideas of Mr Le Pen and the Front National had not been distorted by the book and its characters, and that the offending passages consisted exclusively of remarks made by the fictional characters without reflecting the ideas of the author, who, for his part, had sought to criticise the strategy adopted by anti-racist associations and left-wing intellectuals in general, in their fight against the Front National.", "The applicants relied on Article 10 of the Convention, claiming that this provision precluded any conviction because a work of fiction was entitled to reflect debate as to the moral responsibility borne by the Front National and its leader ’ s ideas in the commission of racist crimes. They emphasised that the freedom to hold opinions would be infringed if the author of a value judgment were to be penalised on the pretext that he could not prove the pertinence of his opinion, and referred in this connection to the Lingens v. Austria judgment ( 8 July 1986, Series A no. 103). Lastly, they argued that equally aggressive and defamatory remarks against the civil parties had been made in the past by politicians or journalists, and that Mr Le Pen himself had been convicted several times of incitement to racial hatred.", "16. In a judgment of 13 September 2000, the Paris Court of Appeal ( Eleventh Division, consisting of Mr Charvet, President, Mr Blanc and Mr Deletang) upheld the judgment of 11 October 1999 as regards the defamatory nature of three out of the four passages taken into account by the Criminal Court, together with the fines imposed and the damages awarded by that court.", "17. In its judgment the Court of Appeal considered, firstly, that the work in question was a “ novel ”, “ a ‘ creation of the imagination ’ as defined by the Petit Robert dictionary ”, whose story line was constructed around the dilemma facing the main character : “ The author has developed a plot, based on that framework, running from the beginning of the proceedings against the young defendant until his suicide in prison before counsel ’ s address and the prosecution speech, and has given expression to many characters who mainly appear as stereotypes characterised by their moral or political position in relation to the civil parties, who themselves are explicitly real people. ” It further observed that Mr Le Pen and the Front National, both appearing under their real and current identities, were constantly at the forefront not only of the debate conducted in open court but also of the exchanges between the various characters, “ and even at the heart of the intimate contradictions facing the main protagonist ”. The court then noted that, on a number of occasions, words had been put into the mouth of Mr Le Pen, who “ express[ed] views that [ were ] close or identical to those [that he took] in reality, but which [had not been] regarded by the civil parties as impugning his honour and reputation or those of the party of which he [was] the leader ”. It further considered that the subject of the book was the question set out on the back cover, “ How can Jean-Marie Le Pen be fought effectively? ”, adding that “ to ask that question, even in a novel, [was] not per se defamatory against him ”.", "18. The court went on to point out that section 29 of the Act of 29 July 1881 defined defamation as “ any statement or allegation of a fact that impugns the honour or reputation of [a] person ” and that the law made no distinction based on the nature of the writing in issue. On that basis, any writing, whether political, philosophical, novelistic or even poetical, was governed by the applicable rules in such matters, with regard both to public order and to the protection of individuals. However, the court added that “ the application of the rules on defamation in respect of a press article or other text directly expressing the view of its author requires, if the text is a work of fiction, an examination of the question whether the civil parties are actually the individuals concerned by the offending remarks, and then of the meaning attributed by the author to the words of his characters in the light of the ideas that he expounds in reality in his work ”. As to the second point – the first being manifestly established – the court found as follows: “ ... a distinction has to be made between the offending passages on pages 10, 86, 105, and, lastly, 136, the only extracts now to be taken into account: some of them express the view of the narrator and coincide with the author ’ s ideas as they emerge from the work as a whole, whilst others can be attributed only to the character making the remarks in question, in so far as the author genuinely distances himself from those remarks throughout the work, either through the narrator or by other means. ”", "Using that method the court ruled as follows on the four passages in question :", "“ 1. Page 10: ‘ ... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too ’ [this view is attributed by the author to anti-racist demonstrators who have gathered outside the law courts].", "This segment of text is preceded by another, which has not been mentioned by the civil parties: ‘ For them, it ’ s not sufficient to call Ronald Blistier the murderer ’, following the narrator ’ s description of the crowd of ‘ anti - racists ’ which assembles in front of the law courts during the trial of Ronald Blistier.", "To assert that Jean-Marie Le Pen is not the Chairman of a political party but the chief of a gang of killers, and then in addition to equate him with Al Capone, is clearly defamatory, as was quite rightly observed by the court below.", "There is nothing in the preceding or following sentences to suggest that any distance has been taken by the narrator – and therefore, in view of the book ’ s literary construction, by the author himself – from this statement, which is attributed to the demonstrators gathered outside the law courts, and which, moreover, echoes the question presented on the back cover as the subject of the book: ‘ How can Jean-Marie Le Pen be fought effectively? ’", "This extract accordingly constitutes defamation against the civil parties.", "2. Page 86: ‘ He (Blistier [the accused]) wants to frighten you, Pierrot [the lawyer]. He wants to brand you as a member of his clan: that ’ s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they ’ ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you ’ re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don ’ t try and be clever, Pierrot. I don ’ t want them to kill you. ’", "These words are spoken by the boyfriend of the lawyer, Mr Mine, the main protagonist. The speaker is giving his own explanation about the defendant ’ s attitude towards his counsel during the hearing, in response to a question from Mine.", "This passage contains comments that are specific to the fictional character, albeit derogatory with regard to the civil parties, as observed by the court below.", "Nevertheless, and contrary to the assessment of the lower court, they do not appear to be susceptible of proof within the meaning of the Act of 29 July 1881: being attributed to a fictional character, in a situation which is itself fictional, the text does not suggest that they may necessarily be regarded as corresponding to the author ’ s opinion.", "This passage is not found to be defamatory.", "3. Pages 105 - 06: ‘ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt ’ [here the lawyer is addressing the court].", "It is clearly defamatory to accuse Jean-Marie Le Pen of ‘ proffering words or assertions with racist overtones that are barely concealed at best and from behind which looms the spectre of the worst abominations of the history of mankind ’.", "Such an accusation is susceptible of debate as to whether or not it holds true in relation to the actual discourse of Jean-Marie Le Pen and the Front National.", "The defendants cannot legitimately claim impunity for such remarks on the grounds that they derive from novelistic fiction and at the same time that they are covered by the statutory impunity concerning statements made during a judicial hearing.", "The allegation by the character Mr Mine, the lawyer, that ‘ what Ronald Blistier did was precisely what Jean-Marie Le Pen advocates ’, following the narrator ’ s comment – just before the paragraph containing the passage in question – that ‘ once again, everyone agrees that this trial should be that of Jean-Marie Le Pen rather than that of Ronald Blistier, otherwise it would never have had such an impact ’, shows that through the remarks attributed to his main protagonist it is in fact Mathieu Lindon who is expressing himself here with reference to the civil parties.", "This extract constitutes defamation against the civil parties.", "4. Page 136: After the defendant ’ s suicide in prison, his lawyer gives the following statement on television: ‘ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself. ’", "To describe Jean-Marie Le Pen, Chairman of the Front National, as ‘ a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies ’, impugns the honour and reputation of the two civil parties.", "This passage is part of a long television appearance by the main protagonist – the only one who, apart from his boyfriend, is portrayed in a positive light in the novel, as both characters convey, so to speak, the contradictions and values of the narrator – following the defendant ’ s suicide in prison.", "It is evident that this speech, which takes the form of an indictment, and which is presented as the only interview given to the media by the lawyer, who has previously turned down many other requests, constitutes both the synthesis and the final conclusion through which the author seeks to give his character an opportunity to express, with a certain solemnity in the context of this fiction, the author ’ s own view as a militant writer.", "Moreover, in the last two pages of the book, following the television statement, no distance whatsoever is introduced between the narrator and the remarks made.", "This extract thus constitutes defamation against the civil parties. ”", "19. The Court of Appeal further dismissed the argument that the applicants had acted in good faith, on the following grounds:", "“ Defamatory allegations are deemed to have been made in bad faith unless the defendant can show that they fulfil all of the following conditions: they must correspond to the pursuit of a legitimate aim; they must not reflect any personal animosity on his part towards the civil party; there must have been a serious preliminary investigation; and the language used must be dispassionate.", "In the present case, the legitimacy of the aim pursued by the defendants through the novel, namely ‘ to fight against Jean-Marie Le Pen effectively ’, in other words to engage in a political combat, cannot be challenged in a democratic society.", "With its claim to be a ‘ combative ’ work, the novel in question, and in particular the passages found to be defamatory, attest to patent animosity towards the civil parties. However, that animosity is explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as Chairman of the Front National. That animosity, which is not directed against the civil party in person, cannot be regarded as reprehensible per se.", "Since this is a work of fiction, the question of the seriousness of the investigation underpinning the work cannot be assessed as if it were a text intended to inform the reader of real facts or comment on such facts. However, the principle adopted for the construction of the work in issue, as can be seen explicitly from a reading of the text and as the defendants have asserted before the court, is based on the juxtaposition within an imaginary plot of, on the one hand, various fictional characters, and on the other, the Chairman of the Front National, a real figure, who represents the focus in relation to which the imaginary characters take shape and around which they revolve throughout the novel.", "Furthermore, the ideas, rhetoric, acts and gestures of Jean-Marie Le Pen are accurately described in the novel – as the defendants have claimed, producing cogent evidence to that effect – in relation to the reality of the various public manifestations of his political activity. Accordingly, it is appropriate to examine whether the use of the defamatory comments chosen by the author was preceded by an investigation sufficiently serious to justify the comments in question.", "In this connection, whilst the rhetoric and ideas attributed to the civil parties, together with the ensuing debates, are unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants have failed to adduce any specific evidence to show that the use of the wording found to be defamatory was preceded by basic verification as to the reality supposed to be evoked by that wording.", "Similarly, it cannot be said that the form of expression used in the three extracts found to be defamatory is sufficiently dispassionate : to liken Jean-Marie Le Pen to the ‘ chief of a gang of killers ’ (page 10), to assert that the murder committed by Blistier – a fictional character – was ‘ advocated ’ by Jean-Marie Le Pen – a real person – and to describe the Chairman of the Front National – a real person – as a ‘ vampire who thrives on the bitterness of his electorate, but sometimes also on their blood ’, clearly oversteps the permissible limits in such matters.", "It cannot therefore be accepted that the defendants acted in good faith.", "Lastly, the argument derived from the application of Article 10 of the European Convention on Human Rights and the Lingens v. Austria judgment of 8 July 1986, whereby ‘ a value-judgment made about a politician is by nature not susceptible of proof ’ is ineffective.", "The allegations found in the present case to be defamatory, directed against a real politician, do not merely constitute value-judgments within the meaning of the judgment of the European Court of Human Rights cited above, in a case where a journalist had described the conduct of a politician as ‘ the basest opportunism ’, ‘ immoral ’ and ‘ undignified ’. In Mr Lindon ’ s case, he accuses the civil party of certain concrete practices (describing him as the ‘ chief of a gang of killers ’, ‘ advocating the perpetration of a murder ’ and ‘ a vampire who thrives on the bitterness and the blood of his voters ’ ). ”", "4. The Court of Cassation ’ s judgment of 27 November 2001", "20. In a judgment of 27 November 2001, the Court of Cassation dismissed an appeal on points of law lodged by the first two applicants. It rejected as follows the ground based on an alleged breach of Article 10 of the Convention:", "“ ... In finding the defendants guilty of public defamation against a private individual, taking into account three extracts from the work, the judges, who made an accurate assessment of the meaning and significance of the offending writings, justified their decision without breaching the Convention provisions referred to in the ground of appeal.", "Whilst Article 10 of the Convention ... recognises, in its first paragraph, that everyone has the right to freedom of expression, that provision states, in its second paragraph, that the exercise of this right, carrying with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation of others. ... ”", "B. The conviction of Mr July (application no. 36448/02)", "1. The article published in the daily newspaper Libération", "21. In its edition of 16 November 1999, in a column entitled “ Rebonds ” ( “ reactions ” ), the daily newspaper Libération published an article signed by ninety-seven contemporary writers concerning the first two applicants ’ conviction, on charges of defamation and complicity in defamation, by the Paris Criminal Court in its judgment of 11 October 1999 (see paragraph 1 4 above). The article took the form of a petition and read as follows:", "“ Petition. The passages from the book ‘ Jean-Marie Le Pen on Trial ’ for which Mathieu Lindon and his publisher were convicted are not defamatory. We are prepared to write them in a novel. We will write against Le Pen.", "Novels cannot be granted unlimited rights. But they have the right to exist and to evoke the real world in which the author and his peers live. Mathieu Lindon and his publisher Paul Otchakovsky-Laurens were convicted of defamation against Jean-Marie Le Pen on account of four passages in the novel ‘ Jean-Marie Le Pen on Trial ’.", "To write, in a novel, that demonstrators who pay tribute to the victim of a racist murder consider that: ‘ For them, it ’ s not sufficient to call Ronald Blistier the murderer; an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too ’ is not defamatory in my view and I am prepared to write this in a novel.", "To write, in a novel, that the boyfriend of a lawyer defending a murderer who belongs to the Front National gives the lawyer this warning: ‘ He wants to frighten you, Pierrot. He wants to brand you as a member of his clan: that ’ s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they ’ ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you ’ re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don ’ t try and be clever, Pierrot. I don ’ t want them to kill you ’ is not defamatory in my view and I am prepared to write this in a novel.", "To write, in a novel, that a lawyer, in defending his client who is accused of a racist crime puts the following arguments to the court: ‘ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt ’ is not defamatory in my view and I am prepared to write this in a novel.", "To write, in a novel, that a lawyer who has poorly defended his client, a Front National member accused of a racist murder, makes the following analysis: ‘ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse the democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself ’ is not defamatory in my view and I am prepared to write this in a novel.", "If these passages are to be considered defamatory in a novel, they are also defamatory in reality. I should be sued by Jean-Marie Le Pen and convicted by a court, if they are true to their own logic, for having reproduced those extracts here. ”", "2. The Paris Criminal Court ’ s judgment of 7 September 2000", "22. It was on account of the above article that Mr Le Pen and his party summoned the third applicant to appear before the Paris Criminal Court in his capacity as publication director of Libération, alleging that he had committed the offence of public defamation against a private individual (under sections 29(1), 32(1) and 42 of the Freedom of the Press Act of 29 July 1881).", "23. In a judgment of 7 September 2000, the court found the applicant guilty of the criminal offence of defamation and sentenced him to pay a fine of FRF 15,000 ( EUR 2,286.74 ). It also awarded FRF 25,000 (EUR 3,811.23) in damages.", "The court, after observing that Libération had reproduced in extenso passages from the work that it had characterised as defamatory in its judgment of 11 October 1999, found that “ the defamatory nature of the remarks, which ha [ d ] already been found to have impugned the honour and reputation of another and ha [ d ] been repeated in the offending article, [ was ] ... not in doubt ”. As to the question of good faith, the court found that, whilst the newspaper Libération was entitled to comment on a judicial decision and to impart ideas and information on questions that formed the subject of public debate, it was nevertheless true that there was “ a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms ”. In the court ’ s view, the publication of the defamatory passages in abstracto, outside their literary context, strengthened the dishonouring force of the allegations, which were shifted to the terrain of reality and plausibility, without any debate of ideas, as the signatories of the article had emphasised in concluding: “ If these extracts are to be considered defamatory in a novel, they are also defamatory in reality. ” The court added that other newspapers had reported on the debate triggered by the publication of “ Jean-Marie Le Pen on Trial ” and the petition following the conviction of its author but had not reproduced the offending comments in extenso. It inferred that the third applicant “ could ... have reported on the offending petition and informed readers of the views of numerous writers and journalists, without, however, reiterating the offence of which Mr Lindon and his publisher had been convicted by reproducing the passages that had been found to be defamatory in the court ’ s previous decision ”.", "3. The Paris Court of Appeal ’ s judgment of 21 March 2001", "24. On 12 September 2000 the third applicant lodged an appeal against the judgment. He contended that the impugned article was part of a broader political debate concerning the Front National and its Chairman, and that the debate was intense because of events that had actually taken place. It was those events which had provided the inspiration for the novel by the first applicant, whose cause had been defended by the signatories of the petition, reacting in a democratic spirit and out of vigilance towards the far-right movement. The third applicant explained that the column “ Rebonds ” was specifically reserved for the opinions of commentators from outside the newspaper who expressed their views with the intention of triggering debate and provoking reactions among readers. He added that the column, in principle, was not supposed to be objective or impartial but to convey opinions and therefore entailed the freedom to hold those opinions. He argued that the free discussion of political matters should not be hindered by excessive requirements relating to the protection of the rights of others or the prevention of disorder.", "25. In a judgment of 21 March 2001, the Eleventh Division of the Paris Court of Appeal (consisting of Mr Charvet, President, and Judges Deletang and Waechter) upheld all the provisions of the judgment under appeal.", "The court pointed out that, in its judgment of 13 September 2000 (see paragraphs 1 6 -1 9 above), it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article, referred back to the grounds set out in the 13 September 2000 judgment, of which, it stated, the reasoning “ remain [ ed ] applicable ”. It went on to dismiss the defence of good faith on the following grounds :", "“ The existence of controversy surrounding Mr Le Pen and the Front National has been patent for many years, and that controversy has taken on a polemical aspect at certain times.", "As regards the work ‘ Jean-Marie Le Pen on Trial ’, the court found in its previous judgment that it was established that its very subject matter was the fight against the political ideas of the civil parties, which in this case had taken the form of a novel.", "Such a medium does not preclude the application of the Act of 29 July 1881 where, firstly, the characters portrayed can be identified as real people, and, secondly, the defamatory allegations against them are a reflection not of the narrative process but of the author ’ s own views.", "On the basis of that analysis, the court considered that this situation obtained in respect of the novel itself. It is all the more true for the impugned article, which is presented as a shift from fiction in two ways, being published even though the passages in question had formed the basis of a conviction and by clearly indicating that shift: ‘ If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen. ’", "The authors of the text in issue had no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks.", "The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘ chief of a gang of killers ’ or as a vampire.", "The defence of good faith cannot be admitted ... ”", "4. The Court of Cassation ’ s judgment of 3 April 2002", "26. On 23 March 2001 the third applicant appealed on points of law, claiming in particular that there had been a violation of Articles 10 and 6 of the Convention. In respect of Article 6 he contended that the Court of Appeal had already ruled on the defamatory nature of the book in question and that it had relied on that earlier judgment, so that the appeal had not been heard by an impartial tribunal but by a “ court which openly regarded itself as clearly targeted by the offending article ”.", "27. In a judgment of 3 April 2002, the Court of Cassation dismissed the appeal in the following terms:", "“ ... It is apparent from the decision appealed against that Serge July, publication director, was summoned to appear before the Eleventh Division of the Court of Appeal on a charge of public defamation against a private individual, on account of having published an article. That article incorporated certain passages from a book for which the author had previously been found guilty under section 29 of the Act of 29 July 1881 by a bench of the Court of Appeal consisting of President Charvet and Judges Blanc and Deletang.", "The appellant is not entitled to complain that Judges Charvet and Deletang sat on the bench of the appellate court before which he appeared, in so far as the participation in this case of a number of judges of the criminal division of the Court of Appeal in proceedings concerning charges brought, firstly, against the author of a defamatory text and, secondly, against the publication director who allowed certain passages from that text to be published, is not contrary to the requirement of impartiality enshrined in Article 6 § 1 of the Convention. In addition, contrary to what has been alleged, there is nothing in the judgment appealed against to suggest that the judges deemed themselves to be targeted by the offending text or that they expressed an opinion contrary to the requirement of impartiality.", "... In finding Serge July guilty ... the Court of Appeal stated that the polemical aim of a text could not absolve it from all regulation of expression, when, far from being based merely on an academic debate, its line of argument was built around reference to precise facts. The court added that, in this case, the accusations that had been made without a meaningful prior investigation were particularly serious ones, the civil party having been described as the ‘ chief of a gang of killers ’ or as a vampire.", "In these circumstances the Court of Appeal justified its decision without breaching Article 10 of the Convention ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "28. The relevant parts of the Freedom of the Press Act of 29 July 1881 provide as follows:", "Section 29", "“ It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters.", "It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact. ”", "Section 32(1)", "“ Anyone who by any of the means set out in section 23 [including ‘ written ’ and ‘ printed ’ matter and ‘ any other written medium ’ ‘ sold or distributed, or offered for sale ’ ] makes a statement that is defamatory of private individuals shall be liable on conviction to six months ’ imprisonment and a fine of 12,000 euros, or to one only of those sentences ”.", "Section 42", "“ The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press:", "1. Publication directors or publishers, irrespective of their occupation or title ... ”", "29. An individual may be defamed through the portrayal of characters in a novel or play, without it being necessary for the name of the imaginary person to correspond to that of the individual who claims to have been defamed, provided he or she is referred to in a clear manner such that the public cannot be mistaken (Paris Court of Appeal, 8 March 1897). On the other hand, the fact that the name of the imaginary person corresponds to that of a living person is not sufficient for the latter to allege defamation, even if there are certainly similarities of character and diffusion (Algiers Court of Appeal, 20 February 1897). Such situations mostly give rise to proceedings for civil liability and damages are awarded whenever there has been prejudice, that is to say when the public has unavoidably been led to associate the living person with the imaginary person and where an error of judgment can be attributed to the author (Paris Court of Appeal, 24 April 1936, and Paris Court of Appeal, 8 November 1950). ( Source: Juris -Classeur de droit pénal, 1996, Presse -Diffamation, fascicule 90, “ 86 ‑ personnages littéraires ” ( literary characters ) ).", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "30. In view of the connection between the applications as regards the facts and the substantive questions that they both raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "31. The applicants complained that there had been a violation of their right to freedom of expression on account of their conviction for defamation or complicity in defamation. They relied on Article 10 of the Convention, which reads as follows:", "“ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”", "A. The parties ’ submissions", "1. The applicants", "32. The first two applicants complained that their conviction for defamation and complicity in defamation on account of the publication of Le Procès de Jean-Marie Le Pen ( “ Jean-Marie Le Pen on Trial ” ) had constituted a “ penalty ” that was not “ prescribed by law ” within the meaning attributed to that notion by the Court ’ s case-law. In their submission, notwithstanding the apparent precision of section 29(1) of the Act of 29 July 1881 upon which it had been based and the extensive case-law concerning defamation, their conviction had not been “ foreseeable ”. Their main criticism of the Paris Court of Appeal was that it had sought to ascertain the author ’ s thoughts from the words of fictional characters. This had, moreover, depended on whether or not a particular character was presented “ positively ”. In examining the offending passages of the novel in such a way the court had used a process of deduction, which, they claimed, was a subjective and random approach that did not allow writers to predetermine the limits to authorised speech with which they were supposed to comply. As a result, and since that approach had not been applied with the same stringency to all the impugned passages, the judgment and reasoning of the Court of Appeal had in a number of respects been inconsistent and incoherent.", "Secondly, the applicants considered that such a “ penalty ” had not been “ necessary in a democratic society ”. They pointed out in particular that their conviction as author and publisher of a text which was purely fictional, and which was presented to readers as such, had not been justified by any “ pressing social need ”. They laid emphasis on the novelist ’ s freedom of expression and, referring in particular to Lingens ( cited above ), on the fact that the book in question concerned a politician. They added that the domestic courts had distorted the remarks in question and that the “ penalty ” inflicted, being criminal in nature, had been disproportionate.", "33. The third applicant further complained that his conviction for defamation on account of the publication in the newspaper Libération of a petition signed by ninety-seven writers, accompanied by certain passages from the novel “ Jean-Marie Le Pen on Trial” that had been found to be defamatory by the Paris Criminal Court, had not been “ necessary ” within the meaning of Article 10 of the Convention. Referring in particular to the importance of the freedom of the press in a democratic society, and stressing that the impugned article had been published in the context of a political debate on a matter of general concern, he submitted that his conviction had been all the more disproportionate to the aim pursued, namely the protection of Mr Le Pen ’ s reputation, as Mr Le Pen himself was inclined to be provocative and to use offensive language when expressing himself through the media.", "2. The Government", "34. The Government did not dispute the fact that the applicants ’ conviction constituted interference with the exercise of their right to freedom of expression but contended that it was “ prescribed by law ”, pursued a “ legitimate aim ” and, having regard to the margin of appreciation afforded to States parties in such matters, was “ necessary in a democratic society ” to achieve that aim, in accordance with the second paragraph of Article 10.", "35. On the first point, the Government pointed out that the applicants ’ conviction had been based on sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881.", "The Government dismissed the argument of the first two applicants that the application of those provisions to their case had not been foreseeable, indicating in particular that there had been previous examples of proceedings for defamation committed through a literary work (they cited a judgment of the Paris Court of Appeal from 8 March 1897). Moreover, in the Government ’ s submission, the second applicant had admitted during the appeal proceedings that he had been aware of the risk that, on publishing the book in question, Mr Le Pen might bring proceedings against him. As to the allegedly inconsistent criteria on which the domestic courts had based their decisions, that question did not relate to the foreseeability of the law but to whether the interference had been necessary.", "36. As to the second point, the Government argued that the interference had sought to ensure the “ protection of the reputation or rights of others ” – those of Mr Le Pen and the Front National – this being one of the legitimate aims enumerated in the second paragraph of Article 10.", "37. As to the necessity and proportionality of the interference in the case of the first two applicants, the Government considered that the tribunals of fact had coherently analysed the defamatory nature of the relevant passages from the book and had based their decisions on “ relevant ” and “ sufficient ” reasons. They further emphasised that the courts had not convicted the first two applicants on account of the aversion expressed in the impugned work towards the ideas defended by the Front National and its Chairman, but only after weighing up the various interests at stake. Whilst the Government were aware that the limits of acceptable criticism were broader where politicians were concerned, the offending comments had clearly damaged the reputation of the civil parties. Moreover, in so far as they were not value judgments but allegations of fact susceptible of proof, the conviction of the applicants on the grounds, that they had not carried out a “ basic verification ” of the reality of the allegations before publishing them – when they had been able to do so – was compatible with Article 10 of the Convention. The Government added that the applicants had been given the opportunity to prove their good faith, that the penalties imposed on them and the amount of damages awarded against them were not disproportionate, and that the courts had ordered neither the seizure nor the destruction of the book.", "The Government arrived at the same conclusion in the case of the third applicant. In their submission, the domestic courts had struck a fair balance between the various interests at stake ( respect for free discussion of political ideas by the press, protection of the reputation of others), having regard to the fact that the reputation-damaging remarks were serious and had been published in a national newspaper with a large circulation. They added that the publication of the impugned petition had gone beyond the level of participation in a political controversy surrounding the far right and in fact consisted in the attribution to Mr Le Pen and his party of unproven offences. In actual fact, by publishing the extracts from the book for which the first two applicants had been convicted, the third applicant had sought to contest the defamatory nature of the impugned allegations and therefore to give credence to the offending remarks. In doing so he had failed to fulfil the obligation of care and moderation inherent in the “ duties and responsibilities ” of journalists. The Government added that the domestic courts had not punished the third applicant for criticising the conviction of the first two applicants, or for informing the public that the signatories of the impugned petition supported them, but for doing so in a way that constituted a reiteration of the offence.", "38. The Government concluded that the applicants ’ complaints that there had been a violation of Article 10 of the Convention were manifestly ill-founded and therefore inadmissible.", "B. The Court ’ s assessment", "1. Admissibility", "39. The Court observes that this aspect of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible.", "2. Merits", "40. It is not in dispute between the parties that the applicants ’ conviction constituted “ interference by public authority ” with their right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was “ prescribed by law ”, whether it pursued one or more of the legitimate aims listed in that paragraph and whether it was “ necessary in a democratic society ” in order to achieve that aim or aims.", "(a) “ Prescribed by law ”", "41. The Court reiterates that a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.", "The Court further reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (see, for example, Cantoni v. France, 15 November 1996, § 35, Reports of Judgments and Decisions 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI ).", "42. In the present case, the legal basis for the applicants ’ conviction can be found in accessible and clear provisions, namely sections 29 and 32 of the Act of 29 July 1881. The first of these provisions states in particular that it is “ defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged ” and according to case-law this can be done through a work of fiction when the individual who claims to have been defamed is referred to in a clear manner ( see paragraphs 28-29 above).", "Whilst the case-law on this specific point appears dated and rather scant – the Government confined themselves to citing a judgment of the Paris Court of Appeal from 8 March 1897 – the Court must take account of the fact that the first and second applicants are respectively an author and the chairman of the board of directors of a publishing company. Being professionals in the field of publishing it was incumbent on them to apprise themselves of the relevant legal provisions and case-law in such matters, even if it meant taking specialised legal advice. Accordingly, since the novel in issue specifically named Mr Le Pen and the Front National, they could not have been unaware that if they published it there was a risk that defamation proceedings might be brought against them by Mr Le Pen and his party on the above-mentioned legal basis.", "As to the criteria applied by the Paris Court of Appeal in assessing whether or not the impugned passages of the novel were defamatory, this question in reality relates to the relevance and sufficiency of the grounds given by the domestic courts to justify the impugned interference with the right of the first two applicants to freedom of expression. The Court will therefore examine this question when it comes to assess whether the interference was “ necessary ”.", "43. In conclusion, the Court considers that the contention of the first two applicants that they were unable to foresee “ to a reasonable degree ” the consequences that the publication of the book was liable to have for them in the courts is untenable. It therefore finds that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention.", "(b) Legitimate aim", "44. The Court finds that the interference unquestionably pursued one of the legitimate aims set out in paragraph 2 of Article 10: the protection of “ the reputation or rights of others ”, namely of Jean -Marie Le Pen and the Front National; moreover, this is not a matter of dispute between the parties.", "(c) Necessary in a democratic society", "(i) General principles", "45. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "The adjective “ necessary ”, within the meaning of Article 10 § 2, implies the existence of a “ pressing social need ”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by Article 10.", "The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient ” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004 ‑ XI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; and Mamère v. France, no. 12697/03, § 19, ECHR 2006 ‑ XIII ).", "46. There is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance (see Brasilier v. France, no. 71343/01, § 41, 11 April 2006 ) – or in matters of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV, and Brasilier, cited above).", "Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see, for example, Lingens, cited above, § 42; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 40, 27 May 2004; and Brasilier, cited above).", "(ii) Application of the above principles", "( α ) The first two applicants", "47. As observed by the Paris Court of Appeal in its judgment of 13 September 2000, the book whose publication resulted in the applicants ’ conviction for defamation and complicity in defamation is a “ novel ”, a “ creation of the imagination ” (see paragraph 17 above). A novel is a form of artistic expression, which falls within the scope of Article 10 in that it affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Those who create or distribute a work, for example of a literary nature, contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression (see, among other authorities, Karataş v. Turkey [GC], no. 23168/94, § 49, ECHR 1999 ‑ IV, and Alınak v. Turkey, no. 40287/98, §§ 41-43, 29 March 2005).", "Furthermore, in assessing whether the interference was “ necessary ” it should be borne in mind that a novel is a form of artistic expression that, although potentially maintaining its readership for a longer period, appeals generally to a relatively narrow public compared with the print media ( in this respect see Alınak, cited above, § 41). Consequently, the number of persons who became aware of the remarks in issue in the present case and, accordingly, the extent of the potential damage to the rights and reputation of Mr Le Pen and his party, were likely to have been limited.", "48. The impugned novel, which was inspired by real events but adds fictional elements, recounts the trial of a Front National militant, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. Published under the title Le Procès de Jean-Marie Le Pen (“Jean-Marie Le Pen on Trial”), it openly raises questions about the responsibility of the Front National and its Chairman in the growth of racism in France and about the difficulty of combating this scourge ( see paragraphs 11-12 above). The work therefore unquestionably relates to a debate on a matter of general concern and constitutes political and militant expression, hence this is a case where a high level of protection of the right to freedom of expression is required under Article 10. The margin of appreciation enjoyed by the authorities in assessing the “ necessity ” of the penalty imposed on the applicants was thus particularly limited ( see paragraph 46 above; see also Steel and Morris, §§ 88-89, cited above, and Mamère, cited above, § 20).", "49. The Court notes at the outset that the examination of the applicants ’ case by the Paris Court of Appeal was duly carried out in this kind of perspective. In its judgment of 13 September 2000, the Court of Appeal found that to ask the question “ How can Jean-Marie Le Pen be fought effectively? ” was, “ even in a novel, ... not per se defamatory against him ” and that “ the legitimacy of the aim pursued by the defendants through the novel, namely ‘ to fight against Jean-Marie Le Pen effectively ’, in other words to engage in a political combat, [could not ] be challenged in a democratic society ”. The court admittedly noted that “ [w] ith its claim to be a ‘ combative ’ work, the novel in question, and in particular the passages found to be defamatory, attest [ed] to patent animosity towards the civil parties ”. It nevertheless found that this animosity, being “ explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as chairman of the Front National ”, was “ not directed against the civil party in person ” and “[ could not ] be regarded as reprehensible per se ” ( see paragraphs 17-19 above).", "50. It thus appears that the penalty imposed on the applicants by the domestic court was not directed against the arguments expounded in the impugned novel but only against the content of certain passages that were found to be damaging to “ the honour or reputation ” of the Front National and its Chairman within the meaning of section 29 of the Act of 29 July 1881. Moreover, whilst the initial proceedings against the applicants in the criminal court concerned six passages from the novel ( see paragraph 13 above), they were ultimately convicted on account of the following three passages alone:", "[ page 10: a view attributed by the author to anti-racist demonstrators who have gathered outside the law courts] “ ... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the leader of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too. ”", "[ pages 105- 06: here the lawyer is addressing the court] “ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt. ”", "[ page 136: a statement by the defendant ’ s lawyer on television after his client ’ s suicide in prison ] “ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself. ”", "51. However, the applicants criticised the Court of Appeal for having, for the purposes of its examination of their case, sought to ascertain the author ’ s thoughts from the remarks of fictional characters in a fictional situation and for reaching its conclusions as to the defamatory nature of the passages in issue on the basis of whether the author had distanced himself from those remarks or not. In the applicants ’ submission, such an approach led to the imprisonment of literature in a set of rigid rules at odds with the freedom of artistic creation and expression.", "The Court does not share that view. It considers, on the contrary, that the criteria applied by the Paris Court of Appeal in assessing whether or not the passages in issue were defamatory complied with Article 10 of the Convention.", "In this connection the Court observes that, in its judgment of 13 September 2000, the Court of Appeal pointed out first of all that all writings, even novelistic, were capable of “ impugn[ing] the honour or reputation of [a] person ” within the meaning of section 29 of the Freedom of the Press Act of 29 July 1881 and therefore of resulting in a conviction for defamation. That approach is consistent with Article 10 of the Convention. Admittedly, as noted above ( see paragraph 47), anyone who, for example, creates or distributes a literary work contributes to an exchange of ideas and opinions which is essential for a democratic society, hence the obligation on the State not to encroach unduly on their freedom of expression. This is especially the case where, like the novel in issue in the present case, the work constitutes political or militant expression ( see paragraph 48 above). Nonetheless, novelists – like other creators – and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, “ duties and responsibilities ”.", "52. The Court further observes that, in assessing whether or not the passages from the novel it was called upon to examine were defamatory, the Court of Appeal sought to determine whether they effectively “ impugned the honour and reputation ” of Mr Le Pen and the Front National. Inasmuch as the Court is entitled to judge (see, for example, Mamère, cited above, § 22), the domestic court ’ s findings on this point cannot be criticised in view of the virulent content of the impugned passages and the fact that they specifically named the party and its chairman.", "Lastly, it is apparent from the judgment of 13 September 2000 that, in reality, it was for the author ’ s benefit that the Court of Appeal sought additionally to determine his thoughts. It considered that, where remarks “ impugn[ing] the honour and reputation of [a] person ” were made by a narrator or by characters in a “ work of fiction ”, only those that reflected the thoughts of the author were punishable under the Act of 29 July 1881, and not those remarks from which the author really distanced himself in his work. As a result, the application of this criterion led the court to find that one of the four passages referred to it was not defamatory.", "53. The Court of Appeal further verified whether the applicants were entitled to rely on good faith as a defence, which would be the case, under domestic law, if the allegations considered defamatory corresponded to the pursuit of a legitimate aim, if they did not reflect any personal animosity, if they followed a serious investigation, and if they were made using dispassionate language ( see paragraph 19 above).", "However, the court was unable to accept that defence as it found that, unlike the first two of these conditions, the last two were not satisfied.", "54. As to the seriousness of the investigation preceding the publication of the novel, the Court of Appeal stated that “ [s]ince this [was] a work of fiction, [that] question [could] not be assessed as if it were a text intended to inform the reader of real facts or comment on such facts ”. The court nevertheless considered this criterion relevant in the present case, since the novel juxtaposed reality and fiction – observing in this connection that, even though the plot was an imaginary one, the Chairman of the Front National, a real figure, represented the “ focus ” around which the imaginary characters revolved and in relation to which they took shape – and since the ideas, rhetoric, acts and gestures of Mr Le Pen had been very accurately described in the novel. Applying this test, the Court of Appeal found that “ whilst the rhetoric and ideas attributed to [Mr Le Pen and his party], together with the ensuing debates, [were] unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants [had] failed to adduce any specific evidence to show that the use of the wording found to be defamatory had been preceded by basic verification as to the reality supposed to be evoked by such wording ”.", "55. The Court considers that this reasoning is consistent with its own case-law.", "It reiterates in this connection that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Pedersen and Baadsgaard, cited above, § 76).", "Generally speaking there is no need to make this distinction when dealing with extracts from a novel. It nevertheless becomes fully pertinent when, as in the present case, the impugned work is not one of pure fiction but introduces real characters or facts.", "In the present case, firstly, it was all the more acceptable to require the applicants to show that the allegations contained in the passages from the novel that were found to be defamatory had a “ sufficient factual basis ” as they were not merely value judgments but also allegations of fact, as the Court of Appeal indicated. Secondly, the Court of Appeal adopted a measured approach, criticising the applicants not for failing to prove the reality of the allegations in question but for failing to make a “ basic verification ” in that connection.", "56. Having regard to the content of the offending passages, the Court also considers that the Court of Appeal ’ s finding that they were not sufficiently “ dispassionate ” is compatible with its case-law.", "It is true that, whilst an individual taking part in a public debate on a matter of general concern – like the applicants in the present case – is required not to overstep certain limits as regards – in particular – respect for the reputation and rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère, cited above, § 25).", "It is also true that the limits of acceptable criticism are wider as regards a politician – or a political party – such as Mr Le Pen and the Front National – as such, than as regards a private individual ( see paragraph 4 6 above). This is particularly true in the present case as Mr Le Pen, a leading politician, is known for the virulence of his speech and his extremist views, on account of which he has been convicted a number of times on charges of incitement to racial hatred, trivialising crimes against humanity, making allowances for atrocities, apologia for war crimes, proffering insults against public figures and making offensive remarks. As a result, he has exposed himself to harsh criticism and must therefore display a particularly high degree of tolerance in this context (see, mutatis mutandis, Oberschlick v. Austria (no. 2), 1 July 1997, §§ 31-33, Reports 1997 ‑ IV; Lopes Gomes da Silva v. Portugal, no. 37698/97, § 35, ECHR 2000 ‑ X; and Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 37, 27 October 2005).", "57. The Court nevertheless considers that in the present case the Court of Appeal made a reasonable assessment of the facts in finding that to liken an individual, though he be a politician, to the “ chief of a gang of killers ”, to assert that a murder, even one committed by a fictional character, was “ advocated ” by him, and to describe him as a “ vampire who thrives on the bitterness of his electorate, but sometimes also on their blood ”, “ oversteps the permissible limits in such matters ”.", "The Court moreover considers that, regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.", "The Court will further have regard to the nature of the remarks made, in particular to the underlying intention to stigmatise the other side, and to the fact that their content is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate, even in respect of a figure who occupies an extremist position in the political spectrum (see, mutatis mutandis, Sürek (no. 1), cited above, §§ 62 - 63).", "58. The Court accordingly arrives at the conclusion that the “ penalty ” imposed on the applicants was based on “ relevant and sufficient ” reasons.", "59. As regards the “ proportionality ” of the penalty, the Court notes that the applicants were found guilty of an offence and ordered to pay a fine, so in that respect alone the measures imposed on them were already very serious. However, firstly, in view of the margin of appreciation left to Contracting States by Article 10 of the Convention, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004 ‑ II). Secondly, the amount of the fine imposed on the applicants was moderate: EUR 2,286.74 (each); the same finding has to be made as regards the damages they were ordered jointly and severally to pay to each of the civil parties: EUR 3,811.23. The nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Sürek (no. 1), cited above, § 64).", "In these circumstances, and having regard to the content of the impugned remarks, the Court finds that the measures taken against the applicants were not disproportionate to the legitimate aim pursued.", "60. In conclusion, the domestic court could reasonably find that the interference with the exercise by the applicants of their right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of Mr Le Pen and the Front National.", "(β) The third applicant", "61. The third applicant was convicted of defamation in his capacity as publication director of Libération, on account of the publication in that newspaper ’ s column “ Rebonds ” of a petition criticising the conviction of the first two applicants on charges of defamation and complicity in defamation by the Paris Criminal Court on 11 October 1999. The petition further reproduced the passages of the novel that had been found to be defamatory by that court and challenged that characterisation ( see paragraph 21 above).", "62. In publishing the petition the daily newspaper Libération reported on the conviction of the first two applicants by the Criminal Court for the publication of “ Jean-Marie Le Pen on Trial”, on the support given to them by the ninety-seven writers who signed the petition, and on the opinion of those writers that the impugned passages were not defamatory. There is therefore no doubt – as the Government have not in fact disputed – that the article was published in a context of information and ideas imparted on a matter of public interest, namely the controversies surrounding a party of the far right and its Chairman – a subject of political debate – and the conviction of an author and a publisher for the publication of a book which was critical of that party and of its Chairman. Since freedom of the press is thus in issue, this is a case which attracts a particularly high level of protection of freedom of expression under Article 10.", "In that connection the Court points out once again the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “ public watchdog ”. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, for example, Pedersen and Baadsgaard, cited above, § 71).", "63. In its judgment of 21 March 2001 in the case concerning the third applicant, the Paris Court of Appeal pointed out that in its judgment of 13 September 2000 it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article into which those passages had been incorporated, referred back to the grounds set out in the 13 September 2000 judgment, the reasoning behind which, it stated, “ remain[ed] applicable ” ( see paragraph 25 above).", "In view of its own findings on this matter ( see paragraph 50 above), the Court considers those grounds “ relevant and sufficient ”.", "64. The Court of Appeal then dismissed the defence of good faith. In this connection it found that the impugned petition, even more than the novel in issue, reflected the “ direct thoughts ” of its authors since they had presented it as a shift from fiction in two ways : firstly by publishing it even though the passages in question had formed the basis of a conviction; and secondly by indicating : “ If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen ”. The court found that, in doing so, the authors of this text had had no other aim than that of showing their support for the first applicant “ by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ”. The Court of Appeal went on to explain: “ The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘ chief of a gang of killers ’ or as ‘ a vampire ’ ”.", "65. It thus appears that the third applicant was not punished for reporting on the conviction of the first two applicants for the publication of “ Jean-Marie Le Pen on Trial”, on the support given to them by the ninety-seven writers who signed the petition, or on the opinion of those writers that the impugned passages were not defamatory. Nor was he convicted on the ground that Libération had failed to distance itself from the content of the petition (see, for example, Radio France and Others and Pedersen and Baadsgaard, both cited above, § 37 and § 77 respectively) or for reproducing or criticising a judicial decision – a conviction which would have been difficult to reconcile with Article 10 of the Convention. He was actually convicted because Libération had thus published a petition which reproduced extracts from the novel containing “ particularly serious allegations ” and offensive remarks, and whose signatories, repeating those allegations and remarks with approval, denied that the extracts were defamatory in spite of a finding to that effect against the first two applicants.", "66. The Court considers that, within the limits indicated above, the reasoning of the Court of Appeal is consonant with its own findings that the impugned writings were not merely value judgments but also allegations of fact ( see paragraph 5 4 above) and that the Court of Appeal had made an acceptable assessment of the facts in reaching its conclusion that the writings were not sufficiently dispassionate ( see paragraphs 5 6-57 above). On this latter point in particular, having regard to the content of the impugned passages of “ Jean-Marie Le Pen on Trial”, to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation and to the fact that it was not necessary to reproduce them in order to give a complete account of the conviction of the first two applicants and the resulting criticism, it does not appear unreasonable to consider that the third applicant overstepped the limits of permissible “ provocation ” by reproducing those passages.", "67. Furthermore, this reasoning is consistent with the boundaries that the press must not overstep, in particular as regards the protection of the reputation and rights of others. The Court reiterates in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “ reliable and precise ” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “ duties and responsibilities ”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “ duties and responsibilities ” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “ rights of others ”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, for example, Pedersen and Baadsgaard, cited above, § 78).", "68. Lastly, having regard to the moderate nature of the fine and the damages that the third applicant was ordered to pay ( a fine of EUR 2,286.74 and an award of EUR 3,811.23 to each of the two civil parties), to the content of the impugned writings and to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation, the Court finds that the impugned interference was proportionate to the aim pursued.", "69. In view of the foregoing, the Court considers that the domestic court could reasonably find that the interference with the exercise by the applicant of his right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of Mr Le Pen and the Front National.", "(d) Conclusion", "70. In conclusion, there has been no violation of Article 10 of the Convention either in respect of the first two applicants or in respect of the third applicant.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "71. The third applicant contended that he had not been heard by an “ impartial ” tribunal within the meaning of Article 6 § 1 of the Convention, which provides as follows:", "“ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ”", "A. Arguments of the parties", "72. The third applicant pointed out that the article of 16 November 1999, on account of which he had been convicted of defamation, had reproduced in full a petition openly criticising the conviction of the first two applicants for defamation and complicity in defamation by the Paris Criminal Court in a judgment upheld by the Paris Court of Appeal on 13 September 2000. He complained that two out of the three judges on the bench of the Paris Court of Appeal which ruled on his case had also sat on the bench which previously convicted the first two applicants. He emphasised that, according to the judgment given in his case by that court on 21 March 2001, the court had simply referred to its first decision to justify the second, at least as regards the characterisation of the impugned remarks as defamatory.", "In his submission, under those circumstances the two judges concerned had necessarily had a preconceived idea and thus he had not been heard by an impartial tribunal. This was all the more true as the judgment given in his case by the Paris Court of Appeal had criticised the authors of the petition for “ repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ”, thus indicating, in the applicant ’ s view, that the judges had felt overtly and personally targeted by the impugned article.", "73. The Government rejected that argument.", "In their submission, the indication by the Court of Appeal that the authors of the petition had “ repeat[ed] with approval, out of defiance, all the passages that had been found defamatory by the court ” could not mean that the judges had felt overtly and personally targeted by the impugned article. The attribution of this passage to the two judges in question moreover amounted to speculation: it was in reality an objective conclusion arrived at on reading the petition. The Government further argued that the applicant had not adduced any evidence of bias on the part of those judges.", "The Government went on to observe that the third applicant ’ s case not only post-dated that of the first two applicants but was also a separate case. The parties were not the same and the case was not the same because it did not concern the same offending acts. In their submission, there was no overlap between the legal questions raised in each case either: one raised the question of the role of fiction in the determination of the offence of defamation, whilst the other concerned the applicant ’ s duty of verification and moderation in his capacity as head of the editorial staff of the newspaper Libération.", "The Government added that, in the third applicant ’ s case, the judges of the Court of Appeal had not simply referred to the decision taken in the case of the first two applicants, but had taken other factors into account, in particular the fact that the article had been published outside any literary context and without any debate of ideas. They pointed out that, according to the Court ’ s case-law, the simple fact that a judge had already ruled on similar but separate offences could not in itself call the impartiality of that judge into question.", "B. The Court ’ s assessment", "1. Admissibility", "74. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible.", "2. Merits", "75. The Court reiterates that impartiality, within the meaning of Article 6 § 1 of the Convention, normally denotes absence of prejudice or bias. There are two tests for assessing whether a tribunal is impartial: the first consists in seeking to determine a particular judge ’ s personal conviction or interest in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, for example, Gautrin and Others v. France, 20 May 1998, § 58, Reports 1998 ‑ III, and Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII).", "76. In applying the first test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, Padovani v. Italy, 26 February 1993, § 26, Series A no. 257 ‑ B, and Kyprianou, cited above, § 119). The third applicant argued in this connection that the reasoning in the judgment of the Paris Court of Appeal of 21 March 2001 to the effect that “ [t]he authors of the [petition] had [had] no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ” had shown that the two judges in question had felt overtly and personally targeted by the offending article.", "The Court does not share that view. In its opinion, this was simply one of the factors that the Court of Appeal took into account in assessing whether the applicant had acted in good faith, without in fact drawing any conclusion from it. In reality, the third applicant was not convicted because he had published a text that challenged the first two applicants ’ conviction for defamation, or because he had thus shown support for the petitioners ’ “ defiance ”, or because he had criticised the judges in question, but because he had, without a proper preliminary investigation, disseminated a text containing “ particularly serious allegations ” and offensive remarks. Moreover, the Court is unable to find, in the grounds of the judgment of 21 March 2001, the slightest indication that those judges might have felt personally targeted by the offending article.", "There is thus no evidence to suggest that the two judges in question were influenced by personal prejudice when they passed judgment.", "77. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see, for example, Gautrin and Others and Kyprianou, both cited above, § 58 and § 118 respectively).", "In the present case, the fear of a lack of impartiality stemmed from the fact – moreover a proven one – that two out of the three judges on the bench of the Paris Court of Appeal which upheld the third applicant ’ s conviction for defamation on account of the publication of the impugned petition had previously, in the case of the first two applicants, ruled on the defamatory nature of three of the offending passages from the novel which were cited in the petition.", "The Court understands that this situation may have aroused doubts in the third applicant ’ s mind as to the impartiality of the “ tribunal ” which heard his case, but considers that such doubts are not objectively justified.", "78. The Court notes that, even though they were connected, the facts in the two cases differed and the “ accused ” was not the same: in the first case the question was whether the publisher and author, by publishing certain passages from “ Jean-Marie Le Pen on Trial”, had been guilty of the offence of defamation and of complicity in that offence; in the second, the court had to decide whether, in a journalistic context, the publication director of Libération had committed the same offence by publishing the text of a petition which reproduced those same passages, and whose signatories, repeating them with approval, denied that they were defamatory in spite of the finding to that effect against the publisher and author (see, a fortiori, Craxi v. Italy (dec.), no. 63226/00, 14 June 2001). It is moreover clear that the judgments delivered in the case of the first two applicants did not contain any presupposition as to the guilt of the third applicant (ibid.).", "79. Admittedly, in the judgment given on 21 March 2001 in the third applicant ’ s case, the Paris Court of Appeal referred back, in respect of the defamatory nature of the impugned passages, to the judgment that it had given on 13 September 2000 in the case of the first two applicants. However, in the Court ’ s view this does not objectively justify the third applicant ’ s fears as to a lack of impartiality on the part of the judges. The first judgment of the Court of Appeal, dated 13 September 2000, had found to be defamatory certain passages of the book written by the first applicant and published by the second. On this point that judgment had become res judicata. The second judgment of the Court of Appeal, dated 21 March 2001, was bound to apply that authority to this aspect of the dispute, whilst the question of the good or bad faith of the third applicant, who was responsible for the publication of a petition approving that book and criticising the conviction of the first two applicants, remained open and had not been prejudiced by the first judgment. It would therefore be excessive to consider that two judges who sat on the bench which successively delivered the two judgments in question could taint the court ’ s objective impartiality. In reality, as regards the characterisation of the text as defamation, any other judge would have been bound by the res judicata principle, which means that their participation had no influence on the respective part of the second judgment. And as regards the issue of good faith, which was a totally different issue in the two cases even though they were connected, there is no evidence to suggest that the judges were in any way bound by their assessment in the first case (see, mutatis mutandis, Thomann v. Switzerland, 10 June 1996, § 35, Reports 1996 ‑ III).", "80. Lastly, the present case is manifestly not comparable to that of San Leonard Band Club v. Malta (no. 77562/01, § 63, ECHR 2004 ‑ IX), where the trial judges had been called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, that is to say, to judge themselves and their own ability to apply the law.", "81. Consequently, any doubts the third applicant may have had as regards the impartiality of the Court of Appeal when it ruled in the second case cannot be regarded as objectively justified.", "82. In conclusion, there has been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1952 and lives in Tarnów, Poland.", "6. The applicant is a gynaecologist. In August 1995 he set up a company which prepared medical reports at his clients ’ request.", "7. On 12 March 1996 the applicant wrote a report entitled “Civil opinion” ( opinia cywilna ) on the treatment that Mr J.M. had undergone in the Regional Hepatology Clinic in Tarnów. The opinion described, in a detailed manner, the history of Mr J.M. ’ s medical treatment since the beginning of the 1980s. The report was based on Mr J.M. ’ s medical file obtained from the clinics of hepatology and dermatology where he had received treatment. The applicant also relied on the results of a recent medical examination, a biopsy, carried out at the applicant ’ s initiative by the Cracow University Medical Academy. In his report the applicant established that the patient had been receiving treatment since 1983 at the Tarnów Clinic. However, in spite of the fact that his health had deteriorated and that he had been developing symptoms of liver damage, no specialised examination, that is, a biopsy, had been carried out. A recent liver biopsy, undertaken upon the applicant ’ s recommendation at the Cracow University Medical Academy, had shown that the patient was suffering from aggressive and chronic hepatitis and cirrhosis ( przewlekłe agresywne zapalenie wątroby z marskością wątroby ). The applicant considered that the damage to Mr J.M. ’ s health, due to both his liver condition and dermatological problems, amounted to 90% thus making him eligible to receive the highest group of invalidity allowance. With regard to the treatment received at the Tarnów Hepatology Clinic the applicant ’ s report stated:", "“ ... Despite [the patient ’ s] chronic suffering, of which he had complained constantly during his regular visits, and which was confirmed by examinations indicating a chronic liver condition, the employees of the Clinic had failed to take the actions [ necessary] for the health care of [ the patient ] and his diagnosis. So, despite indications, adequate diligence while diagnosing, informing and providing health care to [ the patient ] was not displayed. ”", "The opinion also dealt with the treatment of Mr J.M. ’ s dermatological problems at the Tarnów Dermatology Clinic and concluded that it had been proper and diligent.", "8. On 2 December 1996 the Tarnów Regional Attorney for Professional Liability ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ) instituted disciplinary proceedings against the applicant. He was charged with unethical conduct, reference being made to the fact that the applicant ’ s opinion had discredited the doctors who had been treating the patient. The Regional Attorney relied on Article 52 of the Polish Code of Medical Ethics ( Kodeks Etyki Lekarskiej ). Moreover, according to the Regional Attorney, in assessing a complicated therapy in which he did not specialise, the applicant had overstepped his professional competences. In his application of 10 March 1997 lodged with the Tarnów Regional Medical Court ( Okręgowy Sąd Lekarski ), in which he asked for a disciplinary punishment to be imposed on the applicant, the Attorney stated:", "“In the present case the Attorney established that Dr Ryszard Frankowicz, by preparing and giving the patient an opinion in which he included judgments on the professional conduct of other doctors (working in the Tarnów Hepatology Clinic), obviously violated the well-established medical society rules of proper conduct between doctors.", "Unfavourable arguments and analysis of professional actions expressed by one doctor in front of a patient always clearly discredit the doctor under scrutiny ... ”", "“The Medical Council of the Tarnów Regional Medical Chamber finds that the entirety of the public behaviour of [ the applicant] has no support in the medical profession and does not serve the rightly understood well-being of the patient. The disciplinary bodies of the Chamber will assess their attitudes in detail and draw appropriate conclusions ( wyciągną stosowne wnioski ). The Medical Council decided to take a position on the public activities of the above-mentioned doctors and the manner in which they have been exercising the medical profession given the exceptional departure from recognised and generally accepted rules and given the possibility of their manipulating the perceptions and the behaviour of the local community.”", "9. On 11 June 1997 the Tarnów Regional Medical Court ( Okręgowy Sąd Lekarski ) held a hearing. The court was composed of three members, all doctors. The applicant, his wife, their representative and a representative of the Office of the Regional Attorney of Professional Liability were present at the hearing. However, soon after the opening of the hearing the applicant decided to leave the courtroom, objecting to the fact that the disciplinary court had allegedly violated a time-limit for examination of a case. The hearing continued in the applicant ’ s absence as he had not decided to return and the court regarded his absence as unjustified.", "10. On 17 June 1997 the Regional Medical Court found the applicant guilty of unethical conduct. The Court considered that the applicant, in his report, had expressed negative opinions of the professional conduct of doctors concerned and that he had conveyed these directly to the patient. In so doing, he had discredited the doctors in the eyes of the patient. His behaviour was therefore contrary to the principle of professional solidarity and, consequently, to the provisions of Article 52 of the Code of Medical Ethics. The court did not examine the truthfulness of the opinion at issue as it found that the question of whether it “reflected the reality” was “of no importance” for finding a violation of this provision of the Code. The disciplinary court also found that the applicant had violated Article 10 of the Code, as he had written an opinion concerning a branch of medicine in which he was not a specialist. The court found him guilty as charged and sentenced him to a reprimand ( skazuje na karę nagany ).", "11. On 17 June 1997 the applicant challenged all members of the court, complaining that they had not been impartial. The applicant submitted that the independence and impartiality of the members of the disciplinary court had been open to doubt because it was possible that the Tarnów Governor could have put pressure on them. In addition the applicant complained about the way the hearing had been conducted, submitting that the President of the court had prevented him from putting all his questions and had dismissed his motions. On 20 June 1997 the Tarnów Regional Medical Court, sitting in a different composition, dismissed the applicant ’ s challenge as manifestly ill-founded.", "12. The applicant appealed on 30 June 1997. He argued that a doctor had a right to express freely his own opinion in conformity with his medical knowledge and his conscience and to inform his patient if he believed that the latter had been incorrectly treated or wrongly diagnosed. The purpose of a doctor ’ s work was the well-being of the patient and not professional solidarity with other doctors. The applicant further complained that his challenge to the members of the Regional Medical Court, and application to transfer the case to another town, had been dismissed. He submitted that two of the three members of the court were senior managers of the hospitals thus susceptible to pressure from the Tarnów Governor ’ s office, the latter often being criticised by the applicant ’ s association.", "13. On 29 May 1998 the Supreme Medical Court ( Naczelny Sąd Lekarski ), upheld the first-instance court ’ s decision. The court considered that the applicant ’ s actions were highly reprehensible and harmful not only to the medical profession but also to the patient, as the opinion gave him to believe, groundlessly, that he had been the victim of an injustice. The court also firmly rejected the applicant ’ s suggestion that his conviction had been the result of political pressure. A copy of that decision was served on the applicant on 30 July 1999." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution of the Republic of Poland", "14. The Constitution of 2 April 1997 entered into force on 17 October 1997.", "Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:", "“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”", "15. A right to lodge a constitutional complaint was introduced in Article 79 § 1 which provides as follows :", "“ In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution .”", "B. Code of Medical Ethics", "16. Article 10 of the Polish Code of Medical Ethics, set out in Chapter I, entitled “Relations between a physician and his patient” ( Postępowanie lekarza wobec pacjenta ) reads, in so far as relevant:", "“1. A physician should not exceed the limits of his or her professional competence when carrying out diagnosis, prophylaxis and treatment ... ”", "17. Article 52 of Chapter III, entitled “ Mutual relations between physicians” ( Stosunki wzajemne między lekarzami ) provides as follows:", "“1. Physicians must show respect to each other.", "2. A physician should not express an unfavourable opinion on the professional conduct of another physician or discredit him in any other way in the presence of a patient, his or her environment or [in the presence of] assisting staff.", "3. All comments on the observed erroneous conduct of a physician should, in the first place, be passed on to him or her. Informing a medical court of the observed unethical behaviour or professional incompetence of another physician does not undermine the principle of professional solidarity. ”", "18. On 20 September 2003 Article 52 § 2 was amended. It reads as follows:", "“A physician should display particular caution in formulating opinions on the professional conduct of another doctor and in particular he should not in any way discredit him publicly.”", "C. Law on Medical Chambers", "19. According to section 1 of the Law of 17 May 1989 on Medical Chambers ( Ustawa o Izbach Lekarskich ), as it stood at the material time, the administrative units of medical self-government were the Supreme Medical Chamber ( Naczelna Izba Lekarska ) and regional medical chambers ( okręgowe izby lekarskie ). Section 19 provided that a regional medical chamber includes all physicians whose names are entered on its register.", "20. Bodies of a regional medical chamber included, among others, a regional medical court ( okręgowy sąd lekarski ) and a regional attorney for professional liability (section 20). The Supreme Medical Court ( Naczelny Sąd Lekarski ) was a body of the Supreme Medical Chamber ( section 31). According to section 7, the term of office of all bodies of medical chambers was four years.", "21. Section 41 of the Law, in Chapter 6, entitled “Professional Liability” ( Odpowiedzialność zawodowa ), provided :", "“Members of the medical self-government shall be professionally liable before medical courts for any conduct in breach of the principles of professional ethics and deontology and for any breach of the provisions governing the exercise of the medical profession. ”", "Section 42 read, in so far as relevant:", "“ 1. The medical court may impose the following penalties:", "1) censure ( upomnienie ),", "2) reprimand ( nagana ),", "3) suspension from practice ( zawieszenie prawa do wykonywania zawodu ) for a period from six months to three years,", "4) revocation of the right to practise medicine ( pozbawienie prawa wykonywania zawodu ).", "2. A physician, on whom the Supreme Medical Court sitting at second instance has imposed any penalty referred to in subsections (3) or (4), has the right to lodge an appeal with the Supreme Court within 14 days from the date on which the [ court ’ s] decision has been served on him or her ... ”", "22. According to section 46, matters of professional liability of medical practitioners were examined by regional medical courts and the Supreme Medical Court.", "23. A physician on whom a reprimand or suspension from practice had been imposed lost eligibility for election to bodies of medical chambers until a notice of penalty was removed from the relevant register (section 47). The notice was removed from the register three years after the decision to impose a censure or reprimand became final (section 55).", "24. According to section 54 the members of the Medical Courts were, in their adjudicating capacity, independent and should follow the law and the Code of Medical Ethics. Article 7 provided that the term of office of all bodies of the medical chambers was four years. As provided in section 56, the Supreme Medical Court, sitting as a second - instance court, included a judge of the Supreme Court appointed by the First President of the Supreme Court.", "D. The Constitutional Court ’ s judgment of 23 April 2008", "25. On 23 April 2008 the Constitutional Court delivered a judgment (SK16/07) in which it found that Article 52 § 2 of the Code of Medical Ethics was unconstitutional in so far as it prohibited the truthful public assessment of the activity of a doctor by another doctor in the public interest. The relevant provision, examined in its new wording which came into force in 2003, was not quashed by the Constitutional Court as only its particular interpretation was considered to breach the constitutional norm securing the freedom of expression.", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "26. The Government argued that the applicant had failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention. They noted that the applicant had not lodged a constitutional complaint against the relevant provisions of the 198 9 Law on Medical Chambers.", "As regards the applicant ’ s complaint raised under Article 6 § 1 of the Convention, the Government considered that the Constitutional Court would have been competent to examine whether the proceedings before the Medical Courts met the requirements of impartiality and independence. They submitted that a similar complaint concerning disciplinary proceedings for members of the Bar Association had been lodged with the Constitutional Court. However the Government failed to inform the Court about the outcome of these proceedings.", "With regard to the applicant ’ s complaint that his right to freedom of expression had been violated, the Government submitted that on 23 April 2008 the Constitutional Court had delivered a judgment finding that the provisions of the Code of Medical Ethics, which had been the basis for the applicant ’ s conviction, had been unconstitutional. In the Government ’ s opinion it proved that lodging a constitutional complaint with the Constitutional Court would have been an effective remedy in the applicant ’ s case.", "The Government also submitted that it had been open to the applicant to bring an action under Article 23 of the Civil Code to seek to establish that the proceedings against him had breached his personal rights protected by the Civil Code, and to seek damages.", "27. The applicant contested the Government ’ s arguments, maintaining that he had appealed against the domestic decisions in accordance with the law. In particular, he submitted that the remedies proposed by the Government were of a theoretical nature and not practical and effective. The constitutional complaint was an extraordinary remedy and he should not have been obliged to exhaust it. Moreover, he maintained that if any additional remedy had been open to him, he should have been informed of this when the authorities gave the final domestic decision. Finally, as regards the possibility of his lodging a civil action, the applicant argued that he would have been required to prove that he had sustained damage by the unlawful action of an official, while the decisions given in his case had a legal basis in the domestic law.", "28. The Court reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).", "29. The Court notes that the Government ’ s objection that the applicant had failed to exhaust domestic remedies since he should have lodged civil proceedings for compensation for breach of his personal rights is confined to a mere assertion and there are no further arguments or domestic court decisions indicating that recourse to such an action in the circumstances of the applicant ’ s case would have offered any reasonable prospects of success.", "As far as the Government ’ s objection refers to the effectiveness of the constitutional complaint with respect to the applicant ’ s allegations under Article 6 § 1 of the Convention, the Court notes that the Government relied on a press article about a constitutional complaint lodged in 2005 by members of the Bar Association. The Government failed to provide any additional information about this complaint or a relevant decision of the Constitutional Court.", "30. As regards the Constitutional Court ’ s judgment of 23 April 2008, the Court notes that it was delivered almost ten years after the proceedings in the present case ended. Any relevance that these proceedings might possibly have in respect of the present case is therefore reduced by the fact that it took place so long after the relevant time (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX). Moreover, the Constitutional Court examined the constitutionality of Article 52 § 2 of the Code of Medical Ethics in its wording as amended in 2003 and not as it stood at the material time. The Court also observes that the applicant was found guilty, in addition to Article 52 § 2, of a breach of Article 10 of the Code of Medical Ethics, the constitutionality of which was not examined by the Constitutional Court.", "31. Furthermore, the Court observes that at the material time, in May 1998, the right to lodge an individual constitutional complaint was a new instrument introduced by the 1997 Constitution, in force since October 1997. At this early stage of its evolution there had been no case law of the Constitutional Court demonstrating the effectiveness of the individual complaint. Thus the Court considers that, in the particular circumstances of the present the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress (see Aksoy v. Turkey, 18 December 1996, § 54, Reports of Judgments and Decisions 1996-VI; Hansen v. Turkey, (dec) no. 36141/97, 19 June 2001).", "32. It follows that the Government ’ s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "33. The applicant complained about a breach of Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds (see paragraph 3 2 above). It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "35. The applicant submitted in a general manner that, as a doctor, he should have had a right to state his opinion on the treatment received by his patient from another doctor. He argued that the medical court ’ s decisions showed the hostile attitude of the medical authorities towards his community work, as he had been active in an association. The applicant also maintained that the reprimand by the Medical Court was an element of persecution by the medical authorities and was caused by the fact that he had been the President of the Association for the Protection of the Rights of Patients in Poland and had been fighting for the interests of patients.", "The applicant argued that the reprimand ordered by the Medical Court was a harsh penalty as he had been prevented from applying for and taking up management functions in hospitals and public administration. He submitted that he had been the victim of a campaign launched against him by the medical society. As a result, he could not take a post of director in the Ministry of Health, had difficulties in finding a job, had to close down his private practice and was prevented from taking up an additional specialisation.", "36. The Government submitted that there had been no interference with the applicant ’ s right to freedom of expression. They maintained that the applicant had discredited another doctor before the patient and that he had prepared a critical opinion on the patient ’ s medical treatment without having adequate medical specialisation and expertise. The Government reiterated that the applicant had been giving critical opinions on other doctors within his commercial activity, and thus the disciplinary courts had been right to punish him and thus prevent him from abusing the rights of other doctors any further. The Government maintained that the provision of Article 52 of the Code of Medical Ethics was aimed at maintaining good relations between doctors and preserving the principle of professional solidarity. While the Code of Medical Ethics does not prevent doctors from making critical statements on other practitioners, certain rules should be observed, for example a doctor should not discredit another colleague in the presence of the patient. The Government also maintained that the applicant did not have sufficient knowledge to comment on treatment relating to a field of medicine in which he had not practised. In consequence, the Medical Court had correctly imposed a reprimand on the applicant and thus prevented him from infringing ethical rules and rules regarding competition.", "37. The penalty imposed on the applicant was necessary for the protection of other doctors ’ rights and reputation and was the most lenient possible. In sum, the interference was necessary to achieve a balance between the protection of patients ’ health, the interests of other medical practitioners and the applicant ’ s right to freedom of expression. The Government submitted that there had been no violation of Article 10 of the Convention.", "2. The Court ’ s assessment", "(a) The general principles", "38. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII ).", "39. The Court would also point out that Article 10 guarantees freedom of expression to “everyone”. The Court has held on many occasions that Article 10 applies to all kinds of information or ideas or forms of expression including when the type of aim pursued is profit-making or relates to a commercial activity of an applicant (see Casado Coca v. Spain, 24 February 1994, § 35, Series A no. 285 ‑ A, Barthold v. Germany, 25 March 1985, § 42, Series A no. 90 and Stambuk v. Germany, no. 37928/97, §§ 43-5 2, 17 October 2002).", "40. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the publication held against the applicant and the general context of the publication. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Sunday Times (no. 1) v. the United Kingdom, 26 April 1979, § 62, Series A no. 30 ). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.", "41. Under the Court ’ s case-law, the States parties to the Convention have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see, inter alia, markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165 and Casado Coca, cited above, § 50).", "( b ) The application of the general principles to the above case", "42. The Court must first determine whether the impugned conviction amounted to an “interference” with the exercise of the applicant ’ s right to freedom of expression. It notes that the Government submitted that there had been no interference with the applicant ’ s rights as the opinion in question had been made in the context of his commercial activity.", "43. The Court observes that a disciplinary sanction had been imposed on the applicant for having prepared an opinion on the treatment received by a patient which was critical of another doctor. He had been sanctioned by the Medical Court for having breached the Code of Ethics and reprimanded. The Court points out that notice of the sanction remained in the applicant ’ s file for 3 years and that it was not claimed by the parties that the penalty did not constitute a detriment to the applicant.", "44. The Court reiterates that, contrary to the Government ’ s opinion, matters relating to professional practice are not removed from the protection of Article 10 of the Convention ( see paragraph 39 above ). The Court thus considers that the applicant ’ s conviction and disciplinary sanction for having expressed a critical opinion on medical treatment received by a patient amounted to an interference with his right to freedom of expression.", "45. Such interference infringes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” to achieve such aims.", "46. The Court finds, and this was not disputed, that the interference was “prescribed by law,” the applicant ’ s disciplinary sanction having been based on Articles 52 § 2 and 10 of the Code of Medical Ethics (see paragraph 10 above). The Court agrees with the Government that the interference with the applicant ’ s right to freedom of expression was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect the rights and reputation of others.", "47. The Court will then examine whether the interference with the applicant ’ s right to freedom of expression was necessary in a democratic society. The Court recalls that the applicant, a medical practitioner, wrote an opinion in which he criticised medical treatment received by a patient. The disciplinary authorities considered the applicant guilty of unethical conduct in breach of the principle of professional solidarity, in violation of the Code of Medical Ethics.", "48. The applicant based his report on the patient ’ s medical file, and on the results of some additional medical examinations which the patient had undergone at his suggestion. The opinion was requested by the patient himself who turned to the applicant ’ s company, which specialised in preparing assessments of medical treatment undertaken by patients. The opinion was then handed to the patient, who could use it for whatever purpose he intended. However there is no indication that it was subsequently published or otherwise made known to a wider public.", "49. The Court has previously agreed, in the context of lawyers, members of the Bar, that the special nature of the profession practised by an applicant must be considered in assessing whether the restriction on the applicant ’ s right answered any pressing need (see Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003 ‑ XI ). Medical practitioners also enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means for ensuring the well - being of the latter. That can imply a need to preserve solidarity among members of the profession. On the other hand, the Court considers that a patient has a right to consult another doctor in order to obtain a second opinon about the treatment he has received and to expect a fair and objective evaluation of his doctor ’ s actions.", "50. The fact that the opinion in question was issued within the framework of the applicant ’ s commercial activity, and was critical of another doctor, does not automatically deprive it of genuineness or objectivity. The Court observes that the domestic authorities, in finding that the applicant had discredited another doctor, did not make any serious assessment of the truthfulness of the statements included in the opinion (see Veraart v. the Netherlands, no. 10807/04, §§ 60 and 61, 30 November 2006). The Regional Medical Court found that, since no criticism of another doctor was permissible, the question of whether the applicant ’ s report actually reflected reality had been without importance.", "51. Such a strict interpretation by the disciplinary courts of the domestic law as to ban any critical expression in the medical profession is not consonant with the right to freedom of expression (see Stambuk, cited above, § 50). This approach to the matter of expressing a critical opinion of a colleague, even in the context of the medical profession, risks discouraging medical practitioners from providing their patients with an objective view of their state of health and treatment received, which in turn could jeopardise the ultimate goal of the doctor ’ s profession - that is to protect the health and life of patients.", "52. Finally the Court notes that the domestic authorities did not examine whether the applicant had been defending a socially justified interest. The Court considers that the applicant ’ s opinion was not a gratuitous personal attack on another doctor, but a critical assessment, from a medical point of view, of treatment received by his patient from another doctor. Thus, it concerned issues of public interest.", "53. In conclusion the interference complained of was not proportionate to the legitimate aim pursued and, accordingly, was not “necessary in a democratic society” “for the protection of the rights of others”. Consequently, it gave rise to a violation of Article 10 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "54. The applicant complained that the Medical Courts which decided in the proceedings against him cannot be considered “an independent and impartial tribunal” as provided in Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "55. The Government contested that argument.", "A. Applicability of Article 6 of the Convention", "56. As a preliminary issue, the Court has to determine whether Article 6 of the Convention is applicable to the proceedings in issue. It is clear from the Court ’ s case-law that where, as in the instant case, what is at stake is the right to continue to practise medicine as a private practitioner, disciplinary proceedings give rise to “ contestations (disputes) over civil rights” within the meaning of Article 6 § 1 (see, among other authorities, König v. Germany, 28 June 1978, §§ 87–95, Series A no. 27; Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, §§ 41 ‑ 51, Series A no. 43; Albert and Le Compte v. Belgium, 10 February 1983, §§ 25–29, Series A no. 58 and Gautrin and Others v. France, 20 May 1998, § 33, Reports 1998 ‑ III, Gubler v. France, no. 69742/01, § 24, 27 July 2006 ).", "Moreover, the parties did not dispute before the Court that Article 6 § 1 is applicable to the circumstances of this case.", "The Court thus finds that this Article, under its civil head, is applicable to the present case.", "B. Admissibility", "57. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds (see paragraph 33 above). It must therefore be declared admissible.", "C. Merits", "1. The parties ’ submissions", "58. The applicant submitted that there had been a violation of Article 6 § 1 of the Convention in that he had been deprived of the right to a fair trial by an impartial tribunal. He submitted that the judges sitting in the Regional and Supreme Medical Courts had not been independent, as those bodies had been composed of doctors, members of the Regional Medical Council, and thus represented the interests of the doctors ’ lobby. Only one of the five members of the Supreme Medical Court was a professional judge, delegated from the Supreme Court. However, such a judge would often follow the conclusions of the majority. Moreover, the applicant ’ s case had not been heard at the later stage by an impartial tribunal as the domestic law did not provide for a right to appeal to a court against the decision of the Medical Court when it had imposed a penalty taking the form of a reprimand.", "59. The Government submitted that the proceedings in the applicant ’ s case had been conducted fairly and that the applicant had enjoyed all procedural guarantees under Article 6 § 1 of the Convention. The applicant had been represented and his case heard at two instances before Medical Courts which had been independent and impartial. As regards the personal impartiality of the members of the Medical Courts, the Government argued that they had been impartial and that there was no proof to the contrary. Although the applicant had attempted to challenge the members of the Medical Court, this challenge had not included any specific complaint or evidence pointing to a lack of impartiality; it had thus been dismissed as manifestly ill-founded. The Government, referring to the Albert and Le Compte case (cited above), submitted that it had been necessary for the members of the Medical Courts to have expertise in medicine. They had been independent in exercising their functions and had followed the law and the Code of Ethics. Moreover, one judge sitting in the Supreme Medical Court had been appointed by the Supreme Court. The Government concluded that there had been no violation of Article 6 § 1 of the Convention.", "2. The Court ’ s assessment", "60. The Court reiterates that, even in instances where Article 6 § 1 of the Convention is applicable, conferring the duty of adjudicating on disciplinary offences on professional disciplinary bodies does not in itself infringe the Convention. Nonetheless, in such circumstances the Convention calls for at least one of the following two systems: either the professional disciplinary bodies themselves comply with the requirements of that Article, or they do not so comply but are subject to subsequent review by a judicial body which has full jurisdiction and does provide the guarantees of Article 6 § 1 (see Albert and Le Compte cited above, § 29, and Gautrin, cited above, § 57 ).", "61. The applicant maintained that the Regional and Supreme Medical Courts, which decided his case, lacked independence and impartiality.", "62. There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, mutatis mutandis, Saraiva de Carvalho v. Portugal, 22 April 1994, § 33, Series A no. 286-B and Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII and, a contrario, Brudnicka and Others v. Poland, no. 54723/00, § 41, ECHR 2005 ‑ II ).", "63. As regards the subjective approach, the Court reiterates that the personal impartiality of each member must be presumed until there is proof to the contrary. In the present case the applicant exercised his right to challenge the impartiality of the judges composing the Regional Medical Court on the ground that they might be subject to pressure from the Tarnów Governor (see paragraph 11 above). The Government maintained that the challenge had not been specified or substantiated. The Court considers that the substance of his challenge was that the disciplinary courts, being composed of medical practitioners and not professional judges, might be under pressure from their hierarchical superiors or local government. However, the applicant failed to provide any prima facie evidence that the Tarnów Governor had put, or attempted to put, pressure on the members of the Medical Court. Moreover, there is no indication of any personal prejudice or bias on the part of the members of the disciplinary courts and indeed the applicant does not suggest this.", "As regards the manner in which the challenges to the three members of the Regional Medical Court were examined, the Court observes that they were dealt with by the court sitting in a different composition (see in this connection Debled v. Belgium, 22 September 1994, § 37, Series A no. 292 ‑ B). The dismissal of the applicant ’ s challenge to particular members of the court and the refusal to transfer the case to another region were adverted to by the applicant in his appeal. However, the Supreme Medical Court dismissed the appeal, considering as unfounded the allegation that the members of the Regional Court had been put under pressure when dealing with the applicant ’ s case.", "64. As to the issue of objective and structural impartiality, the Court observes that the members of the Medical Courts were elected from among medical practitioners for a period of four years and they acted not as representatives of medical self-government but in their personal capacity. Moreover, in the composition of the Supreme Medical Court there was one professional judge appointed by the Supreme Court (see paragraph 25 above). As for the impartiality of the members from an objective and organisational point of view, the applicant did not raise any additional, specific, complaints in this respect. In any event, there were sufficient safeguards to exclude any legitimate doubt about the Medical Courts impartiality (see, a contrario, Kyprianou, cited above, § § 127 and 128 ).", "65. The Court is also satisfied, and it has not been disputed by the parties, that both bodies were established by law, that is, the 1989 Law on Medical Chambers (see paragraph 20 above).", "66. The Court finally notes that, at the material time, the decisions of the Medical Courts, if their consequence was suspension from practice and revocation of the right to practise, were open to appeal to the Supreme Court - which offered an additional safeguard as regards the requirements of Article 6 § 1 of the Convention.", "67. Regard being had to all the circumstances examined above, the Court considers that the applicant ’ s doubts about the independence and impartiality of the members of the Medical Courts that reprimanded him for having breached the Code of Medical Ethics have not been sufficiently substantiated (see Gubler v. France, no. 69742/01, § 30, 27 July 2006 ). Thus, there has been no violation of Article 6 § 1 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "68. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "69. The applicant claimed 316,000 Polish zlotys (PLN) in respect of pecuniary damage. This sum covered loss of wages for the period of nine years during which he had difficulties practising medicine given the reprimand by the medical court and the hostility of the medical authorities towards him.", "70. As to non-pecuniary damage, the applicant claimed PLN 10,000 by way of symbolic compensation for suffering endured by him and his family.", "71. The Government submitted that the applicant ’ s claim in relation to pecuniary damage, with respect to the loss of hypothetical income, did not have a causal link with the alleged violations of the Convention. With regard to non-pecuniary damage, the Government argued that the sum claimed by the applicant was excessive. They invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.", "72. With regard to pecuniary damage the Court finds that there is no causal link between the damage claimed and the violation found. It therefore dismisses this claim. The Court considers, however, that the applicant must have sustained non-pecuniary damage and that sufficient just satisfaction would not be provided solely by a finding of a violation of the Convention. It awards the applicant EUR 3,0 00 under this head.", "B. Costs and expenses", "73. The applicant did not claim reimbursement of any costs and expenses.", "C. Default interest", "74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant organisation is the Vienna Chamber of Medical Doctors ( Ärztekammer für Wien ). The Chamber represents all medical practitioners in Vienna and also has its own website. The second applicant was the Chamber ’ s president at the time of the events.", "A. Statement in issue and injunction proceedings", "6. On 18 January 2007 the second applicant published a letter on the first applicant organisation ’ s website, which was addressed to all members of the Chamber in Vienna and was also sent out to all of them via e-mail. The letter was titled “Locust funds want to take over medical practices” ( “Heuschreckenfonds wollen Ordinationen übernehmen” ). The second applicant went on to state that he had been forced to write to his colleagues for a serious reason, namely, because it had been reported in the media that the F. company planned to go into “ the radiology business”. He added that share - bidding companies planned to offer medical services – initially in the area of radiology, but soon enough in other areas of the profession as well ‑ and that doctors risked becoming mere employees of such “locust” companies. If they would not act according to the companies ’ wishes, they would be dismissed. The second applicant then explained the assumed legal and organisational basis of such a plan: radiology services which were currently being provided by medical practices could, in future, also be offered by limited companies. Shares of those companies could then be bought by the F. company, and the “locusts” would reach their goal, namely control of the medical profession. Giving an example of a risky development, the second applicant stated that in the last 20 years, colleagues had founded laboratories which had reciprocal agreements with certain health insurance boards. Today, almost all of those laboratories were owned by the F. group, which, in turn, was owned by insurance companies, investment funds and foundations, and which employed a large number of doctors. The second applicant ended his letter by stating that he could guarantee one thing : that the doctors ’ professional representative body would make use of all legal and political means available to stop such a disastrous development from going ahead, to prevent that the quality of medical treatment being determined by “managers and controllers” and to ensure, inter alia, that existing medical practices were protected from the competition from “international locust funds” ( “internationale Heuschreckenfonds” ).", "7. On 24 January 2007 the F. company lodged an action against the two applicants and an application for an injunction with the Vienna Commercial Court ( Handelsgericht Wien ). The applicants contested the application.", "8. On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants ( each of them individually ) from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals. The injunction prevented the applicants from referring to the F. company as a “locust”, “locust company” or “locust fund”. The applicants were further prohibited from stating that the provision of services by the F. company, particularly services in the area of radiology, was a disastrous development. The court found that there was a competitive relationship between the F. company and the applicants, and found the statements made by the applicants to be defamatory under Article 1330 of the Civil Code and unethical under the Unfair Competition Act ( Bundesgesetz gegen den unlauteren Wettbewerb ).", "9. The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal ( Oberlandesgericht Wien ) partly granted the appeal, and prohibited the applicants from alleging that the F. company was ruthless towards third parties and medical practitioners, and from calling it, inter alia, a “locust company”. However, it dismissed the F. company ’ s application to prohibit the applicants from calling its provision of services a “disastrous” development. The Court of Appeal found that the first applicant organisation had locus standi in the injunction proceedings. The Chamber of Medical Doctors held official authority status in relation to certain areas of its work ( Bereich der Hoheitsverwaltung ), in addition to representing the interests of its members; it was therefore considered a legal entity under the Official Liability Act ( Amtshaftungsgesetz ). However, when acting as a special interest group, it represented its members ’ interests from a mainly economic perspective, rather than acting in its capacity as an official authority. According to the Court of Appeal, the letter in issue pursued the interests of the Chamber ’ s members, outside the Chamber ’ s official sphere of activity.", "10. The Court of Appeal further established, referring inter alia to Wikipedia, that the term “locust company“ (“ Heuschreckenunternehmen “) was introduced into the political discussion in German speaking countries in 2005 by Mr Franz Müntefering, a German politician, and is ever since used in political debates as a pejorative term for private-equity companies or other forms of capital funds with short-term or exaggerated return expectations – like hedge funds or „vulture“ funds, which also had negative connotations. The domestic court found that there was a need to balance the interests involved in the present debate, reiterating that extreme opinions were only unlawful if they were excessive. As a result of that balancing exercise, the Court of Appeal found that the “locust” statement had to be considered a lawful criticism in the context of a public debate, and that the F. company could therefore not base its claim on Article 1330 of the Civil Code. However, the Court of Appeal classified the applicants ’ actions as competitive in nature. Statements of fact made in violation of the Unfair Competition Act could not be justified by the right to freedom of expression. The Court of Appeal found that Austrian law provided wide ‑ ranging protection for commercial and economic interests. Those who published an opinion in an economically competitive context were obliged to exercise a higher level of diligence with regard to the facts and bases of their allegations than those who acted in the non-competitive context of a public debate of general interest. Therefore, the Court of Appeal upheld the injunction decision with regard to the statements about the “locust company”.", "11. However, as regards the further statement, namely that provision of certain services by the F. company was a “disastrous development”, the Court of Appeal found that, read in context, the statement indicated a general assessment and did not refer to a particular service of the F. company. It was therefore to be considered a personal opinion, and thus a value judgment that was not defamatory under Article 1330 of the Civil Code. It also did not fall under section 7 of the Unfair Competition Act.", "12. The applicants lodged an extraordinary appeal with the Supreme Court ( Oberster Gerichtshof ). On 22 January 2008 the Supreme Court dismissed the extraordinary appeal. It acknowledged the applicants ’ argument that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight in the balancing test. However, the Supreme Court observed that the applicants had made their statement in the clearly economic context of competition between medical practitioners and companies which provided the same services. The applicants could have warned their members of the possible risks of cooperating with companies without overstepping the margin of acceptable criticism. However, the applicants had exceeded that limit and stated that the F. company was a “locust”. That statement was one of fact, and the applicants had not provided evidence of a factual basis for their allegations, and had therefore exceeded the permissible limitations of freedom of expression.", "B. Substantive proceedings", "13. On 7 July 2008 the Commercial Court gave its judgment in the substantive proceedings and ordered the applicants to refrain from : repeating the statement that the F. company was ruthless towards third parties, in particular medical practitioners and patients; and stating that the F. company was a “locust company”, a “locust fund” or a “locust”. It further ordered the applicants to publish and display the operative part of the judgment on the first applicant organisation ’ s website for thirty days, and to publish it in the first applicant organisation ’ s print newsletter.", "14. The Commercial Court made substantial reference to the Court of Appeal ’ s reasoning in the interim injunction proceedings. It followed the previous finding that the relevant statements did not constitute defamation pursuant to Article 1330 of the Civil Code. Examining the statements in relation to the provisions of the Unfair Competition Act, the Commercial Court found that the letter had been written by the Chamber of Medical Doctors in a commercial and not a political context. It had also had the advancement of independent medical practices as an objective, and had contained a warning regarding capital ventures which allegedly threatened doctors ’ independence. The Commercial Court found the relevant comparisons with “locusts” to be statements of fact regarding both the F. company and its conduct in relation to third parties, doctors and patients. The statements were also likely to damage the F. company ’ s commercial interests, and had not been proved to be true.", "15. The used language could also not be justified with a reference to the right to freedom of expression as the statement was uttered within the framework of a commercial competitive relationship. With reference to the Court ’ s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial language, the Commercial Court observed that a competitor was required to be more diligent in the context of commercial communication among competitors. The term “locust” was almost exclusively loaded with negative meaning, which led to the unethical general vilification of a competitor. The applicants were therefore prohibited from using that statement in relation to the F. company, pursuant to the Unfair Competition Act.", "16. On 19 September 2008 the applicants lodged an appeal against that judgment. On 12 December 2008 the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given in the interim injunction proceedings and added that, according to the case-law of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression required the assessment of whether a factual basis for such a statement existed; if a competitor participated in a public debate of general interest, freedom of expression had more weight with regard to the assessment of the statement than in the context of purely commercial communication. The greater the public interest in being properly informed and the less the statement related to commercial interests, the more the statement would be protected by Article 10 of the Convention. In the present case, there was no doubt that there was an ongoing public debate; however, the commercial interests of the applicants had very much been in the foreground of the communicated statement itself.", "17. The applicants lodged an extraordinary appeal on points of law against that judgment, which was rejected by the Supreme Court on 14 July 2009. The Supreme Court found that the applicants had not only called the F. company a “locust”, but had also reproached this company for negative conduct, such as dominating doctors, dismissing doctors who did not act in accordance with company wishes, and focusing on economic factors rather than the welfare of patients ( “Herrschaft über den ärztlichen Berufstand, Kündigung nicht “spurender” Ärzte, Orientierung an ökonomischen Erwägungen und damit nicht am Wohl der Patienten” ). Therefore, the expression used had turned into a statement of fact, giving the reader the impression that the F. company had already demonstrated unethical conduct which threatened the interests of doctors and patients. In view of the specific circumstances of the case, the prohibition ruled upon by the lower courts was justified. Even though the applicants had taken part in a debate of general public interest, an untrue and damaging statement of fact was not protected by freedom of expression. Furthermore, the issuing of warnings concerning the potential risks of the provision of medical services by companies was not, as such, prohibited by the decisions of the Austrian courts; the applicants had only been required to refrain from making untrue statements of fact in respect of their competitors.", "18. The decision of the Supreme Court was served on the applicants ’ counsel on 27 August 2009." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Chamber of Medical Doctors and the Medical Practitioners Act", "19. According to Article 120 a of the Federal Constitution Act ( Bundesverfassungsgesetz ), people may be united by law to self ‑ administrating bodies to autonomously take care of public interests being in their exclusive or preponderant common interest and qualified to be handled jointly by them. The self-administrating bodies are authorized to take care of their tasks in own responsibility without orders and to render statutes within the frame of the laws. The Federation or the Region has a right of supervision over them on the basis of the legal regulations with regard to the legality of the handling of the administration. Such right of supervision may also extend to the expedience of the handling of the administration, if such is required because of the tasks of the self ‑ administrating body. Upon the self-administrating bodies tasks of administration of the state may be conferred. The laws have to expressly indicate that such matters belong to the assigned executive responsibility and to provide a binding effect of the instructions by the supreme administrative authorities (see Article 120b of the Federal Constitution Act).", "20. Using the authority granted by these provisions of the Federal Constitution Act, the Medical Practitioners Act ( Ärztegesetz ), establishes the Chamber of Medical Doctors (“the Chamber”) to represent the interests of medical practitioners in Austria ( Standesvertretung ). There is a regional chamber in each of the nine Austrian regions and a Federal Chamber, of which the regional chambers are members. The chambers are public - law bodies with compulsory membership. The members are all practising doctors who are registered on the list of active medical practitioners in the geographical area of the regional chambers.", "21. The chambers are established to represent and promote the professional, social and economic interests of doctors; uphold the reputation of the medical profession; and ensure that professional duties are observed by practitioners.", "22. Furthermore, inter alia, they manage the examinations which medical graduates have to pass in order to become practising doctors (sections 7 et seq. of the Medical Practitioners Act ); confer institution status on medical education establishments (sections 9 et seq.); and deal with the recognition of foreign qualifications and access to work for both self ‑ employed and employed doctors (sections 27 et seq.). These duties and responsibilities are divided between the regional chambers and the Federal Chamber, and are regulated by sections 65 et seq. (in relation to the regional chambers ) and sections 117 et seq. of the Medical Practitioners Act (in relation to the Federal Chamber ).", "23. Section 66 (sections 66 to 66c after 1 January 2010 ) of the Medical Practitioners Act provides that, within their own sphere ( eigener Wirkungsbereich ), the regional chambers are called upon to, inter alia, form and terminate contracts which define the relationship between medical practitioners and social security institutions; secure collective agreements on the part of employers in relation to non-medical employees; control fees; give legal advice; make reports, expert opinions and recommendations to state authorities concerning the health system, establish regional collegiate arbitration boards and conduct collegiate arbitration proceedings; establish patient arbitration boards; establish and manage pension and disability funds for their members; establish and manage commercial institutions; report on public health issues; collaborate in the collection of official medical statistical data; collaborate in the establishment of medical universities and other training institutes; examine draft laws; provide quality control for medical training; provide advanced training and training facilities; and provide quality control for services rendered by the medical profession in general.", "24. The Federal Medical Chamber ( Österreichische Ärztekammer ), inter alia, manages the register of practising doctors; deals with the accreditation process for equivalent medical qualifications; issues diplomas for general practitioners, medical specialists or specialists in other fields; collaborates in the academic and advanced education and training of medical practitioners; and conducts disciplinary proceedings. Section 27 of the Medical Practitioners Act provides that the regional chambers cooperate with the Federal Chamber in managing the register of doctors. Appearing on this register is a precondition to working legally as a medical doctor in Austria.", "25. The regional chambers adopt their own organisational statutes; statutes relating to pension and disability funds; rules on contributions to the chambers themselves and to pension and disability funds; recommendations regarding fee structures for private medical services; and rules on the reimbursement of costs and other fees.", "26. The members are obliged to pay regular contributions ( Umlage ) to their chambers and to the relevant pension and disability funds (section 69 of the Medical Practitioners Act). These contributions are defined by decree of the regional chambers on the basis of section 91. Payment of arrears of such contributions can be enforced by the chambers on the basis of the federal law for enforcement of administrative orders ( Verwaltungsvollstreckungsgesetz ).", "27. Until 2010, remedies against decisions of the chambers could, depending on the issue, be raised before the Regional Governor ( Landeshauptmann – sections 14, 15, 28, 59 and 197), the Independent Administrative Panel ( Unabhängiger Verwaltungssenat – sections 35a and 39) or, in respect of decisions relating to pension and disability funds and disciplinary proceedings, with the Federal Chamber. Between 1 January 2010 and 31 December 2013 the rule providing for appeals to the Regional Governor was abolished. In proceedings concerning the recognition of foreign qualifications (sections 32, 33 and 35), there was the possibility of an appeal to the Independent Administrative Panel. With regard to decisions relating to pension and disability funds and disciplinary proceedings, the rule permitting appeals to the Federal Chamber remained in force. As of 1 January 2014 an appeal to the Regional Administrative Courts can be filed against all decisions of the chambers.", "28. The regional chambers are supervised by the regional governments, the Federal Chamber by the Federal Minister of Health. To fulfil this supervisory function, the chambers have to provide information needed by regional governments or the Federal Minister of Health. All decrees have to be presented for supervision automatically. The supervisory body has to examine the lawfulness of the decrees and decisions issued by the chambers, and can suspend unlawful acts (sections 195 et seq.). If an organ of the chamber oversteps its competences or neglects its duties, the regional government may dismiss this organ from office, if this organ acted with culpable negligence or wilful intent and the chamber does not take appropriate measures. If the chamber becomes inquorate, the regional government may depute a commissioner of the Government ( Regierungskommissär ) to administrate the acts of the chamber until the establishment of a new board of the chamber through elections (see section 195b).", "29. In accordance with Article 127b of the Federal Constitution, the Audit Office ( Rechnungshof ) examines the finances of the chambers and verifies that all their transactions are lawful, appropriate and in line with relevant budgets. It reports to the chambers themselves and to the supervisory bodies.", "30. Apart from the public responsibilities described above, medical chambers can act as private entities. They may form all manner of civil contracts and acquire possessions. In this field, they can be held liable for violations of laws, in the same way as any private entity.", "B. Article 1330 of the Civil Code and section 7 of the Unfair Competition Act", "31. Article 1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows:", "“1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation..", "2. The same shall apply if anyone disseminates allegations which jeopardise a person ’ s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...”", "Sections 1 (1) and 7 ( 1 ) of the Unfair Competition Act ( Bundesgesetz gegen den unlauteren Wettbewerb ) provide :", "Section 1", "“ § 1. Any party who, for competitive purposes :", "1. uses an unfair commercial practice or any other unfair action which might possibly affect the competitive capability of a business in a significant way; or", "2. uses an unfair commercial practice which is contrary to the requirements of professional diligence and likely to materially distort the economic behaviour of the average consumer whom it reaches or to whom it is addressed.", "can be sued for negligence and damages in the event of default. ”", "Section 7", "“ 1. Any party who, for competitive purposes, alleges or disseminates facts about a person ’ s business, a business owner or manager ’ s character, or a person ’ s, goods or services which may be detrimental to that business or to the credit standing of its owner, shall be liable [to pay] damages to the injured [party] unless such facts are demonstrably true. The injured [party] may file a claim for the party at fault to cease and desist from alleging or disseminating the facts. The injured [party] may furthermore demand a retraction and publication of the retraction.", "...”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. The first applicant organisation ’ s victim status", "32. The Government contested the first applicant organisation ’ s locus standi under Article 34 of the Convention.", "33. Referring to the Court ’ s case-law, they asserted that the first applicant organisation was a governmental organisation under Article 34, as, legally, it was a public body entrusted with fulfilling governmental duties. Those tasks were fulfilled by exercising typically governmental powers, such as the issuing of decrees. In proceedings relating to decisions, the first applicant organisation was bound by the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ), and the enforcement of its decisions was based on the Federal Law for the Enforcement of Administrative Orders ( Verwaltungsvollstreckungsgesetz ). The decrees issued by the first applicant organisation were supervised by the Vienna Regional Government, which had powers to suspend them. Therefore, the first applicant organisation was not fully independent, as required by the Court ’ s case - law. Moreover, the relevant statement had been issued in the process of discharging the first applicant organisation ’ s legal public responsibilities.", "34. The first applicant organisation contested that assertion. It was true that, legally, it was a public entity entrusted with the exercise of public functions. It was therefore correct that it was, in general, required to safeguard fundamental rights but did not enjoy such rights. However, aside from this legal aspect, it also had a non-governmental aspect, which rendered it capable of being a party under Article 34 of the Convention. The Court should therefore not examine the general abilities of the organisation to use the powers conferred on it by law, but the act in question itself. The issuing of the statement was not an act of a governmental organisation, but rather one of a private- law nature.", "35. The Court refers to its well-established case law to the effect that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto” may submit an application to the Court, provided that it is a “non ‑ governmental organisation ” within the meaning of Article 34 of the Convention. The Court reiterates that the idea behind this principle is to prevent a Contracting Party from acting as both an applicant and a respondent party before the Court. The term “governmental organisations”, as opposed to “non ‑ governmental organisations ” within the meaning of Article 34, includes legal entities which participate in the exercise of governmental powers or run a public service under government control. The term “governmental organisations” applies not only to the central organs of the State, but also to decentralised authorities that exercise “public functions”, regardless of their autonomy vis-à-vis the central organs; likewise it applies to regional and local authorities, including municipalities. In order to determine whether any given legal person falls within one of the two above categories, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out, the context in which it is carried out, and the degree of its independence from the political authorities ( see Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X, and Islamic Republic of Iran Shipping Lines v. Turkey (no. 40998/98, §§ 78-81, ECHR 2007 ‑ V).", "36. The Court has therefore considered a company to be a “non ‑ governmental organisation” where it was governed essentially by company law, did not enjoy any governmental or other powers beyond those conferred by ordinary private law in the exercise of its activities, and was subject to the jurisdiction of the ordinary rather than the administrative courts. In the past, the Court has also taken into account the fact that an applicant company carried out commercial activities, and had neither a public service role nor a monopoly in a competitive sector ( see Vỳchodoslovenská Vodárenská Spoločnosť, A.S. v. Slovakia (dec.), no. 40265/07, § 31, 2 July 2013; State Holding Company Luganksvugillya v.Ukraine (dec.), no. 23938/05, 27 January 2009); and Transpetrol, a.s. v. Slovakia (dec.), no. 28502/08, 15 November 2011) ).", "37. With regard to Austria, the Court has stated that communes and the Chamber of Commerce had to be seen as governmental organisations within the meaning of Article 34 (see, respectively, 16 Austrian Communes and some of their Councillors v. Austria, no. 5767/72, Commission decision of 31 May 1974, and Weiss v. Austria, no. 14596/89, Commission decision of 10 July 1991 ). However, the Austrian Broadcasting Corporation ( Österreichischer Rundfunk – ORF) was not seen as an governmental organisation within the meaning of Article 34, as it did not exercise governmental powers, and its independence and institutional autonomy had been preserved ( see Österreichischer Rundfunk v. Austria, no. 35841/02, § 53, 7 December 2006).", "38. It is undisputed that the first applicant organisation exists by virtue of the legislature that thus provides its continued existence. Its legal status is therefore that of a public - law body and not an entity founded in accordance with private law.", "39. The Court observes further that the structure of the first applicant organisation is provided for by law and that membership is compulsory. The relationship between the members and the governing body is defined by means of public law issued by the governing body, and is not subject to the jurisdiction of the civil courts. Even the enforcement of payment of contributions arrears is a matter governed by the Federal Law for the Enforcement of Administrative Orders.", "40. Further, the Court observes that the mission of the first applicant organisation is prescribed by the Medical Practitioners Act as well.", "41. As regards the nature of its activities, on one hand it is undisputed that the first applicant organisation may, in certain matters, act as a private entity, and can be held liable before the ordinary courts. On the other hand, there is agreement between the parties that the first applicant organisation exercises governmental powers and has a public service role in organising and managing the education of doctors and their access to employed and self-employed work. In exercising all these functions, it is under the supervision of other State authorities. All the chamber ’ s organs can be dismissed from office by the regional Government under the section 195b of the Medical Practitioners Act.", "42. Moreover, the activities of the first applicant organisation are financed by compulsory and enforceable contributions of all medical practitioners in Austria (see para. 38).", "43. The Court is not persuaded by the first appplicant organisation´s argument that in publishing the impugned article he did not exercise of any governmental powers within the meaning of Article 34. The impugned statement was clearly made in exercising the chambers public function.", "44. Accordingly, the Court concludes that the first applicant organisation is not a “person, non-governmental organisation or group of individuals” within the meaning of Article 34 of the Convention.", "45. In accordance with Article 35 § 3, it follows that the application is incompatible ratione personae with the provisions of the Convention. The Court must therefore reject the application of the first applicant organisation as inadmissible.", "B. The second applicant ’ s victim status", "46. The Government further argued that the second applicant had acted as the president of the first applicant organisation, and therefore as the head of a governmental organisation. He had used the first applicant organisation ’ s website to publish his statement, and had done this to fulfil his duties towards doctors. His act should be regarded as governed by public law, and his application should therefore be declared inadmissible ratione personae.", "47. The second applicant contested that argument and emphasised that the national courts had found that he had not acted within the sphere of the duties conferred by public law. Otherwise, the courts could not have prohibited him from repeating the statements in question.", "48. The Court reiterates that the term “victim”, used in Article 34 of the Convention, denotes the person directly affected by the act or omission which is in issue ( see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 92, ECHR 2012).", "49. In the present case, the courts prohibited the second applicant, a natural person, from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals, and from referring to the F. company as a “locust”, “ locust company” or “locust fund”. It was undisputed in the course of the domestic proceedings that the second applicant hereby acted as a representative of the first applicant. However by addressing the court order explicitly also to the second applicant as a natural person it affected the second applicant individually. Therefore, the Court considers that the second applicant has standing to introduce the present application. The Government ’ s objection is thus dismissed.", "50. Moreover, the second applicant ’ s complaint is not manifestly ill ‑ founded within the meaning of Article 34 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It is therefore declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "51. The second applicant complained of an infringement of his right to freedom of expression as a result of the measures imposed on him by domestic courts. He relied on Article 10 of the Convention, which reads:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "52. The Government accepted that there had been “interference by public authority” with the exercise of the applicant ’ s right to freedom of expression. They contended, however, that that interference satisfied the requirements of the second paragraph of Article 10.", "53. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and, in addition to being proportionate, is “necessary in a democratic society” for achieving such aims.", "A. The parties ’ submissions", "54. The second applicant accepted that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention.", "55. However, in his view, the imposed prohibition had not been lawful, as section 7 of the Unfair Competition Act was not clear, and a prohibition based on that law was therefore not foreseeable. Accordingly, the interference was not prescribed by law.", "56. As regards the necessity of the interference, the second applicant emphasised that he had contributed to a debate of public interest, and that, in respect of public shareholder companies, the limits of acceptable criticism were wider. He acknowledged that the term “locust” had a negative meaning associated with private-equity funds. However, there had been a substantive factual basis for his allegations, as the shareholders of the F. company were also companies limited by shares, and a private - equity fund was managing the holdings of one of the shareholders of the F. company. By calling the F. company a “locust” company, he had not intended to act competitively. Instead, his intention had been to voice a pointed criticism of a process he considered unlawful. The statement had aimed to point out the ongoing shift from the predominance of independent medical practitioners to a medical service determined by capital, and the consequent risks involved for doctors and their work. Moreover, the prohibition imposed by the domestic courts would prevent him from fulfilling his duties as President of the Vienna Chamber of Medical Doctors. Therefore, the interference was also not proportionate.", "57. The Government submitted that the interference was “prescribed by law”, as it had its basis in sections 1 and 7 of the Unfair Competition Act. Those provisions were formulated with sufficient precision to enable the citizen to regulate his conduct, as required by the Court ’ s case - law. In the field of competition law in particular, an absolutely precise formulation could not be expected, as business markets and ways of communicating would always be subject to change. In addition, the interference had pursued a legitimate aim.", "58. In relation to the necessity of the interference, the Government submitted that the interference was based on grounds which were “sufficient and relevant” in terms of the aims pursued, and was proportionate to those aims. They accepted that the second applicant had taken part in a debate on a matter of public interest, namely public health care in Austria. The domestic courts had issued decisions which, in the past, the Court had accepted as being within the wide margin of appreciation in purely commercial matters. The Austrian courts had followed this case-law and had considered the second applicant ’ s statement to be a statement of fact. On that basis, they had conducted a careful and detailed examination of the case and the parties ’ arguments. The second applicant had failed to prove the existence of these facts. The fact that the F. company was a company limited by shares was no proof that it would be ruthless towards its employees or act like a “locust”. Even if the statement had to be treated as a value judgment, the second applicant had failed to show a sufficient factual basis to support his assertions. The second applicant had acted for competitive purposes, as he had stated himself at the first - instance hearing. Moreover, the courts had not prohibited the second applicant from warning against the alleged threats companies limited by shares would pose to the system of medical care, in instances where such warnings had a sufficient factual basis.", "59. The Government further pointed out that the courts had not imposed a penalty, but rather an obligation not to repeat the statement that the F. company acted ruthlessly or was a “locust”. Therefore, the interference with the second applicant ’ s rights was of minor effect. It would not prevent him from participating in the ongoing debate about the impact of companies on medical services.", "B. The Court ’ s assessment", "1. “Prescribed by law” and legitimate aim", "60. The Court reiterates that, in the past, it has held that section 1 of the Unfair Competition Act – which prohibits unfair commercial practice or any other unfair action which might affect the competitive capability of a business in a significant way for competitive purposes – was sufficiently precise for the purpose of Article 10 of the Convention and, accordingly, that an interference based on that provision was prescribed by law within the meaning of Article 10 (see, Krone Verlag GmbH & Co. KG v. Austria (no. 3), no. 39069/97, § 24, ECHR 2003 ‑ XII ). Section 7 of the Unfair Competition Act defines “conduct” in more detail than section 1, and in substance prohibits allegations being made or facts being disseminated about a competitor ’ s business for competitive purposes, unless such facts are demonstrably true. The Court sees that provision as sufficiently precise for the purpose of Article 10 of the Convention. Also, the national courts ’ orders to cease and desist are the legal consequences clearly outlined in section 7 of that Act. Therefore, the Court considers that the interference was prescribed by law, namely by sections 1 and 7 of the Unfair Competition Act.", "61. Moreover, there is agreement between the parties that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. The Court shares this view.", "2. “ Necessary in a democratic society ”", "62. The Court notes that in the present case, the second applicant made a public statement which affected the reputation of the F. company. The right to protection of reputation is a right which is protected by Article 8 of the Convention. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness (see Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015). The Court has reiterated many times, that in cases which require the right to respect for private life to be balanced against the right to freedom of expression, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the statement, or under Article 10 by the person who made the statement. Indeed, as a matter of principle these rights deserve equal respect (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012).", "63. The Court reiterates that, under its case-law, Contracting States have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them ( see markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165 ).", "64. The Court has identified a number of criteria in the context of balancing the competing rights. The relevant criteria thus defined are: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the person who made the statement (see, mutatis mutandis Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015).", "65. The Court has also found that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts, and that the limits of acceptable criticism are wider in respect of such companies. However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies – not just for the benefit of shareholders and employees, but also for the wider economic good. Therefore, the State enjoys a margin of appreciation as to the means it provides under domestic law by which a company can challenge the truth and limit the damage of allegations which risk harming its reputation ( see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II ). Furthermore, the Court emphasises that a wider margin of appreciation entrusted to the States is essential in the complex and fluctuating area of unfair competition ( see Krone Verlag GmbH & Co. KG (no. 3), cited above § 30, and Jacubowski v. Germany, 23 June 1994, § 26, Series A no. 291 ‑ A ).", "66. However, it is necessary to reduce the extent of the margin of appreciation when what is at stake is not an individual ’ s purely “commercial” statement, but his participation in a debate of general interest, for example, a debate about public health ( see Hertel v. Switzerland, 25 August 1998, § 47, Reports 1998 ‑ VI).", "67. The Court notes that, in order to assess the justification of a statement which is in issue, a distinction must be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it. The classification of a statement as one of fact or as a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities – in particular, the courts (see, Lindon, Otchakovsky ‑ Laurens and July v. France [GC], nos. 21 279/02 and 36448/02, § 55, ECHR 2007 ‑ IV). However, the Court can change this classification under its supervisory role (see Kharlamov v. Russia, no. 27447/07, § 31, 8 October 2015; Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 2 2 January 2015).", "68. Turning to the circumstances of the present case, the Court notes that the domestic courts took the statement of 18 January 2007 into consideration in its entirety, and found that the statement was made in the clearly economic context of competing medical practices and capital companies providing the same services. They acknowledged that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight with regard to the balancing exercise. However, the term “locust” was almost exclusively loaded with negative meaning, which led to an unethical general vilification of a competitor. The word used gave the reader the impression that the F. company had already demonstrated unethical conduct which harmed the interests of doctors and patients. Therefore, the domestic courts judged the relevant statement to be one of fact. The statement was also likely to damage the F. company ’ s commercial interests, and had not been proved to be true.", "69. The Court considers that there is no need to further clarify whether the present statement was one of fact or a value judgment, since a sufficient factual basis for it was needed in any case. For a company which offers medical services, the accusation that it acted as a “locust” ( which, as can be seen from the context of the applicants ’ letter, also implied that the F. company or similar companies placed economic interests above those of its patients ) was a particularly serious one which affected its reputation. Thus, even if the applicant had intended to make that statement in the context of a wider debate on an issue of public concern, he had to have a solid factual basis on which to base that allegation. In the domestic proceedings, the Austrian courts – after carefully examining the arguments put forward by the applicant – concluded that there was no such factual basis, and the applicant has likewise not provided any persuasive argument substantiating his allegations. Neither the fact that the shares in the F. company are owned by other companies limited by shares and that one of those shareholders is managed by a private - equity fund, nor the fact that financial resources for expansion are raised by debenture provides a factual basis for the unethical conduct typically associated with “locust” corporations. In addition, the fact that doctors are employees within the F. company does not provide a factual basis for the second applicant ’ s allegations. The general remarks by the second applicant concerning the future impact of the growing popularity of companies providing medical services are not related to any actions on the part of the F. company; therefore, they cannot provide a factual basis for his allegations against that company.", "70. Accordingly, the Court arrives at the conclusion that the prohibition imposed on the second applicant was based on “relevant and sufficient” grounds.", "71. As regards the measures imposed on the second applicant, the Court notes that, according to its case-law, the nature and severity of the interference imposed are factors to be taken into account when assessing its proportionality ( see mutatis mutandis Lindon, Otchakovsky-Laurens and July, cited above, § 59, and Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 54, 22 October 2009 ).", "72. The Vienna Commercial Court did not impose a penalty, but prohibited the second applicant from calling the F. company ruthless by the term “locust”. The second applicant was also ordered to publish the operative part of the Vienna Commercial Court ’ s judgment on the first applicant organisation ’ s website, and in its print newsletter. Even if the second applicant now risks the imposition of fines for non-compliance with the injunction, the nature and severity of the court ’ s action was moderate. The second applicant also failed to give reasons as to why the court ’ s action would prevent him from fulfilling his duties.", "73. In conclusion, the Court finds that the interference with the exercise of the second applicant ’ s right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of the F. company. There has therefore been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1964 and lives in Kostrena.", "6. Between 1 October 2003 and 1 October 2007 the applicant was the director of a municipal utility company, KD Kostrena (hereinafter “the company”), whose sole shareholder is the Municipality of Kostrena ( Općina Kostrena). The company primarily provides public utility services such as parking, waste disposal, funeral services, maintaining green spaces, cemeteries and so forth.", "A. Media statements, the applicant ’ s dismissal and subsequent civil proceedings", "7. In an article published in the daily Novi list of 19 September 2007, Mr M.U., who was the mayor of Kostrena Municipality and chairman of the company ’ s General Meeting ( skupština ) at the time, criticised the way the applicant performed her job. The relevant part of the article reads as follows:", "“ ... M.U. does not hide his dissatisfaction with the work of Mirela Marunić as head of KD Kostrena.", "‘ I cannot speak for the others, but after everything that has happened, I can say that Mirela Marunić has betrayed the trust of the members of the General Meeting because she disclosed information which should only have been discussed at the General Meeting. Likewise, in the 2005 [annual] report she spoke in positive terms of building a sports hall, and I do not know what happened to make her change her mind. ’", "In his words, dissatisfaction with the functioning of KD Kostrena goes beyond the current political crisis in Kostrena and the public statements of Mirela Marunić.", "‘ The fact is that we had even earlier objected to Mirela Marunić ’ s work because [the company] has been stagnating for some time now and functioning as a means of transferring municipal funds. Our municipal utility company does not carry out the type of business for which it was established. For example, Žurkovo Bay was leased as a parking lot and a dry [dock] marina, and the same applies to the parking lot near Kostrenka. My question is, how does it benefit the concessionaires to have it and in addition pay rent for it? Had it stayed in our hands we would, apart from making a profit, also have had the chance to employ someone ’. M.U. does not hide his dissatisfaction.", "In a lengthy list of criticisms of the current director of KD Kostrena, M.U. states that he does not like the fact that she has been referred to as a member of his [political] party. He claims that he was the one who had advised her when she was appointed to the position as head of Kostrena ’ s municipal utility company not to make public statements as a member of [their political party] because someone could misinterpret [the nature of] her work and the way she came to get that position.”", "8. In an article published in Novi list eight days later, on 27 September 2009, the applicant replied to the above criticisms. The relevant part of that article reads as follows:", "“The mayor of Kostrena, M.U., has publicly criticised the current director of KD Kostrena for having disclosed information which should only have been discussed at the General Meeting and for the company ’ s poor performance, saying it does not engage in the type of business for which it was established.", "‘ They betrayed my trust by not believing me. I first informed my [political] party but there was no reaction. In particular, at a meeting held before the September session of the General Meeting [of the company] last year, I warned them of all the irregularities, the financial losses and the ruining of KD Kostrena ’ s business reputation. Then they asked me not to talk about it in the presence of D.G. [who was the only member of the company ’ s General Meeting from the ruling political party at the State level], ’ says Mirela Marunić, repeating that there are written documents in respect of all the issues she had warned the General Meeting about.", "As regards M.U. ’ s remark that the company has been stagnating under her leadership, she says that Kostrena Municipality, which does not have a development strategy, has itself been stagnating ... The main precondition for that ... would be, in her opinion, the resolution of property issues which remain outstanding in the case of most of the parking lots administered by Kostrena ’ s municipal utility company. Marunić illustrates this by referring to the Viktor Lenac parking lot where the municipal utility company has been charging for parking on land which was not even owned by Kostrena Municipality.", "‘ The legal department of Kostrena Municipality still requires [the company] to charge for parking even though [the company] Lenac refused to do so because of unresolved property issues. That case has now gone to court, ’ warns Marunić, ‘ and a similar situation exists with the parking lot in Žurkovo and [the one] near Kostrenka, which have been leased out. ’", "‘ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney ’ s Office. I sincerely hope that the State institutions will do their job in this case, as that will save Kostrena. Kostrena needs professionals, but they are being removed, the proof of which is the proposal to remove T.S. as a member of the General Meeting. I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far. ’ ”", "9. By a decision of the company ’ s General Meeting of 11 October 2007 the applicant was summarily dismissed because of the statements she had made in the media, which were regarded as being damaging to the company ’ s business reputation. The relevant part of that decision reads as follows:", "“On 27 September 2007 the Novi list daily published an article ... stating that the director of KD Kostrena, Mirela Marunić, had given a statement to [a] journalist of Novi list saying that KD Kostrena was acting unlawfully, that it was charging for parking where it was not allowed, that she demanded an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney ’ s Office with a view to looking into KD Kostrena ’ s operations.", "The director Mirela Marunić was at the time of the publication of the article ... employed as [chief executive officer] of KD Kostrena, that is, the officer who heads the company and is responsible for the consequences of her own work. Making such allegations in a daily newspaper, if those allegations are true, testifies to unlawful conduct in her job precisely because it is her duty as the officer in charge [of the company] to monitor and make sure that the utility company operates in accordance with the law. If, on the other hand, those allegations are not true but were nevertheless made in the publication that has the largest circulation in the area [of the country] then those allegations gravely harm the [business] reputation of the company because they suggest that KD Kosterna operates unlawfully.", "That kind of conduct, by an employee who was at the time of the publication of the statement in the daily newspaper the director of the utility company, which she headed, who makes such allegations in the media or engages in unlawful conduct, constitutes, in the opinion of the company ’ s General Meeting, totally inappropriate behaviour which tarnishes the company ’ s [business] reputation in the eyes of the public. ..", "Such conduct ... depicting the utility company in a negative light [constitutes] a particularly serious breach of employment-related duties, and is a particularly important fact which, taking into account all the circumstances and the interests of both contracting parties, makes the continuation of the employment relationship impossible [under section 107 of the Labour Act]. ”", "10. On 22 October 2007 the applicant launched an internal challenge to her dismissal by lodging a request for the protection of her rights ( zahtjev za zaštitu prava ), a remedy which is guaranteed for every employee by the Labour Act and which employees had to use before bringing a civil action against their employer. The applicant argued, inter alia, as follows:", "“I contest entirely the argument that by making statements in the media I acted inappropriately and allegedly attacked the [business] reputation of the company ...", "The utility company is a public company which belongs to the [local] community ... It was my duty, as a member of the [company ’ s] Management, to contact the media and inform the public because it is a public company and not someone ’ s private property. I particularly emphasise that I have always given accurate information to the public.", "It is a well-known fact that the media show a great interest in Kostrena Municipality because of political turbulence among those heading the Municipality. However, my observations were always a defence against the media attacks directed against me by the chairman of the General Meeting.", ".. it is totally unclear what unlawful conduct I engaged in??? It is true that I warned about unlawful acts [by the company] but [I did so] directly to the General Meeting and the Supervisory Board. My statements were not directed against the utility company but made solely and exclusively with a view to removing any potential liability from myself. Therefore, the arguments in the dismissal decision are a twisted interpretation of the events.”", "11. It appears that the applicant received no reply to her request. On 21 November 2007 she therefore brought a civil action for wrongful dismissal against the company in the Rijeka Municipal Court ( Općinski sud u Rijeci ). She challenged the decision to dismiss her and sought reinstatement. The relevant part of her statement of claim read as follows:", "“The defendant obviously did not properly read the [impugned] article because the plaintiff merely states some facts in it and, as an example, refers to a particular case of unresolved property issues, which is already the subject of judicial proceedings, and calls for an audit and the involvement of [the prosecuting authorities] with a view to protecting her integrity by expressly stating: ‘ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney ’ s Office. ’ ”", "12. By a judgment of 12 June 2008 the Municipal Court ruled in favour of the applicant. The court accepted that her statements in the media had been damaging to the company ’ s business reputation and as such had constituted a serious breach of employment-related duties within the meaning of section 107 of the Labour Act (see paragraph 23 below), making her summary dismissal justified. However, it ruled in the applicant ’ s favour because it found that pursuant to her employment contract, her job as director of the company had ended on 1 October 2007, when the company had been required to transfer her to another job. That meant that she could not have been dismissed from her job as director, let alone dismissed with retroactive effect, as the decision to remove her had indicated. Furthermore, since the decision to dismiss her had specifically related only to her job as director, it could not be assumed that it had also entailed the termination of her entire employment relationship with the company, including the job to which she was supposed to have been transferred after 1 October 2007. The court thus found that the dismissal had been wrongful and that the applicant ’ s employment relationship had not been terminated. It accordingly ordered that she be reinstated and assigned to another job within the company.", "13. By a judgment of 14 January 2009 the Rijeka County Court ( Županijski sud u Rijeci ) dismissed an appeal by the company and upheld the judgment of the first ‑ instance court. Its reasons, however, were different.", "14. It first noted that, contrary to the opinion of the first-instance court, the decision to dismiss the applicant had been aimed at terminating the applicant ’ s entire employment relationship with the company, and not only her job as director, and had been capable of having that effect. However, the County Court also disagreed with the view of the Municipal Court that the applicant ’ s behaviour, namely her statements in the media, had constituted a serious breach of employment-related duties such as to justify summary dismissal. In that respect the County Court held as follows:", "“... the defendant company ’ s [internal regulations] state that the business activities of the company are public [and] that the company informs the public by notifying the media of its organisation, the way and the conditions under which it operates, [and] the manner in which it provides services and runs its business.", "It follows that neither the [internal regulations] nor the [applicant ’ s employment] contract prohibit public statements or criticism of the defendant company ’ s business activities, which are public.", "Article 38 of the Croatian Constitution guarantees freedom of thought and [freedom of] expression, particularly emphasising freedom of speech and [the freedom] to speak publicly.", "As established ... by the first-instance court, the plaintiff ’ s public statements had been made in reaction to the statements of M.U. published a few days earlier in Novi list on 19 September 2007, where he had criticised the plaintiff ’ s work and stated that she had betrayed the trust of the members of the General Meeting by disclosing information that should only have been discussed at the General Meeting, [had said] that the [company] was stagnating, that it did not operate the type of business for which it had been established [and so on] ...", "...", "Therefore, in this court ’ s view, the plaintiff ’ s actions should be interpreted as [the exercise of] her right to speak publicly and the right to freedom of thought, which are rights guaranteed by the Croatian Constitution.", "Therefore, in the view of this court, the plaintiff ’ s conduct does not constitute a serious breach of employment-related duties as envisaged in section [107] of the Labour Act as grounds for summary dismissal.", "Specifically, in the opinion of this court, the plaintiff ’ s statements are to be seen as [a way of] informing the public of irregularities in the activities of the defendant company as a public institution; [the statements] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment-related duties. The first-instance court therefore correctly applied the substantive law when finding the dismissal wrongful.”", "15. The company then lodged an appeal on points of law ( revizija ) against the judgment of the County Court.", "16. By a judgment of 6 October 2009 the Supreme Court ( Vrhovni sud Republike Hrvatske ) reversed the County Court judgment and dismissed the applicant ’ s action. The relevant part of that judgment reads as follows:", "“The findings of the lower courts cannot be accepted. In this particular case, the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation or be trusted in the business world. Therefore, the behaviour of the plaintiff, in stating on 27 September 2007 in the Novi list daily ... that the defendant company, which she heads, had acted illegally, namely by charging for parking when it was not allowed [to do so], asking that the [company] be audited, and also seeking the intervention of [the prosecuting authorities] with a view to verifying the activities of the defendant company, has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract, within the meaning of section [107] of the Labour Act. Having regard to the given circumstances, it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case, the depiction by the employee of the employer ’ s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract.", "The plaintiff ’ s reliance on her duty to speak publicly is unfounded. In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant State authorities and lodging a complaint with them, which would have resulted in that information being available to the press and other media, and which could not have served as a reason for her dismissal.”", "17. The applicant then lodged a constitutional complaint, alleging, inter alia, a violation of her freedom of expression. In so doing she explicitly relied on Article 38 of the Croatian Constitution and Article 10 of the Convention.", "18. On 17 February 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint and served its decision on her representative on 14 March 2011. The relevant part of that decision reads as follows:", "“The Constitutional Court observes that the complainant justifies her conduct towards the employer (namely, her media statements), on account of which the employer summarily dismissed her, by arguing that she had merely been calling for the supervision of her actions in the company by the relevant authorities. That argument is incorrect [having regard to her statements in] the article published in Novi list of 27 September 2009 ...", "The Constitutional Court notes that the right ‘ of a citizen ’ to publicly express his or her personal opinions cannot justify a breach of employment-related rights and obligations stemming from an employment contract and the relevant legislation.”", "B. Other relevant facts", "19. Meanwhile, on 21 June 2002 KD Kostrena had brought a civil action in the Rijeka Municipal Court against the water and sewage utility company ( Komunalno društvo Vodovod i kanalizacija d.o.o. ) of Rijeka seeking to be declared the owner of the Viktor Lenac parking lot in Kostrena. By a judgment of 3 March 2008 the court dismissed KD Kostrena ’ s action. The final outcome of those proceedings is unknown. However, an extract from the land register concerning the two plots of land that were the subject of the proceedings suggests that the water and sewage company transferred ownership of the plots to shipbuilding company Viktor Lenac on 13 February 2014.", "20. On 12 February 2007 the water and sewage company brought a civil action against KD Kostrena in the same court seeking repayment of the parking fees the defendant company had collected from the Viktor Lenac parking lot. The plaintiff company claimed that KD Kostrena had been charging for parking on land owned by the plaintiff. The final outcome of those proceedings is unknown.", "21. In June 2013 the applicant won municipal elections and was elected mayor of Kostrena, replacing M.U. She still holds that position at the time of the Court ’ s judgment." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "22. The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments) provides as follows:", "Article 16", "“(1) Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health.", "(2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.", "...", "Article 38", "“(1) Freedom of thought and expression shall be guaranteed.", "(2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions.", "(3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information.", "(4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.”", "B. Labour Act", "23. The relevant provisions of the Labour Act of 1995 ( Zakon o radu, Official Gazette no. 38/95 with subsequent amendments ), which was in force between 1 January 1996 and 1 January 2010, provided as follows at the material time:", "Summary notice", "Section 107(1) and (2)", "“(1) An employer or an employee has a justified reason to give notice terminating ... an employment contract, without an obligation to comply with the prescribed or agreed notice period ( ‘ summary notice ’ ) if, because of a particularly serious breach of an employment-related duty or because of some other particularly important fact, taking into account all the circumstances and the interests of both contracting parties, continuation of the employment relationship is not possible.", "(2) An employment contract may only be terminated on summary notice within fifteen days of the date when the person concerned found out about the fact which is the basis for the summary notice.”", "Unjustified reasons for dismissal", "Section 108", "“(1) ...", "(2) Where an employee lodges an appeal or brings an action or takes part in proceedings against the employer for breach of statute, other legislation, a collective agreement or an internal regulation, and addresses the competent executive authorities, this shall not constitute a justified reason for dismissal.", "(3) Where an employee addresses a bona fide complaint to the person in charge [of the relevant department] or files one with the competent State authorities on grounds of a reasonable suspicion of corruption, this shall not constitute a justified reason for dismissal.”", "C. Civil Procedure Act", "24. The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which has been in force since 1 July 1977, read as follows:", "5.a. Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom", "Section 428a", "“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or the additional protocols thereto, ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated at first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision [in question].", "(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on reopening of proceedings.", "(3) In the reopened proceedings the courts are required to observe the legal views expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "25. The applicant complained that her dismissal on account of her media statements had been in breach of her freedom of expression and thus contrary to Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "26. The Government contested that argument.", "A. Admissibility", "27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The submissions of the parties", "(a) The applicant", "28. Firstly, the applicant explained the background to the conflict between her and M.U. which had prompted their statements in the media. She submitted that on 27 April 2000 the Municipality of Kostrena had taken a decision authorising the company to collect parking fees in all the parking lots located on the territory of the Municipality. However, it had soon become apparent that the land on which certain of the parking lots (Žurkovo and Viktor Lenac) had been built or planned was not owned by the Municipality but by third parties. The applicant, as the director of the company, had therefore notified the Municipality that the collection of parking fees and the carrying out of some other projects (such as the construction of a dry dock marina) on such land could not commence until the property issues had been resolved, that is until the Municipality had become the owner of the land.", "29. The Municipality had promised to resolve the property issues but they had still not been dealt with to the present day. Since M.U., the municipal mayor at the time, had advised her that the Municipality would be registered as the owner of the land forming the Viktor Lenac parking lot in a matter of days, the applicant had agreed to start collecting parking fees from that lot. However, that had resulted in two civil proceedings (for repayment of parking fees and for a declaration of ownership) with the owner of the parking lot (see paragraphs 19-20 above), both of which the company had lost. The applicant had stopped charging parking fees for that land as soon as the company had been sued to repay the fees it had collected.", "30. When therefore at the end of 2005 M.U. had started to put pressure on the applicant to collect parking fees at Žurkovo Bay, the applicant had refused because that car park had also been located on land owned by third parties and not by the Municipality (the applicant supplied an extract from the land register to that effect). In reaction to her refusal, M.U. had criticised her in the media (see paragraph 7 above) by saying that she had not been doing her job properly because:", "- the company was not carrying out the activities for which it had been established;", "- it had been stagnating under her leadership;", "- she had not been collecting parking fees from the two parking lots which had (a long time beforehand) been leased out to third parties;", "- and that by all those actions she had caused a loss of income and decreased the possibilities for the employment of local people.", "31. The applicant submitted that Kostrena was a small community where she, as a public figure, had been known to all its inhabitants. She had therefore had to defend herself against M.U. ’ s public criticism and explain that the company had in fact been stagnating because of the unresolved property issues (see paragraphs 27-28 above) and not because of her alleged incompetence. She had also stated that if anyone considered that she had not been doing her job properly, the authorities could come to the company and check her work, a statement which had been her defence to M.U. ’ s false and groundless accusations. The applicant emphasised that her statements could not be taken in isolation from those of M.U.", "32. The applicant also argued that she had made the impugned statements in good faith, only with a view to denying the false accusations against her, and that by doing so she had exercised her right of reply (correction) guaranteed by Article 38 § 4 of the Constitution (see paragraph 22 above). She added that she had not had any other means of replying to M.U. ’ s groundless criticism. In particular, even though she had lodged two criminal complaints against M.U. on different grounds, there had been no grounds to do so in respect of charging for parking at the Žurkovo Bay parking lot because she had resisted the pressure he had put on her to apply those charges (see paragraph 30 above). Likewise, there had been no grounds for lodging a criminal complaint about charging for parking at the Viktor Lenac lot because the applicant had stopped levying those charges as soon as her company had been sued by the company which owned it (see paragraph 29 above).", "33. The applicant argued that the true reason for her dismissal had been that she had disobeyed the mayor, who had realised that as long as she was director of the municipal utility company the Municipality would not earn the income he had expected from the unlawful projects he had intended to carry out through the company. He had therefore used the applicant ’ s statements to the media and his position as chairman of the General Meeting to remove her from her post as director.", "34. The applicant also pointed out that even though the main aim of her statements had been to deny M.U. ’ s accusations rather than to point to irregularities in the running of the company, the information she had given in reply had been of public interest. Furthermore, that information had been accurate, fair and authentic. In particular, her statement that collecting parking fees was unlawful before the issue of ownership had been resolved had been a true fact. The applicant could not see how disclosing that information to the public, which had not been a business secret, with a view to denying publicly made false accusations against her, could have harmed the company ’ s business reputation, or why disclosing such information constituted an important fact that had rendered the continuation of her employment impossible.", "(b) The Government", "35. The Government admitted that the applicant ’ s dismissal on account of her statements to the media had amounted to an interference with her freedom of expression. However, they argued that the interference had been in accordance with the law, had pursued a legitimate aim, and had been necessary in a democratic society.", "36. The Government noted that the applicant had been summarily dismissed because of statements she had made in the media which had suggested that the company she had headed had been charging for parking illegally, and because she had publicly urged the prosecuting authorities to examine the legality of the company ’ s operations. The Supreme Court had considered the applicant ’ s dismissal lawful because those statements had tarnished the business reputation of KD Kostrena, the company of which she had been the director, which had been a particularly important fact in terms of section 107 of the Labour Act (see paragraph 23 above) and which had meant that her employment at the company could not continue.", "37. In view of that, the Government argued that the decision to dismiss the applicant had been lawful because it had been based on section 107 of the Labour Act (see paragraph 23 above), and had sought to protect the reputation and the rights of others, namely the business reputation of KD Kostrena. That interference had also been “necessary in a democratic society”, having regard to the criteria established in the Court ’ s case-law (the Government cited Heinisch v. Germany, no. 28274/08, ECHR 2011 (extracts), and Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010), that is:", "- the motive behind the applicant ’ s statements;", "- the authenticity of the information disclosed;", "- the availability of other effective, but more discreet, means of remedying the alleged wrongdoing;", "- the damage suffered by the company;", "- the public interest involved in the information that was disclosed.", "38. As regards the applicant ’ s motive, the Government argued that there was no dispute about the fact that she had made the impugned statements in reaction to the previous media statements by M.U., who had been the municipal mayor and the chairman of the company ’ s General Meeting. He had publicly criticised the quality of her performance as the director of the company by stressing that the company had stagnated under her leadership, an opinion which he had illustrated by mentioning some of her business decisions which he had considered unsound (see paragraph 7 above). In other words, when making the impugned statements and revealing the alleged unlawful activities of the company she had headed, the applicant had been motivated exclusively by a wish to protect her public image rather than by a genuine concern for the company ’ s business interests or the interests of those who used its services. For that reason the present case should not be regarded as a so-called whistle-blower case, nor should her detailed explanation for the origin of her conflict with M.U. (see paragraphs 28-30 above) be of any relevance. In that connection the Government referred to the Court ’ s case-law (see Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008) under which acts motivated by a personal grievance or personal antagonism did not justify a particularly strong level of protection under Article 10 of the Convention.", "39. As regards the authenticity of the information she had disclosed, the Government submitted that not a single State authority (the State Attorney ’ s Office, domestic courts or the State Audit Office) had ever established any instance of unlawfulness in relation to KD Kostrena ’ s charging for parking, let alone that it had constituted a criminal offence, as insinuated by the applicant in her statements to the press. In particular, the two sets of civil proceedings referred to by the applicant (see paragraphs 19-20 and 29 above) were still ongoing. The Government also noted that the applicant had offered no evidence of such alleged unlawfulness before the courts that had decided on the lawfulness of her dismissal. In the Government ’ s view those allegations thus remained nothing but arbitrary and unproven assertions detrimental to the business reputation of the municipal utility company. That view was further reinforced by the fact that in her observations to the Court the applicant had not even attempted to explain why she had believed that the prosecuting authorities should have intervened over the allegedly unlawful charging for parking. On the contrary, she had submitted that there had been no grounds to lodge a criminal complaint in that regard (see paragraph 32 above). That suggested that the applicant had been aware that no crime had been committed but had nevertheless called for the intervention of the prosecuting authorities. That further meant that she had deliberately misled the public to believe that the company she had headed had been involved in criminal activities.", "40. As regards the availability of other effective, but more discreet, means of remedying the alleged wrongdoing, the Government, referring to the applicant ’ s motives set out above (see paragraph 38), argued that the proper channel for defending her rights and reputation had been to bring a civil action against M.U. rather than publicly insinuating that criminal activities were being carried by the company and drawing it, through no fault of its own, into the public debate she had had with him. In that way the applicant would have protected her public image (as well as the public interest, if any, see paragraph 34 above and paragraph 42 below) without any risk to her employment (see section 108 of the Labour Act, cited in paragraph 23 above).", "41. As regards the damage suffered by the company, the Government noted, firstly, that the Court had itself held that even State-owned companies could have an interest in their own commercial viability (see Heinisch, cited above, § 89 ). Therefore, even though KD Kostrena primarily provided public utility services (see paragraph 6 above) that did not mean that it had no commercial interests to protect, which could be jeopardised by tarnishing its business reputation. That was especially so because, apart from public utility services, the company also provided some commercial services (such as leasing sports facilities) and as such competed on the open market. Tarnishing its business reputation could therefore lead to difficulties in charging for the public utility services and to reduced interest in its commercial services. The Government stressed that the applicant ’ s statements insinuating that the company had been engaged in criminal activities had been particularly harmful for its business reputation and, consequently, for its commercial interests because she had been the company ’ s director and as such, in the eyes of the average reader, a trustworthy source of information.", "42. Lastly, as regards the public interest involved, the Government did not deny that the public had an interest in knowing if public utility companies engaged in criminal activities. However, they reiterated their view that the applicant had not acted bona fide (see paragraphs 38-39 above). Moreover, the Government found it difficult to imagine what public interest would have been served by the applicant ’ s obviously false insinuations about the company carrying out criminal activities, where even the applicant herself had known that no crime had been committed (see paragraph 39 above).", "43. In conclusion, the Government submitted that the applicant, by making the above-mentioned unproven allegations in the media which had been harmful for the business reputation of the company she had headed, had breached her duty of loyalty towards the company as her employer. Her only motivation for doing so had been to protect her own interests in the public debate with the mayor of the municipality, which had been the company ’ s sole shareholder. In his media statements M.U. had criticised the applicant only for unsound business decisions rather than for any unlawfulness in doing business, meaning she had not needed to defend herself. The applicant had indisputably had the right to publicly deny media allegations which harmed her reputation, or institute the relevant proceedings, or do both of those things. However, in response to M.U. ’ s criticism the applicant had picked as her “weapon of choice” in the public debate the alleged unlawful charging for parking, which she had also mentioned as being of interest to the prosecuting authorities. That was how she had involved the company of which she had been the director in her media debate with the mayor, causing harm to its business reputation. That was also why she had been dismissed from her job, a measure which, albeit severe, had not been disproportionate in the circumstances and which had therefore been “necessary in a democratic society”, it being understood that no employer should tolerate being slandered in public by its employees.", "44. For those reasons, the Government asked the Court to find no violation of Article 10 of the Convention.", "2. The Court ’ s assessment", "(a) Whether there was an interference", "45. The Government conceded that the applicant ’ s dismissal on account of her statements to the press had constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention (see paragraph 35 above). The Court, having regard to its case-law (see, for example, Heinisch, cited above, § § 44-45; Balenović, cited above; and Wojtas-Kaleta v. Poland, no. 20436/02, § 42, 16 July 2009 ), sees no reason to hold otherwise.", "(b) Lawfulness and legitimate aim", "46. The Court further notes that the Supreme Court in its judgment of 6 October 2009 (see paragraph 16 above) considered the applicant ’ s dismissal lawful because, by her statements in the press, she had harmed the reputation of KD Kostrena, the company of which she had been the director. As held by the Supreme Court, those statements had constituted an important fact making the continuation of her employment impossible and had therefore been grounds for summary dismissal under section 107(1) of the Labour Act (see paragraphs 16 and 23 above).", "47. That being so, the Court therefore accepts that the interference was prescribed by law and that it pursued the legitimate aim of protecting the reputation or rights of others, namely the business reputation and interests of KD Kostrena (see, mutatis mutandis, Balenović, cited above ).", "48. Having established that the interference with the applicant ’ s freedom of expression in the present case was lawful and pursued a legitimate aim, the only question for the Court to determine is whether that interference was “necessary in a democratic society”.", "(c) “Necessary in a democratic society”", "49. The general principles in the Court ’ s case-law on the requirement of necessity in a democratic society in the context of Article 10 of the Convention are summarised in Perinçek v. Switzerland ([GC], no. 27510/08, § 196, ECHR 2015 (extracts)) and Europapress Holding d.o.o. v. Croatia (no. 25333/06, § 54, 22 October 2009).", "50. The applicant argued (see paragraphs 31-32 above) that she had made the impugned media statements in the exercise of her constitutionally guaranteed right of reply. She added that she had acted primarily with a view to responding to what she had seen as groundless criticism of her in the same newspaper by another officer of the same company, namely the chairman of its General Meeting, who had also been the municipal mayor. In that connection the Court reiterates that the right of rectification or of reply, as an important element of freedom of expression, falls within the scope of Article 10 of the Convention (see Kaperzyński v. Poland, no. 43206/07, § 66, 3 April 2012, and Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX). This flows from the need not only to be able to contest untruthful information, but also to ensure a plurality of opinions, especially in matters of general interest (ibid.). At the same time, the restrictions and limitations of the second paragraph of Article 10 are equally pertinent to the exercise of that right (see Melnychuk, cited above).", "51. The Government argued (see paragraph 37 above) that those restrictions and limitations, especially the requirement that they must be “necessary in a democratic society”, should in the present case be viewed in the light of the criteria developed by the Court in its case-law concerning freedom of expression in the workplace (see, among many other authorities, Guja, cited above, §§ 69-96; Heinisch, cited above, §§ 62-92; Balenović, cited above; Wojtas-Kaleta, cited above, §§ 41-53; and Fuentes Bobo v. Spain, no. 39293/98, §§ 43-50, 29 February 2000), namely having regard to:", "- the motive behind the actions of the employee;", "- the authenticity of the information disclosed;", "- the availability of other effective, but more discreet, means of remedying the wrongdoing which the reporting employee intended to uncover;", "- the damage suffered by the employer;", "- the public interest involved in the disclosed information.", "52. The Court, however, considers that the present case is different from those cases in one crucial respect. In particular, the Court cannot disregard the fact that the applicant made the impugned statements only after she had herself been criticised in the media by the chairman of the company ’ s General Meeting. It is true that “a duty of loyalty, reserve and discretion” normally prevents employees from publicly criticising the work of their employers (see, for example, Wojtas-Kaleta, cited above, § 43, 16 July 2009, and Guja, cited above, § 70). However, in the present case it was another officer of the company, namely the chairman of the company ’ s General Meeting, who had been the first to resort to the media and had publicly criticised the applicant ’ s work. The Court considers that in such specific circumstances it could not have been expected of the applicant that she should remain silent and not defend her reputation in the same way. To do so would overstretch her duty of loyalty, contrary to Article 10 of the Convention which, inter alia, requires that an employee ’ s freedom of expression is secured against unreasonable demands of loyalty by his or her employer (see Predota v. Austria (dec.), no. 28962/95, 18 January 2000, and Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports (DR) 62, pp. 151 and 161).", "53. This means in addition that several of the criteria relied on by the Government concerning freedom of expression in the workplace (see paragraphs 37 and 51 above) are either inapplicable or of limited relevance to the present case.", "54. In particular, since the right of reply is the right to defend oneself against public criticism in the same forum where the criticism was published (see, implicitly, Kaperzyński, cited above, loc. cit.) the Court finds irrelevant the Government ’ s arguments that the applicant had other effective, but more discreet, means of protecting her reputation, and that she was motivated exclusively by the wish to protect her public image rather than to inform the public of matters of general concern (see paragraphs 38 and 40 above).", "55. Furthermore, as regards the damage suffered by the company (see paragraph 41 above), the Court accepts that the applicant ’ s statements could have been harmful for the business reputation of the company.", "56. In that connection the Court also notes that in circumstances such as those in the present case it has to take into account the role played by M.U., who made the statements critical of the applicant and who was an officer of the company whose business reputation was allegedly hurt by her reply. For example, in the case of Nilsen and Johnsen v. Norway ([GC], no. 23118/93, ECHR 1999 ‑ VIII) the applicants had been punished for statements they had made as representatives of police associations in response to certain reports publicising allegations of police misconduct. The Court, in finding a violation of Article 10 of the Convention, took into account, inter alia, the harsh criticism initially voiced by the plaintiff, holding that the applicants had therefore not been entirely unjustified in claiming that they had been entitled to “hit back in the same way” (ibid., § 52).", "57. As regards the public interest involved in the disclosed information, the Court reiterates first of all that the right of reply not only protects the reputation of the person exercising it, but also ensures a plurality of opinions, especially in matters of general interest (see paragraph 50 above and the cases cited therein). The Court further considers that the operation of a municipal public utility company is a matter of general interest for the local community. The Court therefore agrees with the applicant that even though the main aim of her statements had been to deny M.U. ’ s accusations rather than to point to irregularities, the information she gave in reply was of public interest (see paragraph 34 above).", "58. However, even in a debate on matters of serious public concern, there may be limits to the right to freedom of expression. Therefore, in exercising her right of reply the applicant had to act within the bounds set for the protection of the reputation and the rights of others (see paragraph 47 above). What is in issue is whether the applicant exceeded the limits of permissible criticism (see, mutatis mutandis, Nilsen and Johnsen, cited above, § 47).", "59. This issue is closely linked with another criterion, relied on by the Government, concerning the authenticity of the information disclosed. The Government seemed to argue (see paragraph 39 above) that by urging the prosecuting authorities to check her work the applicant had gone too far in defending her reputation as that invitation had implied that the company she headed was engaged in unlawful and criminal activities.", "60. As regards the alleged unlawful collection of parking fees, the Court notes that the applicant did not expressly state in the impugned article that the company had been collecting parking fees “unlawfully” or “illegally”. Rather, she stated that the company had been charging for parking on land which was not owned by Kostrena Municipality (see paragraph 8 above). The Government did not seem to call into question the fact that the company had indeed been collecting fees from the parking lots at issue. Likewise, apart from submitting that the relevant proceedings were ongoing (see paragraph 39 above), the Government did not challenge the fact that those parking lots had been located on someone else ’ s land. That being so, and having regard to the information in the land register (see paragraphs 19 and 30 above), the Court considers that the applicant ’ s statement concerning the collection of parking fees did not contain factual inaccuracies.", "61. However, having regard to the applicant ’ s observations (see paragraph 34 above), where she expressly stated that collecting parking fees had been unlawful, the Court is ready to accept that that was the message she had intended to convey by stating in the impugned article that the company had been charging for parking on land not owned by the municipality. Even though both parties seem to agree that that was a statement of fact (see paragraphs 34 and 39 above), the Court disagrees because the use of the adjective “unlawful” suggests that the applicant was merely drawing an inference from the facts discussed above (see the preceding paragraph). The Court reiterates that drawing inferences from existing facts is generally intended to convey opinions, and is thus more akin to value judgments (see Stojanović v. Croatia, no. 23160/09, § 69, 19 September 2013). Therefore, the applicant ’ s statement implying that the company had been unlawfully charging for parking is to be seen as a value judgment which had a sufficient factual basis because it could reasonably be argued that collecting parking fees on someone else ’ s land was unlawful.", "62. Lastly, the Court considers that that statement was directly relevant to the aim she had intended to achieve by her public declaration, namely to defend her professional reputation against what she saw as groundless criticism by M.U. In particular, the applicant tried to explain that the company had not been stagnating because of her unsound business decisions but because of unresolved property issues the municipality should have dealt with. More specifically, she had wanted to explain how those unresolved issues had prevented her from raising income for the company by charging for parking at the parking lots in question.", "63. As regards the Government ’ s argument that the applicant had insinuated that the company had been engaged in criminal activities, the Court finds it useful to repeat her exact words, as reported in the article of 27 September 2009. The applicant stated, in particular (see paragraph 8 above): “ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of [the prosecuting authorities]. ” That sentence, taken together with the general defensive tone of her other statements in the same article, cannot, in the Court ’ s view, leave an impression in the mind of the average reader that the company was involved in criminal activities. That statement holds true if for no other reason than that the applicant, being the company ’ s director, would otherwise have effectively implicated herself in such activities. On the contrary, reading the impugned article, and that sentence in particular, leaves the impression that the applicant was so firmly persuaded that there was nothing wrong in the way she had been running the company that she was even ready to submit to an audit and an investigation by the prosecuting authorities with a view to definitively dispelling any uncertainty in that respect. Therefore, contrary to the Supreme Court ’ s view, which was reiterated by the Government (see paragraphs 16 and 42-43 above), the Court does not find that the applicant insinuated that what, in her view, had amounted to unlawful charging for parking by the company had also constituted a criminal offence.", "64. For those reasons (see paragraphs 50-63 above), the Court considers that the applicant ’ s statements in reply to those of M.U. were not disproportionate and did not exceed the limits of permissible criticism. Accordingly, the Court finds that the interference with the applicant ’ s freedom of expression in the form of her summary dismissal was not “necessary in a democratic society” for the protection of the business reputation and the rights of the company she headed.", "65. This finding obviates the need to further examine the nature and severity of the sanction imposed, namely the applicant ’ s dismissal, as factors to be taken into account when assessing the proportionality of the interference (see, for example, Europapress Holding d.o.o., cited above, loc. cit.).", "66. There has accordingly been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "67. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "68. The applicant claimed a total of 104,789.31 euros (EUR) in respect of pecuniary damage. Of that, EUR 97,590 constituted loss of earnings for the salary she would have received as KD Kostrena ’ s director had she not been dismissed. The remaining EUR 7,199.31 is the increased interest and costs for a loan she had to renegotiate because she had been dismissed.", "69. The applicant also claimed EUR 57,320 in respect of non-pecuniary damage.", "70. The Government contested these claims.", "71. As regards the applicant ’ s claim for pecuniary damage, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court notes that under section 428a of the Civil Procedure Act (see paragraph 24 above) an applicant may seek the reopening of the civil proceedings in respect of which the Court has found a violation of the Convention. Given the nature of the applicant ’ s complaint under Article 10 of the Convention and the reasons for which it has found a violation of that Article, the Court considers that in the present case the most appropriate way to repair the consequences of that violation would be to reopen the proceedings complained of. As domestic law allows such reparation to be made, the Court considers that there is no call to award the applicant any sum in respect of pecuniary damage. It therefore rejects that claim.", "72. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards her EUR 1,500 under that head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "73. The applicant also claimed EUR 9,805 for the costs and expenses incurred before the domestic courts.", "74. The Government contested that claim.", "75. The Court notes that the applicant did not submit any claim for costs and expenses incurred in the proceedings before it. The Court therefore considers that there is no call to award her any sum on that account.", "76. The applicant ’ s claim for costs and expenses incurred in the domestic proceedings must likewise be rejected, given that she will be able to claim those costs in the proceedings following her petition for reopening (see paragraph 71 above, and Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013 ).", "C. Default interest", "77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1967 and lives in Wrocław.", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "7. The applicant is a film director, historian, and author of press articles often commenting on current issues. The Government contested that the applicant could be considered a journalist.", "8. On 20 April 2007 the applicant participated in a debate on a regional radio station, Polskie Radio Wrocław. During the debate he stated as follows:", "“... among the informers ( informator ) of the [communist-era] secret political police is Professor [J. M.] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so.”", "9. On the same day the applicant called Mr J.M. an “informant” ( konfident ) on television. The matter was widely commented on in the media.", "10. On 17 May 2007 a special commission set up at Wrocław University to examine the problem of covert surveillance of academics issued a statement in the case of Mr J.M. The statement included a list of documents concerning Mr J.M., which had been found in the archives. The commission concluded that those documents had not led it to the unequivocal conclusion that Mr J.M. had been a collaborator with the secret police.", "11. On 24 May 2007 Mr J.M. brought a civil action for protection of his personal rights against the applicant.", "12. On 3 July 2008 the Warsaw Regional Court allowed the action. It ordered the applicant to pay 20,000 Polish zlotys (PLN) to a charity and to reimburse the claimant PLN 5,800 for the costs of the proceedings. The applicant was also ordered to publish an apology for having damaged the claimant ’ s good name in six national and regional newspapers, on three national TV channels and on Radio Wrocław. The court considered that the applicant had clearly used several expressions indicating that the claimant had been a secret collaborator with the communist-era secret services. The main question to be considered was whether such statements could be considered true.", "13. The court noted that Mr J.M. was a distinguished linguist and well ‑ known person in Poland. He was a member of the Polish Language Council and for many years had been presenting a programme on television. The court established that between 1975 and 1984 Mr J.M. had been summoned by agents of the secret services on five occasions for interviews in connection with applications he had made for passports and returns from stays abroad. This was not contested by the claimant, who had himself made this information public. In 1978 Mr J.M. had been formally registered as a secret collaborator (a “TW”). Other notes from the Institute of National Remembrance (“ IPN”) archives indicated that until 1989 a two-volume file on the claimant had existed; however, the file could no longer be found at the Wrocław branch of the IPN.", "The court noted that the case of Mr J.M. had been examined by a special commission set up at Wrocław University to examine the problem of covert surveillance of academics, but that the commission had been unable to reach any unequivocal conclusions.", "14. The trial court heard the applicant and the claimant as well as a number of witnesses: historians (specialists on lustration), former agents of the secret services assigned to recruiting collaborators at Warsaw University, and employees of the IPN. Some of them testified that many files on secret collaborators had been destroyed when the regime fell in 1989. A few witnesses testified that they had not known of any case of fictitious registration of somebody as a secret collaborator or of a situation in which the services had kept a file on somebody for many years even though he or she had not actually been collaborating.", "The director of the Wrocław branch of the IPN testified that he had heard of an instance of fictitious registration of somebody as a TW. However the probability of such a situation was very low. He also declared that on the basis of the available documents, he would not have concluded that the claimant had been a communist police informant. Another historian called to testify declared that it had been impossible to draw any unequivocal conclusions. A third historian stated that the claimant had been a “real agent of the security service”. A fourth historian testified that the internal files of the secret services were reliable; the regime would only falsify documents for external purposes. The same witness considered that on the basis of the information available to him, he would also have concluded that Mr J.M. had been an intentional and secret collaborator with the communist-era secret services.", "Two other witnesses, former agents of the secret services, were unable to remember whether they had recruited Mr J.M. as a secret collaborator.", "15. The applicant submitted that once he had discovered that Mr J. M. was on the list of secret collaborators with the secret services it had been his duty to inform the public about it. His intention had not been to offend the claimant. He had acted in the general interest, taking part in a public debate on matters of considerable importance to society. Moreover, his assertion had been provoked by public statements made by the claimant, who had questioned the importance of lustration. The applicant also argued that he had not alleged that the claimant had caused harm to other people or that he had been paid for his services. The information provided by him - that J. M. had been a collaborator - had therefore been truthful and given in the public interest.", "16. Nevertheless, the court noted that no documents confirming that the claimant had agreed to be a collaborator or that he had actively reported to the secret services were available. The court referred to the definition of collaboration contained in the 1997 Lustration Act and reiterated that collaboration had to be intentional, secret and consist of passing on information. It concluded that registration by the secret services alone was not sufficient to consider that someone had been a secret collaborator.", "17. The applicant lodged an appeal against the judgment. He argued that the registration of Mr J. M. as a secret collaborator by the services, in light of generally known facts, had allowed him to conclude that he had been a collaborator. Mr J. M. had remained registered as a TW for eleven years, his files had been destroyed, and the secret services had not been known for falsifying their internal files. According to historians, in 1989 the services had only destroyed the files of important collaborators. The applicant underlined that he had acted in the general interest as the claimant had been a public figure who had recently criticised the process of lustration.", "18. On 29 October 2008 the Wrocław Court of Appeal dismissed the appeal. It further ordered the applicant to pay the claimant PLN 2,000 as reimbursement of the costs of the appellate proceedings. The court accepted all the findings of the first-instance court regarding the facts of the case. It considered that when personal rights had been breached by a statement of alleged facts, the illegality of such action could be excluded only if the statement contained truthful information. Acting in the general interest did not exclude responsibility for making untrue statements. In the present case there was no evidence, in the form of either documents or witness statements, proving that Mr J. M. had indeed actively collaborated with the secret services. Therefore, in the light of the material collected in the case, the court concluded that the applicant had not proved the veracity of his statements. Furthermore, the court considered that the applicant had not fulfilled his duty to act with particular diligence and caution in making serious allegations on the basis of unconfirmed circumstantial evidence.", "19. The applicant lodged a cassation appeal against the judgment and requested that a hearing be held.", "20. At the hearing, held on 10 September 2009, the Supreme Court announced the judgment and gave an oral summary of the reasons. It dismissed the applicant ’ s cassation appeal but amended the text of the apology and limited its reach to one national daily newspaper and Radio Wrocław. The applicant was ordered to reimburse the claimant a further PLN 2,000 for the costs of the cassation proceedings.", "The text of the apology to be published by the applicant was as follows:", "“I apologise to Professor J. M. for having made, on 20 April 2007, the untrue assertion that he had been an informer of the [communist-era] political police”.", "21. Following the announcement of the judgment the applicant ’ s lawyer requested the court to prepare written reasons and to deliver them to him. The Supreme Court ’ s judgment with reasons, fifteen pages long, was received by the applicant ’ s lawyer on 30 November 2009.", "22. In analysing the interplay between two competing rights – the right to freedom of expression and the right to protect one ’ s good name – the court referred to a resolution of the Supreme Court (18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114). According to the conclusion of this resolution a journalist ’ s actions would not be considered illegal if they were made in the public interest and the duty to act with due diligence was fulfilled. Imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a democratic society. However, the Supreme Court considered that this approach could not be applied to the applicant ’ s case as his statement had been of a private nature and the applicant could not be considered to be a journalist with a socially necessary duty to inform. Therefore, the interpretation of the law adopted by the lower courts was correct. Making false allegations was illegal, whereas the question of due diligence would be taken into account only when assessing the fault of the defendant.", "23. The court agreed with the facts as established by the lower courts in particular as regards the conclusion that the statement made by the applicant had not been true. Following the approach taken in the case thus far, the court considered that making an untrue statement that offended the personal rights of a person would always be contrary to the law. Breaching someone ’ s personal rights would not be against the law only if the statement could be proven to be true. An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis. In consequence, whether the applicant had acted in good faith and in the public interest or believed that the statement had been true did not influence the illegality of his action and could only be considered when assessing his financial liability for offending the personal rights of Mr J.M." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "24. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” ( dobra osobiste ). This provision states:", "“The personal rights of an individual, such as, in particular, health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”", "25. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.", "26. The definition of collaboration was the same under the Law of 11 April 1997 on disclosing work for or service in the State ’ s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (section 4(1) of the 1997 Lustration Act) and the new Lustration Act of 2006 (section 3 a(1)). It provided as follows:", "“Collaboration within the meaning of this law is an intentional and secret collaboration with operational or investigative branches of the State ’ s security services as a secret informer or assistant in the process of gathering information.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "27. The applicant complained under Article 10 of the Convention of a breach of his right to freedom of expression. This Article reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "28. The Government contested that argument.", "A. Admissibility", "29. The Government raised a preliminary objection that the applicant had failed to comply with the six-month time-limit as required under Article 35 § 1 of the Convention. They referred to the fact that the final judgment in the applicant ’ s case had been given by the Supreme Court at the hearing of 10 September 2009 while the applicant had lodged his application with the Court on 29 May 2010. The Government underlined that the applicant had not been entitled to be served automatically with a copy of the judgment with the reasoning as the judgment had been delivered at a hearing.", "30. The applicant disagreed. He submitted that he had had the right to be served with a copy of the Supreme Court ’ s judgment with the reasoning and had availed himself of that right. Moreover, an oral summary of the reasons presented at the hearing had not been a sufficient basis on which to prepare an application alleging a breach of the Convention. The applicant received that judgment with reasons on 30 November 2009 and he had lodged his application with the Court within less than six months from that date.", "31. The Court notes that the Government alleged that the applicant had introduced his application out of time and that it should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. The Court observes that the Supreme Court held a hearing on 10 September 2009 at which it announced the ruling and gave the main lines of reasoning orally (see paragraph 20 above). Subsequently, it was open to the applicant to apply to be served with a written copy of the full version of the reasons. The applicant ’ s lawyer did that and on 30 November 2009 he received the judgment with the reasoning (see paragraph 21 above). While it is true that the written copy of the Supreme Court ’ s judgment was not served automatically, nevertheless this service was available to the applicant upon request and its long delay was exclusively the responsibility of the judicial authorities. The said judgment, which in its final version ran to fifteen pages, contained detailed legal reasoning. In those circumstances the Court considers that the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, § 33, 29 August 1997, Reports of Judgments and Decisions 1997-V, and Jałowiecki v. Poland, no. 34030/07, § 21, 17 February 2009 ). The applicant lodged his application with the Court on 29 May 2010, thus within less than six months from the date the judgment was served on him. It could not therefore be said that the application was introduced out of time. The Government ’ s objection should be dismissed.", "32. The Court notes that application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Arguments of the parties", "33. The applicant submitted that he had been an active journalist for many years and had often participated in public debates on issues relating to the recent history of Poland. The radio debate from which the present case originated was one of a series of public discussions on a range of political issues, including lustration. He had, therefore, been fulfilling his rightful mission to inform the public about an important matter relating to a public figure. The applicant had become aware that Mr J.M. had been a collaborator with the secret services after having consulted all the available documents and other sources which he needed to protect. He had not intended to offend Mr J. M. but only to contribute to a debate about the importance of lustration, which J.M had criticised. Taking into account all those elements the applicant considered that his statement did not overstep the limits of protection afforded to him by Article 10 of the Convention.", "34. The Government considered that the application was manifestly ill ‑ founded. They contested that the applicant should be treated as a journalist; however, in any event he had not complied with the ethical rules of diligent and responsible journalism. He was well acquainted with the issues of lustration and had thus been aware of the nature and severity of his accusation against Mr J.M. The Government underlined that being registered by the secret services had not been the same as being an informant or actual collaborator. However, the applicant had not provided any evidence supporting, even partially, his allegation.", "35. The Government concluded that it had been necessary in the instant case to protect the rights of Mr J.M. from untrue defamatory allegations made by the applicant. The applicant was found liable in civil proceedings and ordered to publish an apology, reimburse the claimant ’ s costs, and make a payment to a charity. The consequences of the interference had been much more lenient than they would have been had the applicant been convicted in criminal proceedings.", "2. The Court ’ s assessment", "(a) General principles", "36. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII).", "37. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).", "38. The test of whether an interference is “necessary in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).", "39. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”.", "There is no doubt that Article 10 § 2 enables the reputation of others ‑ that is to say, of all individuals – to be protected; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues (see Lingens, cited above, § 42).", "40. The Court reiterates that the protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Fressoz and Roire, § 54; Bladet Tromsø and Stensaas, § 58, and Prager and Oberschlick, § 37, all cited above). The same principles must apply to others who engage in public debate (see Steel and Morris v. the United Kingdom, no. 68416/01, § 90, ECHR 2005 ‑ II).", "41. The Court ’ s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, 25 November 1997, Reports 1997-VII, pp. 2547-48, § 51).", "(b) Application of the general principles to the present case", "42. The Court notes that it is undisputed that the civil proceedings against the applicant amounted to an “interference” with the exercise of his right to freedom of expression. The Court also finds, and the parties agreed on this point, that the interference complained of was prescribed by law, namely Articles 23 and 24 of the Civil Code, and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention to protect “the reputation or rights of others”. Thus the only point at issue is whether the interference was “necessary in a democratic society” to achieve that aim.", "43. The applicant in the instant case took part in a radio debate during which he stated that the claimant, Mr J.M., had been a secret collaborator with the communist regime. The domestic courts examined the veracity of this statement, heard experts and researched the remaining files of the communist-era security services. Although they confirmed that the claimant had indeed been registered as a collaborator and in the past there had been a two-volume-file on him, the file in question could no longer be found. The courts thus concluded that it could not be proven that the claimant had intentionally and secretly collaborated with the regime within the meaning of the domestic law on lustration. The applicant ’ s statement was considered untrue. According to the domestic court ’ s assessment untrue statements infringing upon another person ’ s rights had to be considered illegal.", "44. The Court takes note that the accusation was serious for Mr J.M., who is a well-known and popular language specialist. To call somebody a secret collaborator with the communist-era security services carries a negative assessment of his behaviour in the past and is surely an attack on his good name. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and Couderc and Hachette Filipacchi Associés v. France, no. 40454/07, § 53, 12 June 2014 ). The domestic authorities were therefore faced with the difficult task of balancing two conflicting values, namely freedom of expression of the applicant on the one hand and Mr J.M. ’ s right to respect for his reputation on the other ( see Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012).", "45. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention (see paragraph 41 above).", "46. The Court notes that the Supreme Court differentiated between the standards applicable to journalists and those applicable to other participants in the public debate. It did so, without examining whether such a differentiation would be compatible with Article 10 of the Convention. According to the Supreme Court, the standard of due diligence and good faith should be applied only to journalists who fulfil an especially important social function. Other persons were required by the Supreme Court to meet a higher standard in that they were to prove the veracity of their allegations ( see paragraph 22 above). In such case the question of due diligence would be taken into account only when establishing their fault i.e. the sanction. In the instant case the domestic courts found the applicant to be in the latter category, and in view of his inability to prove the truth of his statement, they concluded that he had breached the claimant ’ s personal rights.", "47. The Government and the domestic courts claimed that the applicant was not a journalist. On the other hand the applicant insisted that he had been active in professional journalism for many years. However, in any case the question of whether the applicant was a journalist within the meaning of the domestic law, is not of particular relevance in the circumstances of the instant case. The Court reiterates that the Convention offers a protection to all participants in debates on matters of legitimate public concern.", "48. The Court notes that the applicant was a historian, the author of press articles and television programmes, and someone who actively and publicly commented on current affairs. The domestic courts acknowledged that the applicant was a publicist and that given his professional experience, and the fact that he was a “specialist” on the subject, he had been invited to participate in the radio programme on lustration. Nevertheless they found the applicant ’ s intervention to be of a private nature. The Court also notes that when assessing the legality of his actions the Supreme Court failed to address the question of whether the applicant had been engaged in public debate.", "49. The Court is not called upon to prejudge whether the applicant in the instant case relied on sufficiently accurate and reliable information. Nor will it decide whether the factual basis on which the applicant had relied on justified the nature and degree of the serious allegation he had made. This was the task of the domestic courts, which are in principle better placed to assess the factual circumstances of the case. However, when deciding these issues the domestic courts should observe the standards of freedom of expression enshrined in the Convention.", "50. The Court considers that the applicant in the case under consideration had clearly been involved in a public debate on an important issue (see Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 42, 27 May 2004 ). Therefore the Court is unable to accept the domestic courts ’ approach that required the applicant to prove the veracity of his allegations. It was not justified, in the light of the Court ’ s case-law and in the circumstances of the case, to require the applicant to fulfil a standard more demanding than that of due diligence only on the ground that the domestic law had not considered him a journalist.", "The domestic courts, by following such an approach, had effectively deprived the applicant of the protection afforded by Article 10.", "51. Although the national authorities ’ interference with the applicant ’ s right to freedom of expression may have been justified by a concern to restore the balance between the various competing interests at stake, the reasons relied on by the domestic courts cannot be considered relevant and sufficient under the Convention. This conclusion cannot be altered by the relatively lenient nature of the sanction imposed on the applicant.", "There has accordingly been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. The applicant claimed PLN 50,000 in respect of pecuniary damage. This sum represented PLN 2,000 and PLN 5,800 paid by the applicant to the claimant as reimbursement of the costs of the proceedings, PLN 20,000 paid to a charity and the costs of publishing the apology ordered by the domestic courts. The applicant attached a notice from the court ’ s bailiff ordering him to pay PLN 33,000 (approximately EUR 8,000 euros (EUR)) in execution of the judgments together with fees.", "As regards non-pecuniary damage, the applicant claimed EUR 10,000.", "54. The Government considered that the claims were excessive and unsubstantiated.", "55. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage as the first applicant referred to the amount which he was ordered to pay by the domestic courts (see Busuioc v. Moldova, no. 61513/00, § 101, 21 December 2004, and Kuliś and Różycki v. Poland, no. 27209/03, § 44, 6 October 2009). The Court awards the first applicant the sum claimed in full, that is, EUR 8,000.", "56. The Court accepts that the applicant also suffered non ‑ pecuniary damage which is not sufficiently compensated for by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head.", "B. Costs and expenses", "57. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court. He attached an invoice from his lawyer.", "58. The Government considered the applicant ’ s claim excessive.", "59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full.", "C. Default interest", "60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant company has its registered office in Paris. The other two applicants were born in 1946 and 1957 respectively and live in Paris and Saint-Cloud.", "7. In its issue no. 1272, dated 1 February 1997, the weekly magazine Le Point published an “investigation” headlined “ Vichy : Around the Papon Case”. Several pages focused on Mr Michel Junot, under the headline “1942-1943 Revelations: Michel Junot, deputy to mayor Jacques Chirac on the Paris City Council from 1977 to 1995, was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. The article included the following passages:", "“'It has to be said that, all political consideration set aside, Vichy's civil servants gave a remarkable example of efficient, skilful and honest administration .'That good-conduct citation, awarded in 1981, does not come from Maurice Papon, who has now been committed to stand trial in the Bordeaux Assize Court for'complicity in crimes against humanity'. Those are the exact words used in L'illusion du bonheur, a book published ... by Michel Junot, a deputy mayor when Jacques Chirac ran Paris City Council between 1977 and 1995, who knows his subject, since he was Deputy Prefect in Pithiviers, in the département of Loiret, in 1942 and 1943. In that capacity he supervised the maintenance of order in the camp of that town, where thousands of Jews were interned before being deported to Auschwitz. Unlike Maurice Papon – and this is a significant difference between the two cases – he did not order anyone to be arrested, interned or transferred to Drancy.", "After the war Michel Junot enjoyed a brilliant career in France's highest administrative spheres before turning to politics. He was to become a member of parliament for Paris from 1958 to 1962, giving his allegiance to the CNI, which he never left. But it was on Paris City Council, where he served as mediator from 1977 to 1989 that he spent the longest part of his career. He is a former MEP and since 1978 has been the president of the Maison de l'Europe in Paris.", "Until now, he has always maintained that the internment camps in his district, Pithiviers, and Beaune-la-Rolande some twenty kilometres away, were not under his control. His main duties were to inspect the local districts and to compile'general and confidential information'files on local dignitaries. The Pithiviers camp?'it was not under my jurisdiction. I never set foot in it'he told L'Express magazine in 1990.", "An outright denial which is, however, inconsistent with several documents not previously published which Le Point has managed to obtain. Documents which clarify his field of activity.", "... when he was appointed Deputy Prefect at Pithiviers on 9 June 1942 ... the camps at Pithiviers and Beaune-la-Rolande, originally intended for German prisoners of war, were already being used as internment camps prior to their inmates being deported, the first having left on 8 May 1942.", "Michel Junot, who was to remain in office for exactly a year to the day, took up his post in Pithiviers on 24 August 1942, that is, less than a month before the departure, on 20 September 1942, of a fresh transport of Jewish deportees.", "On that day a thousand detainees arrested during house-to-house searches in the Paris region, including 163 children under 18, were put on transport no. 35 and shipped off to Auschwitz via Drancy, the camp to the north of Paris.", "On the eve of their departure, Michel Junot informed the Prefect of his concerns about maintaining order.'I hereby inform you that I have just been notified of the entrainment of a thousand Jews from the Pithiviers camp tomorrow from 5 p.m. onwards at Pithiviers railway station, and that all the gendarmes in my district apart from one officer per squad are therefore required to assist with the entrainment ... .'...", "Two days later, on 2 2 September, Junot did not hide his satisfaction when sending the Prefect the following report:'The day of 20 September 1942 went very smoothly throughout my district. The limited police presence planned for the afternoon of 20 September could not be deployed ... because all the gendarmes in the area, except for one officer per squad, were required for the entrainment of the Jewish detainees of the Pithiviers camp, whose departure I was suddenly notified of on 19 September at 3 p.m. The entrainment was to take place between 4 and 7 p.m. at Pithiviers station at the far end of the avenue de la République where the communists had called on ... the inhabitants of Pithiviers to demonstrate at 6.30 p.m., and I was concerned that some incidents might occur which could disrupt an orderly departure. But nothing of the sort happened and the town remained perfectly calm.'...", "Then, in a'monthly report'drafted eight days later for his superiors, he scrupulously went over the events again.", "On 30 September 1942 he reported in detail on the situation in the two'internment camps', as he headed the third paragraph of his report.'The Beaune-la-Rolande camp, which has been empty since the end of August, has been cleaned', Junot stated.'The conditions there are now excellent. Two transports of Jews passed through and spent twenty-four hours there before leaving for Drancy. There are only about twenty detainees left at the camp, doing maintenance work.'", "Michel Junot went on:'The Pithiviers camp had been occupied since the end of August by 1,800 Jewish internees of all categories, French and foreign, men, women and children, some arrested during the August and December 1941 round-ups, others for having infringed the regulations of the occupying forces (demarcation line, wearing the star of David, etc.). All of them, except those married to Aryans and a few mothers of young children, were placed on trains bound for Germany on 20 September. Finally the last internees left Pithiviers in the evening of the 24th for Beaune-la-Rolande so as to clear the camp, which was due to receive communist internees. In fact this last Jewish transport spent only twenty-four hours in Beaune before being sent on to Drancy on the orders of the occupying forces.'", "Drancy was the last stop in France before they were deported to Germany and the final solution: their physical destruction. ...", "On reading this dry civil servant's prose, the Acting Prefect of Loiret, Jacques Marti-Sane, expressed his satisfaction in writing. He was pleased with the orderliness which had prevailed during the entrainment of the deportees, who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers.", "In an internal memorandum dated 1 October 1942 – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture, who was responsible for organisation and surveillance:'The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions. In any event, in his capacity as the government representative in Pithiviers, he has the right to monitor the proper functioning of the camps. Accordingly, it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect, so that he is not bypassed.'...", "No fewer than seven transports left from camps in Loiret between June and September 1942, the last one under Junot's responsibility.", "In his October report, the Deputy Prefect expressed his concerns over the difficulty in maintaining order in Beaune-la-Rolande, which was full of'French and foreign Jews who have contravened the regulations of the occupying forces (in particular, attempts to cross the demarcation line) and whom the German police have sent to the Beaune camp'. As a conscientious official, Michel Junot went so far as to suggest:'If there is a further rise in the number of internees, we should make plans to strengthen the security arrangements.'", "In the same report, he pointed out that communists were gradually replacing the Jews in Pithiviers, though there were still 1,574 of the latter on 30 October 1942 compared with 1,798 on 26 September.", "' The presence of this camp inside my district means that the sub-prefecture is receiving a number of letters asking for leave to visit and even for people to be released. I have had some standard-form replies drafted explaining that I have no power to take such measures and that only the Prefect who took the internment decision has any authority in that respect. There is nothing to report from the camp, which is guarded most efficiently by a detachment of gendarmes', he wrote.", "...", "On the day of the liberation of Orléans, 16 August 1944, Michel Junot was present. He waved the tricolour from the balcony of Loiret's prefecture. And he stood at the head of the prefecture steps to welcome André Mars, the commissaire de la République sent by General de Gaulle. But that did not stop him being swept away in the subsequent purge. On 14 December 1945, ten months after awarding Junot a'certificate of participation in the Resistance', de Gaulle signed a decree removing him from office. The hero of Free France was acting in response to a decision of the National Purification Commission based on a report from the Loiret departmental liberation committee stating that Junot was'a typical careerist, devoid of all moral scruples, not to be allowed to hold any kind of public office'.", "However, like many servants of the French State, Junot claimed to have been playing a double game. He explained that he had worked for a'network'of the Central Intelligence and Action Bureau ... citing his activity on behalf of General de Gaulle's intelligence service in London under the Occupation and the medals he had received as a result. He must have been persuasive, because when peace returned he was to be found once more as permanent secretary to various Ministers, before becoming a deputy prefect again in 1956 and then prefect in 1957. ... ”", "8. An interview with Mr Junot was also published as part of the investigation. It included the following statement by him:", "“ ... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps. At that time I did not know who was interned there. There had been communists, at the time of the breaking of the Germano-Soviet pact. And there were foreign Jews. We did not know their ultimate destination. We only knew that they were going to Drancy. Rumour had it that they were being sent to work in salt mines in Poland. We obviously knew that they were not going off on a pleasant holiday. But I did not learn of the existence of the extermination camps until April 1945 when the first deportees returned.", "When I took up office, on 24 August 1942, all the transports except one had already left.”", "When the interviewer asked Mr Junot if he thought this “ renewed interest in those dark years” was “necessary for the young generations” he replied: “If Frenchmen in those days made mistakes, or sometimes committed war crimes, I think there is the discreet veil of history ... ”", "9. At 5 p.m. on 31 January 1997 the third applicant, who is a journalist with France Info (a radio station controlled by the applicant company), broadcast the following report:", "“According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.”", "The way in which France Info operates is for the presenter to broadcast live, with two news bulletins and two news flashes per half-hour. He then breaks for an hour to update his information before going on air again. The above-mentioned broadcast was accordingly repeated by the third applicant and by other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, in either the same or a slightly different form. However, the broadcasts systematically specified that the report was based on an article published in Le Point. After 11 p.m., a number of news bulletins and flashes mentioned the fact that, “unlike Maurice Papon”, Michel Junot had never issued any orders for anyone to be arrested, interned or transferred to Drancy, sometimes adding that he was “responsible only for keeping order”.", "On 1 February 1997, from 5.45 a.m. onwards, several news bulletins and flashes (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the allegations published in Le Point. According to the applicants, this point was made systematically after 11.04 a.m.", "10. Mr Junot brought proceedings in the Paris Criminal Court against the second applicant, who is publishing director of the applicant company (the publisher), the third applicant and the applicant company as principal, accessory and civilly liable respectively for the offence of public defamation of a civil servant, contrary to sections 29, first paragraph, and 31, first paragraph, of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”).", "In their defence, the applicants argued that the case under section 31 of the 1881 Act was inadmissible, because Mr Junot had been retrospectively stripped of his status as a civil servant at the time of the Liberation. They also contended that the prosecution's case against the second applicant was inadmissible: the disputed statement had been broadcast live and its content could not therefore be construed as having been “fixed prior to being communicated to the public” within the meaning of section 93 - 3 of the Audiovisual Communication Act of 29 July 1982 (“the 1982 Act”). Moreover, they submitted that the third applicant had acted in good faith. In that connection, they argued that public interest in the period of the Occupation had been revived by the news of the Papon trial; that the third applicant had been in possession of the article published in Le Point on the previous day along with three agency dispatches; that it had been reasonable to link the cases of Mr Junot and Mr Papon because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers; that the use of the conditional tense and the absence of any personal comment about Mr Junot demonstrated the journalist's caution; and that France Info had reported Mr Junot's denials from 6 a.m. on 1 February onwards.", "11. By a judgment of 25 November 1997, the Paris Criminal Court (Seventeenth Division) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant. It fined them 20,000 French francs (FRF) each and ordered them jointly to pay FRF 50,000 in damages. It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on France Info every thirty minutes during a twenty-four hour period in the month following the date on which the judgment became final.", "With regard to the defamatory nature of the disputed allegations, the judgment reads as follows:", "“Mr Junot is alleged ... to have personally played an active role in the deportation of Jews in his capacity as Deputy Prefect of Pithiviers. This allegation, which undoubtedly damages the honour of the civil party, is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before the Gironde Assize Court to answer charges that he participated in crimes against humanity – and that of Mr Junot, with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period, over which he believes that'the discreet veil of history should be drawn'.", "The fact that it was specified that,'unlike Maurice Papon', Michel Junot'did not issue any orders for anyone to be arrested, interned or transferred to Drancy'in no way detracts from the seriousness of the charge levelled at the civil party; the same can be said of the use of the conditional tense throughout the broadcasts.", "The allegations in question also cast doubt on Mr Junot's membership of the Resistance, which was reported as a mere'claim'on his part, and suggested that he had been stripped of his status by General de Gaulle at the end of the war. These words also damage the civil party's honour and reputation.”", "The court found that Mr Junot had never lost the rank of Deputy Prefect, and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority. It found that section 31 of the 1881 Act was therefore applicable.", "With regard to the good faith of the third applicant, the court found as follows:", "“There being a presumption that defamatory statements are made in bad faith, it is for the defendants to prove their good faith.", "It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence; such journalistic practice is particularly to be deprecated, because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty.", "This is what happened with Mr Junot: having assumed that the enquiries made by his fellow journalists at Le Point were reliable, Bertrand Gallicher simply repeated the magazine's allegations against the civil party without checking them.", "As evidence that he had carried out a serious investigation, Bertrand Gallicher told the Court that he had been in possession of the article published in Le Point on the previous day, and of three agency dispatches; however these dispatches, which simply quoted large sections of the magazine article, could not, without more, provide the journalist with a legal defence.", "The journalist also produced the documents mentioned in Le Point : the Prefect's memorandum of 1 October 1942, Michel Junot's notes of 19 and 22 September 1942 and the monthly reports for September and October 1942; however, these documents did not give him grounds for asserting that Michel Junot, Pithiviers Deputy Prefect, had supervised the deportation of a thousand Jews or that he had admitted having organised the departure of a transport of Jewish deportees.", "Neither the memorandum from the Prefect of Loiret dated 1 October 1942 specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant, nor the memorandum of 19 September 1942 to the Prefect signed by Michel Junot and expressing his concerns about keeping order on 20 September 1942 in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the'entrainment of a thousand Jews', nor the report drawn up by Michel Junot on 22 September 1942 on the events of the day, which had been'perfectly calm', prove that Michel Junot, Deputy Prefect, had played a personal part in the organisation and departure of that transport for Drancy. In fact, what these documents show is that he complained of having been notified only belatedly of the'entrainment of a thousand Jews', that he did not receive copies of all the instructions sent to the camp commandant, a memorandum from the Prefect having been required to ensure that he was not'bypassed'and that his concern was to maintain order outside the camps.", "Michel Junot's monthly reports for September and October 1942 do not carry any more evidential weight in this respect; while the first mentions that most of the Jews in the Pithiviers camp had been'entrained'on transports bound for Germany on 20 September 1942; while both report on the occupancy rate of the two internment camps situated in his district and thus establish his'responsibility in principle'for the camps (using Mr Serge Klarsfeld's formula); while they keep the Prefect informed of relations with the German forces and the circumstances in which the anti-Jewish laws were being applied and certainly show that Mr Junot was performing his functions of Deputy Prefect under the Occupation with zeal and determination, and without being troubled by too many scruples, they nonetheless do not prove that he played a personal part in the deportation of Jews or that he organised the departure of a transport of Jewish deportees.", "Turning to the other documents cited by the defence, namely a letter dated 19 September 1942 from the secretary-general for the police on the Conseil d'Etat to the Orléans Regional Prefect and the latter's reply dated 21 September 1942, and a memorandum dated 19 September 1942 from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent, they cannot be regarded by the Court as having any evidential weight, since they are merely summarised on a plain sheet of paper.", "In short, the documents in Bertrand Gallicher's possession did not give him grounds for alleging that Mr Junot was guilty of having participated in crimes against humanity.", "Nor did these documents entitle the presenters who came on air after 0.33 a.m. on 1 February to repeat the allegation that the plaintiff had supervised the Jewish internment camps of Pithiviers and Beaune-la-Rolande and the maintenance of order in both camps.", "Lastly, the testimony of Mrs Mouchard-Zay recounting the dramatic circumstances of the various round-ups of Jewish men, women and children, the conditions in which they were transferred to and arrived in the two camps of Pithiviers and Beaune-la-Rolande, and the dramatic change in public opinion which coincided with these events, does not prove that Mr Junot played any part in the organisation of these deportations.", "While being aware of the professional constraints imposed by the need to break news rapidly, which is inherent in the very nature of radio, the Court notes that the journalists, far from merely reporting raw news objectively, endorsed the interpretation adopted by some of their fellow journalists, while going further by making a connection with the'Papon case', no doubt with the intention of making the story more sensational.", "The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations.", "In relation to the allegation that Mr Junot was not a genuine member of the Resistance, the Court finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities, which in any event have been vouched for by Jean-Claude Aaron, the leader of the Masséna network, by Colonel Rémy and by several people of Jewish descent who described the help he had given them during the Occupation.", "For all of the above reasons, the Court is unable to accept that [the third applicant] acted in good faith.”", "The court found the second applicant, in his capacity as publishing director, not liable for the first broadcast, which had been made live by the third applicant on 31 January at 6 p.m. It found, however, that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air, and considered that such “systematic repetition of the disputed statements” should be construed as “rolling broadcasting” within the meaning of section 93 - 3 of the 1982 Act. The court concluded as follows:", "“[The second applicant], as publishing director, whose duty it is to control what is broadcast on the channel for which he is responsible, is therefore liable in law as principal for the offence of defamation.”", "12. On appeal by the applicants, the Paris Court of Appeal (Eleventh Criminal Appeal Division) upheld the judgment of 25 November 1997 by a decision of 17 June 1998.", "On the question of the defamatory nature of the offending bulletin's content, it ruled as follows:", "“Words may be defamatory as the result of an insinuation, a question or an assertion. In addition, words must be assessed both in terms of their intrinsic meaning and in the light of their context.", "Attributing to Mr Junot responsibility for supervising the deportation of a thousand Jews and organising their despatch to Drancy was plainly an attack on his honour and dignity. The defence arguments ... tending towards proving the truth of the facts is not relevant here, quite apart from the fact that no evidence to that effect has been adduced. Moreover, comparing Mr Junot's position to that of Mr Papon, who had indeed just been committed for trial in the Bordeaux Assize Court, also necessarily had a defamatory resonance.", "The same defamatory classification must also be given to the passage'[Mr Junot] ... claims to have been in the Resistance'. Coming as it does between the reference to his being sacked by General de Gaulle and the comparison to Mr Papon, this can only insinuate that Mr Junot's assertion was false.”", "On the question of good faith, the judgment said:", "“Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language.", "There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation, particularly as regards one of the main dramas of that time, the deportation and extermination of Jews, is perfectly legitimate.", "Nothing in the file reveals any particular animosity on the journalist's part towards the civil party.", "On the other hand, the preliminary investigation was singularly lacking in rigour. The civil party has rightly observed that Mr Gallicher began to broadcast his remarks at 6 p.m. on 31 January, in other words when the issue of Le Point dated 1 and 2 February had just come out.", "In seeking to establish their good faith the defence cite three dispatches (AFP, AP and Reuters) which mentioned the article in Le Point and the content of a television programme in which Mr Junot had taken part. But the use of agency dispatches as one's main source, especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made, if not to conduct an investigation, then at least to check the information. In addition, the wholly gratuitous assertion that Mr Junot admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view.", "As regards the debate about whether Mr Junot had been a member of the Resistance, the Criminal Court rightly noted that the documents produced by the defence were not sufficient evidence to the contrary, whereas his participation has been attested to by the leader of the Masséna network, Jean-Claude Aaron, by Colonel Rémy and by a number of persons of Jewish origin who have drawn attention to Mr Junot's courageous attitude.", "Moreover, the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal, and here it should be noted, as clarification of this point may be helpful, that neither the use of the conditional tense pleaded in defence, nor the mention – very late in the day – of Mr Junot's denials, affect the gravity of the allegations made in dispatches broadcast several dozen times.", "The content of the documents which the defendants learned of in Le Point is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect Junot's attitude at the time of the departure of the last transport of Jewish deportees on 20 September 1942.", "The memo of 19 September from the deputy prefect to his prefect ... said:'I have just been notified of the entrainment of a thousand Jews ... tomorrow', and he complained that he would therefore not have sufficient manpower to control a communist demonstration.", "The same deputy prefect sent a memo, dated 22 September, informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly.", "The memo of 1 October 1942 from the Prefect of Loiret seems to echo his subordinate's concerns about being informed in stipulating that the deputy prefect'in his capacity as the government representative ..., has the right to monitor the proper functioning of the camps'.", "The reports sent by Michel Junot to his prefect in September and October 1942 describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them.", "The witness evidence heard in court did not provide any additional information about Mr Junot's duties.", "As to the other documents produced in court, the Criminal Court rightly found, for reasons which the Court of Appeal endorses, that they did not appear to have been in the defendants'possession at the time when the statement was broadcast. Moreover, they do not necessarily weaken Mr Junot's argument, since they include one memo he wrote on 15 April 1943 to the Prefect of Orléans about improving the food and bedding in the camps. It ends with the following sentence:'Although the management and administration of the camps does not form any part of my duties, I wish to bring this state of affairs to your attention ...'", "All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews.", "The plea of good faith is accordingly rejected. ”", "The Court of Appeal noted the following in relation to the liability of the second applicant under section 93 - 3 of the 1982 Act :", "“... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control. But this cannot be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect. It is significant in this respect that such steps were taken from the morning of 1 February onwards, when the content of the offending statement was amended. Moreover, it would be stretching the concept of prior fixing to contend that it must involve mechanical recording. Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means. Therein lies the difference from'live'broadcasting involving no repetition.”", "Moreover, by way of civil remedy, the court ordered the following announcement to be read out on France Info every two hours during a twenty-four hour period in the month following the date when the judgment became final:", "“By a judgment of the Paris Court of Appeal (Eleventh Division – Section A), Mr Bertrand Gallicher, journalist, and Mr Michel Boyon, publishing director of Radio France, were each fined FRF 20,000 and ordered to pay damages for having defamed Mr Michel Junot, former Deputy Prefect of Pithiviers. This judgment follows the broadcasting, on 31 January and 1 February 1997, of news bulletins falsely alleging that Mr Michel Junot had played a part in the deportation of a thousand Jews and wrongly casting doubt on his membership of the Resistance.”", "On the subject of the broadcasting of the above announcement, the judgment reads as follows:", "“The Court is minded to uphold the order for the broadcasting of an announcement by France Info, which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of Articles 6 and 10 of [ the Convention ] ...", "The Court does not agree, because freedom of expression under Article 10 of [ the Convention ] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others, which is the case here. It is true that the effect of this order, as indicated by the defence, will be to reduce the'editorial space'available to France Info, but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect.", "Lastly, it would be wrong to deny the claimant, whose rights are equally important, the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press.", "Further, nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of Article 6 of the Convention ...”", "13. The applicants appealed on points of law. They submitted that the Court of Appeal had failed to apply the principle whereby the criminal law must be strictly interpreted, in that it had extended the scope of the presumption raised by section 93 - 3 of the 1982 Act (whereby the publishing director is liable as principal where “the content of the offending statement has been fixed prior to being communicated to the public”) to cover a “communication method based on repetition”. Relying in particular on Articles 6 and 10 of the Convention, they also complained of the order in the disputed ruling to broadcast the above announcement on France Info, the essence of their argument being that “there [was] no basis in legislation for the publication of a judicial announcement, which [was] nothing less than punishment for a civil wrong”.", "By a judgment of 8 June 1999, the Court of Cassation (Criminal Division) dismissed the appeal for the following reasons, inter alia :", "“... In finding the publishing director liable as principal for the offence created by section 93 - 3 of the Audiovisual Communication Act of 29 July 1982, the Court of Appeal both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been, with the exception of the first bulletin, systematically broadcast on a rolling basis in exactly the same or in condensed form over a twenty-four hour period.", "It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public.", "The court applied the law correctly in so ruling.", "The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section 93 - 3 [cited above]. ...", "... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law, they may issue such an order by way of a remedy at the request of the civil party. Such a remedy, when ordered in a form achievable under the technical constraints of the medium in which publication is ordered, [does not breach] the Convention provisions cited in the appeal.”", "14. The announcement referred to in paragraph 12 above was broadcast on France Info between 31 July and 1 August 1999." ]

[ "II. RELEVANT DOMESTIC LAW", "15. The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 (as amended) are as follows:", "Section 29", "“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters.", "It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”", "Section 31", "“ Defamation by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be punishable [ by a fine of 45,000 euros].", "Defamatory statements about the private lives of the above persons shall be punishable under section 32 below. ”", "Section 41", "“The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press:", "1. Publishing directors and publishers, irrespective of their occupation or title ... ”", "16. Section 93 - 3 of the Audiovisual Communication Act of 29 July 1982 states:", "“In the event of one of the offences provided for in Chapter IV of the Freedom of the Press Act of 29 July 1881 being committed by an audiovisual operator, the publishing director ... shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public.", "...", "When the ... publishing director is prosecuted, the maker of the statement shall be prosecuted as an accessory.", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION", "17. The applicants complained that the criminal law had been extensively applied in that, when finding that “the content of the offending statement [had been] fixed prior to being communicated to the public” despite the fact that all the news bulletins and flashes concerned had been broadcast live, the domestic courts had based their finding of the second and third applicants'criminal responsibility on an interpretation by analogy of section 93 - 3 of the Audiovisual Communication Act (Law no. 82-652 of 29 July 1982 – “the 1982 Act” ). They relied on Article 7 § 1 of the Convention, which provides:", "“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”", "18. The Government submitted that in the field of audiovisual communication the presumption of the publishing director's responsibility established by section 93 - 3 of the 1982 Act applied only to cases in which the content of a defamatory statement had been fixed prior to its communication to the public, where “prior fixing” of the statement enabled the publishing director to check its content before it was broadcast. In the case of a live broadcast that presumption did not in principle apply. In accordance with the rules of ordinary law, the prosecution had to prove that the publishing director had personally participated in broadcasting the statement.", "By ruling that there was “prior fixing” where a statement was broadcast repeatedly, the courts had merely interpreted that concept. They had by no means adopted reasoning to the accused's detriment by analogy. In the Government's submission, the applicants'argument amounted to equating the concept of “prior fixing” with that of “recording”, only a prior “recording” being capable of enabling the publishing director to exercise his power of supervision. Yet in the present case the criminal courts had exonerated the second applicant, the publishing director of Radio France, of all responsibility for the first bulletin, broadcast live on France Info; the applicants'convictions had been based on the later bulletins only. In doing so the courts had made a reasonable interpretation of the concept of “prior fixing”, adapting the case-law to the changing situation, through reasoning which was purely teleological and devoid of any analogy. The Government further submitted that the text of section 93 - 3 of the 1982 Act made no distinction between live broadcasts and pre - recorded programmes. It followed that the domestic courts had not extended the normal scope of that provision to cover a situation not provided for in the legislation. Parliament had deliberately used the concept of “prior fixing” rather than that of “prior recording”, the former being broader than the latter. The word “ fixation ” in the French language referred to “what is determined in advance”, which could therefore be checked. In short, the courts had not created a new charge or autonomous offence by analogy.", "In addition, the Government submitted that the interpretation of the term “prior fixing” in the present case had been “consistent with the essence of the offence”. Firstly, the intention had been to adapt the text to “new circumstances”, as France Info, the first European radio station to broadcast news programmes round-the-clock, had not been set up until 1987, quite some time after the enactment of the 1982 Act. Secondly, it was a reasonable reflection of the way the offence had originally been framed, since it was based on the possibility of supervision by the publishing director whenever a statement was repeated, whether live-to-air or not.", "Lastly, the Government said that the interpretation complained of had been foreseeable. They pointed out in that connection that, as a lawyer and media professional, the second applicant could not have been unaware of the provisions of section 93 - 3 of the 1982 Act; by taking appropriate advice if necessary, he could reasonably have been expected to foresee how they would be interpreted.", "19. The applicants replied that legal theorists writing in that specialist field had all equated the concept of a statement's “prior fixing”, within the meaning of section 93 - 3 of the 1982 Act, with its “prior recording”, and excluded live broadcasts from the scope of that provision. They referred in that connection to the following two publications: Communication audiovisuelle, J. Francillon and B. Delcros, Juris -Classeur pénal, Annexe Vo communication audiovisuelle, vol. 2, 1990, §§ 47 - 48, and Droit des médias, C. Debbasch (ed.), 1999, no. 2509. By applying section 93 - 3 of the 1982 Act in the context of the repetition of a statement in a live broadcast, even though in such circumstances the presenter remained the sole judge of its content and the advisability of repeating or adapting it, the domestic courts had departed from the legislature's intentions, as confirmed by the prevailing legal theory, and created “by analogy” a new category of offence.", "20. The Court reiterates that Article 7 § 1 of the Convention requires offences to be “clearly defined in law”. That condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts'interpretation of it, what acts and omissions will make him liable (see, for example, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260 - A, p. 22, § 52).", "It is true that, in the context of audiovisual communication, the words “fixed prior to being communicated to the public” may seem to indicate that a publishing director cannot be convicted of an offence under section 93 - 3 of the 1982 Act unless the offending statement has been recorded before being broadcast. Thus construed, section 93 - 3 cannot form the basis for the successful prosecution of a publishing director where the “statement” has been broadcast live. The Court notes moreover that the Government have not supplied any evidence that before the applicants'trial the domestic courts had applied section 93 - 3 in circumstances similar to those of the present case.", "Nevertheless, Article 7 of the Convention does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II).", "The Court notes that the presumption of the publishing director's responsibility established by section 93 - 3 of the 1982 Act is the corollary of the latter's duty to check the content of the “statements” put out through the medium for which he works. The reason, therefore, why the publishing director's responsibility is engaged only where the content of the offending “statement” has been “fixed” prior to being broadcast is that he is deemed on account of that “prior fixing” to have been placed in a position to apprise himself of its content and check it before it is broadcast.", "Moreover, it is clear – and the parties did not disagree on this point – that there has been “prior fixing” where the offending “statement” has been recorded with a view to its being broadcast, and that, conversely, there has been no prior fixing where such a statement has been broadcast live. In the Court's opinion, the facts of the present case fall halfway between recording and live broadcasting. On the one hand, the offending statement was not recorded; on the other, in view of the way France Info operated, it was intended to be repeated live-to-air at regular intervals. As there had been no “prior fixing”, the criminal courts absolved the publishing director of all responsibility in respect of the first of the bulletins broadcast on France Info; on the other hand, they held that that first broadcast had constituted a “prior fixing” of the statement's content as regards subsequent broadcasts. They therefore ruled that from the second broadcast onwards the publishing director could be considered to have been placed in a position to check its content beforehand. The Court considers that, in the particular context of the way France Info operated, that interpretation of the concept “prior fixing” was consistent with the essence of the offence concerned and “reasonably foreseeable”.", "There has accordingly been no violation of Article 7 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION", "21. The applicants asserted that section 93 - 3 of the 1982 Act established an irrebuttable presumption of the publishing director's responsibility, which was automatically and necessarily inferred from his function, notwithstanding any evidence to the contrary he might seek to adduce, relating to his conduct or the conditions in which information was published or broadcast. The domestic courts had thus inferred the second applicant's criminal responsibility from the existence of a repeated statement and his status as publishing director. In the applicants'submission, that had infringed the right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention in the following terms:", "“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”", "The applicants further complained that, as interpreted by the domestic courts, section 93 - 3 of the 1982 Act entailed a breach of equality of arms in that the publishing director's guilt was automatically inferred from the mere objective fact that a statement had been broadcast repeatedly, the prosecution not being required to prove that he intended to commit the offence, whereas the defendant was deprived of the possibility of establishing facts “capable of exonerating him”. They relied on Article 6 § 1 of the Convention, which provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”", "22. The Government submitted that section 93 - 3 of the 1982 Act did not establish an irrebuttable presumption of the publishing director's responsibility. Firstly, the prosecution was still obliged to prove the objective element of the offence, namely the broadcasting of a defamatory statement; it was merely absolved from the obligation to prove the mental element. Secondly, defendants could still deny the facts or challenge their classification. Thirdly, once the facts had been established, the presumption did not prevent defendants, whether principals or accessories, from presenting a defence. On this last point, the Government admitted that by section 35 of the 1881 Act defendants could not seek to establish proof of the truth of the defamatory statement where, as in the present case, the events concerned had taken place more than ten years before. However, they could plead good faith, which was a valid defence. The second and third applicants had indeed put forward that defence in the criminal courts, and the fact that their arguments were not accepted did not mean that proof of good faith was impossible. It was also open to defendants to plead compliance with a statutory requirement ( l'ordre de la loi ) or necessity ( force majeure ), both defences under ordinary law. The Government argued on that basis that the second applicant could have put forward legal arguments other than a claim not to be the publishing director as an effective defence.", "The Government further submitted that the Convention did not prohibit presumptions of fact or of law provided that they were kept within reasonable limits which took into account the gravity of what was at stake and maintained the rights of the defence. The presumption in section 93 - 3 of the 1982 Act respected such limits. Firstly, it came into play only with regard to the offences defined in Chapter IV of the 1881 Act, concerning the offences of defamation and insult. Secondly, the legal responsibility of each defendant was determined in strict proportion to the part he or she had actually played, with a legal distinction being drawn according to whether or not the content of the information had been fixed prior to its communication to the public. Where that was not the case, the publishing director, not having been in a position to intervene to prevent the broadcast, could not be prosecuted as a principal. Lastly, the Government submitted that the way in which section 93 - 3 of the 1982 Act had been applied in the present case had been compatible with the presumption of innocence. Firstly, the domestic courts had fully established the defamatory nature of the statements broadcast. Secondly, they had clearly proved the existence of intent on the part of the third applicant, after meticulously examining the documents and witness evidence he had adduced to prove his good faith. Thirdly, the second applicant's conviction as principal did not infringe the “principle of individual responsibility”, since the criminal responsibility contemplated in section 93 - 3 arose not from producing the statement but from publishing or broadcasting it, which formed part of the responsibilities of the publishing director; above all, in the present case, by emphasising that “a rolling news bulletin may be monitored and controlled ... by making the necessary arrangements to that effect ”, the Paris Court of Appeal had in a sense established intent on the part of the second applicant even though in law it did not actually need to do so in order to find him guilty.", "23. The applicants contested the Government's argument that a publishing director could escape liability by proving his good faith; the established case-law – which moreover drew the consequences of the strict liability provided for in section 93 - 3 of the 1982 Act – proved the opposite (they referred in that connection to the following judgments of the Court of Cassation, Criminal Division : Cass. crim., 22 December 1976, Bulletin no. 379, p. 961, and Cass. crim., 8 July 1986, Bulletin no. 233, p. 596). The presumption of responsibility established by that section was indeed therefore irrebuttable. According to the Court's case-law, Article 6 § 2 of the Convention required States to keep presumptions of fact and of law within reasonable limits which took into account the gravity of what was at stake and maintained the rights of the defence; but there was no criminal policy consideration of any particular gravity which militated in favour of the presumption in issue in the present case. Moreover, although the applicants did not deny that necessity was a defence under ordinary law capable of qualifying the irrebuttable character of a presumption of responsibility, they could not see what might constitute a case of force majeure excluding the publishing director's responsibility under section 93 - 3 of the 1982 Act.", "24. The Court points out at the outset that the complaint under Article 6 § 1 overlaps with the complaint under Article 6 § 2, so that it is not necessary to examine the facts complained of from the standpoint of the first paragraph of Article 6 taken alone (see Salabiaku v. France, judgment of 7 October 1988, Series A no. 141 ‑ A, p. 18, § 31).", "The Court next observes that the Convention does not prohibit presumptions of fact or of law in criminal cases. Nevertheless, it requires States “to remain within certain limits in this respect”: they must “confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence” (see Salabiaku, cited above, pp. 15-16, § 28).", "The result of section 93 - 3 of the 1982 Act and section 29 of the 1881 Act is that in the field of audiovisual communication a publishing director is criminally responsible – as principal – for any defamatory statement made on air, where the content of that statement has been “fixed prior to being communicated to the public”. In such a case, as soon as the statement's defamatory character has been established, the offence is made out as regards the publishing director – the maker of the statement being prosecuted as an accessory – without it being necessary to prove mens rea on his part. As pointed out above, section 93 - 3 is intended to punish a publishing director who has failed to perform his duty of overseeing the content of remarks made on air in those cases where he would have been able to exercise such oversight before they were broadcast.", "A number of elements have to be proved before the publishing director can be convicted: he must have the status of publishing director; the offending statement must have been broadcast and must be defamatory; and the content of the statement must have been fixed before it was broadcast. The Government have stated that where there has been no “prior fixing” responsibility is no longer presumed and the rules of ordinary law apply instead, so that the prosecution has to prove that the publishing director had a personal hand in the broadcasting of the offending statement.", "The Court takes the view that the difficulty in the present case stems from the fact that this presumption is combined with another, namely that defamatory remarks are presumed to have been made in bad faith. However, this second presumption is not irrebuttable; although defendants cannot seek to establish the truth of defamatory statements where, as in the present case, the events concerned have taken place more than ten years before (section 35 of the 1881 Act), they may overturn that presumption by establishing their good faith. Thus, as the Paris Court of Appeal observed in its judgment of 17 June 1998, the applicants could have established the third applicant's good faith by proving that the allegations complained of had been made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language.", "Therefore, as the Government submitted, a publishing director has a valid defence if he can establish the good faith of the person who made the offending remarks or prove that their content was not fixed before being broadcast; moreover, the applicants raised such arguments in the domestic courts.", "That being the case, and having regard to the importance of what was at stake – effectively preventing defamatory or insulting allegations and imputations being disseminated through the media by requiring publishing directors to exercise prior supervision – the Court considers that the presumption of responsibility established by section 93 - 3 of the 1982 Act remains within the requisite “reasonable limits”. Noting in addition that the domestic courts examined with the greatest attention the applicants'arguments relating to the third applicant's good faith and their defence that the content of the offending statement had not been fixed in advance, the Court concludes that in the present case they did not apply section 93 - 3 of the 1982 Act in a way which infringed the presumption of innocence.", "There has accordingly been no violation of Article 6 § 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "A. The parties'submissions", "25. The applicants complained of an infringement of their right to the freedom to “impart information” as a result of the penalties and measures imposed on them by the domestic courts. They relied on Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "26. The Government accepted that there had been “interference by public authority” with the applicants'exercise of their freedom of expression. They contended, however, that that interference satisfied the requirements of the second paragraph of Article 10.", "In the first place, they submitted that it was “prescribed by law”. The criminal convictions of the second and third applicants had been founded on sections 29 and 31 of the 1881 Act and section 93 - 3 of the 1982 Act. The order requiring the applicant company to broadcast an announcement by way of reparation for the damage caused to the civil party had been founded on Article 1382 of the Civil Code, relating to criminal liability, and on established case-law to the effect that the trial courts alone are empowered to decide what form reparation should take, being free to choose reparation in kind or pecuniary reparation (the Government referred to the following judgments: Cass., First Civil Division, 14 May 1962, Bulletin no. 241; Cass., Second Civil Division, 17 February 1972, Bulletin civ. II no. 50; Cass. crim., 9 April 1976, Bulletin no. 108; Cass., Third Civil Division, 9 December 1981, Bulletin civ. II no. 209; Cass., Second Civil Division, 11 October 1989, Bulletin no. 177; Cass. soc., 25 January 1989, Bulletin civ. no. 64; Cass. com., 5 December 1989). The Government submitted that this type of measure had already been used by the courts as a means of reparation in the context of audiovisual communication, citing – though without providing either a copy or a reference – a judgment given by the Paris tribunal de grande instance on 10 June 1983 requiring a television channel to broadcast an announcement.", "The Government went on to say that the interference complained of had been intended to punish and provide a remedy for conduct which had damaged the reputation and honour of a person vested with public authority. They argued on that basis that it pursued two of the legitimate aims listed in the second paragraph of Article 10, namely protection of the reputation or rights of others and prevention of disorder.", "Lastly, the Government submitted that, in respect of the three applicants, the interference in issue had been “necessary in a democratic society”, being based on grounds which were “sufficient and relevant ” as regards the aims pursued and proportionate to those aims. On the first point, the Government said that the domestic courts had conducted a detailed examination of the case and the parties'arguments before finding that the information broadcast on France Info had damaged Mr Junot's honour and good name. In particular, the order requiring Radio France to broadcast an announcement by way of civil reparation had appropriately reflected the circumstances of the case. On the second point, the Government argued that the conviction of the second and third applicants had been proportionate on account of the particular gravity of the damage to Mr Junot's honour and good name – the bulletin complained of had been broadcast a large number of times on a station with a very large audience, it had incautiously referred without comment to unverified facts and it had suggested a parallel with the Papon case (which betrayed a lack of impartiality) – and of the moderate nature of the fines and the awards of damages. Nor was the order against Radio France disproportionate: the domestic courts had limited its obligation to the requirement that it broadcast the announcement every two hours for twenty-four hours (a total of twelve times, as compared with around sixty repetitions of the offending statement), and the content of the announcement had responded point by point to the defamatory imputations broadcast on France Info. The applicants'argument that this measure had unduly reduced the editorial space of France Info was invalid, since news was broadcast round the clock on that channel. Moreover, since the operation of France Info depended on public funds, it could not be affected by the broadcasting of a dozen announcements over a period of twenty-four hours.", "27. The applicants did not accept that the order requiring Radio France to broadcast announcements about the conviction of the second and third applicants had been “prescribed by law”. They pointed out that it followed from the fact that the trial courts alone had power to decide what form reparation should take that the Court of Cassation did not have jurisdiction to review such decisions, so that the terms of an order like the one in issue were completely unforeseeable. They further submitted that the effect of this had been to allocate air-time which should have been used to inform the public for the sole benefit of Mr Junot.", "They observed in particular that in Thoma v. Luxembourg ( no. 38432/97, § 64, ECHR 2001 - III; also cited by the Government) the Court had held that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation was not reconcilable with the press's role of providing information on current events, opinions and ideas.", "They submitted that the bulletins broadcast on France Info pointed out that the information they contained came from the weekly magazine Le Point, and that from 11.04 a.m. on 1 February 1997 onwards they mentioned the fact that Mr Junot denied the accusations against him. The question of the role of the French State in the deportation operations during the Occupation was a question of general interest to society which lay “at the heart of contemporary debate”. The bulletins complained of had not been intended to damage Mr Junot's reputation but to shed further light on a period of history of interest to the public. The applicants also emphasised the fact that the article published in Le Point to which the bulletins referred had been based on serious documentary material made up of official correspondence written by Mr Junot “which revealed his participation in operations to maintain order around the camps at the time when the deportation transports were being put together”. In those circumstances, they submitted, “the channel had no obligation to'distance itself'from the article in Le Point ”.", "B. The Court's assessment", "28. The Court notes that the French courts convicted the second applicant (the applicant company's publishing director) and the third applicant (a journalist working for France Info), as principal and accessory respectively, of defaming a civil servant in news bulletins broadcast on France Info, fined them FRF 20,000 each and ordered them to pay FRF 50,000, jointly, in damages. The applicant company was ordered, by way of civil reparation, to broadcast a number of times on France Info an announcement about the judgment. It is therefore quite obvious that the applicants suffered “interference by public authority” with the exercise of the right guaranteed by Article 10; that point, moreover, is not in dispute between the parties.", "Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims listed in that paragraph and whether it was “necessary in a democratic society” in order to achieve that aim or aims.", "1. “Prescribed by law”", "29. The parties agreed that the interference was “prescribed by law” as regards the criminal penalties imposed on the second and third applicants and the order that they pay damages.", "30. On the other hand, the applicants submitted that the opposite was true of the order requiring the applicant company, by way of civil reparation, to broadcast on France Info an announcement about the conviction of the second and third applicants. As stated above, they argued that it followed from the fact that the trial courts alone had power to decide what form reparation should take that the Court of Cassation did not have jurisdiction to review such decisions, so that the terms of an order like the one in issue were completely unforeseeable.", "The Court does not agree. It considers that, as its case-law requires (see, for example, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316 - B, pp. 71 et seq., § § 37 et seq.), that measure had a basis in domestic law and was foreseeable. Firstly, the applicant company's civil liability for defamatory remarks broadcast on the radio channels it runs is founded on Article 1382 of the Civil Code, which provides: “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it”. Secondly, it is established French case-law that the trial courts alone have power to determine the manner in which damage is to be made good and that they may order reparation in kind. On this last point, although the Government have not established that the courts regularly order measures of this type in cases involving audiovisual communication – they merely mentioned a first-instance judgment but did not provide a copy or a reference – the publication of announcements about judicial decisions is nevertheless, in France, one of the usual forms of reparation for damage caused through the medium of the press ( see, mutatis mutandis, Prisma Presse v. France (dec.), no. 71612/01, 1 July 2003).", "In addition, the Court has previously held that “national laws concerning the calculation of damages for injury to reputation must make allowance for an open-ended variety of factual situations” and that accordingly the words “prescribed by law” do not require that a party to judicial proceedings should be able to “anticipate with any degree of certainty the quantum of damages that could be awarded in his particular case” (see Tolstoy Miloslavsky, cited above, p. 73, § 41). It considers that a similar approach may be followed, mutatis mutandis, where reparation in kind is concerned.", "In short, the order requiring the applicant company, by way of civil reparation, to broadcast on France Info an announcement about the conviction of the second and third applicants was “prescribed by law”.", "2. Legitimate aim", "31. The Court considers that the interference undoubtedly pursued one of the aims listed in Article 10 § 2, namely “protection of the reputation or rights of others” (see, among other authorities, Tolstoy Miloslavsky, cited above, p. 74, § 45); in any event, the parties did not disagree on that point.", "The Court would observe that the right to protection of one's reputation is of course one of the rights guaranteed by Article 8 of the Convention, as one element of the right to respect for private life.", "3. “Necessary in a democratic society”", "32. The Court wishes to reiterate in the first place the fundamental principles established by its case-law (see, among many other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports of Judgments and Decisions 199 8-VI, pp. 2329-30, § 46).", "Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.", "33. The Court has also emphasised on numerous occasions the essential role played by the press in a democratic society. It has pointed out that, although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, and that not only does the press have the task of imparting such information and ideas, the public also has a right to receive them (see among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 - III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002 - V ).", "The national authorities'margin of appreciation is thus circumscribed by the interest of democratic society in enabling the press to play its vital role of “public watchdog” (see, for example, Bladet Tromsø and Stensaas, cited above, § 59).", "Although formulated in the first instance for the written press, these principles are applicable to the audiovisual media (see in particular Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31).", "34. In the present case, the applicants were convicted by the French courts on account of the broadcasting on France Info on 31 January and 1 February 1997 of a number of news bulletins reporting information published in the weekly magazine Le Point to the effect that Mr Junot, when Deputy Prefect at Pithiviers from September 1942 to August 1943, had supervised the deportation of a thousand French and foreign Jews.", "There is no doubt that the attitude of senior French administrative officers during the Occupation is a question commanding the highest public interest and that the broadcasting of information about it forms an integral part of the task allotted to the media in a democratic society. Moreover, the information published in Le Point and the news bulletins complained of was a contribution to a public debate which was already going on at the material time and was focused on the trial of Maurice Papon, the chief executive officer at the prefecture of Gironde from May 1942 to August 1944, for aiding and abetting arbitrary arrests, false imprisonment, murders and attempted murders all constituting crimes against humanity.", "Since the freedom of the press was thus in issue, the French authorities had only a limited margin of appreciation in determining whether there was a “pressing social need” to take the measures in question against the applicants. Consequently, the Court will examine in scrupulous detail the proportionality of these measures in relation to the legitimate aim pursued.", "35. The Court observes that the original version of the offending statement was worded as follows:", "“ According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.”", "This item was broadcast for the first time at 5 p.m. on 31 January 1997 and repeated by the third applicant and other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, either in the same form or with slightly different wording, but in each case it was pointed out that the information concerned had been published in Le Point. From 11 p.m. onwards a number of bulletins and newsflashes included the information that, “unlike Maurice Papon”, Mr Junot had not ordered anyone to be arrested, interned or transferred to Drancy, sometimes adding that he had only been responsible for “maintaining order”. Beginning at 5.45 a.m. on 1 February, a number of newsflashes and bulletins (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the accusations in Le Point. According to the applicants, that detail was systematically included after 11.04 a.m.", "36. In its judgment of 17 June 1998, the Paris Court of Appeal held that in imputing to Mr Junot supervision of the deportation of a thousand Jews and the organisation of their dispatching to Drancy, in comparing his situation to that of Maurice Papon – who had just been committed for trial in the Assize Court – and in insinuating that he had not been a member of the Resistance, the above bulletin had damaged his honour and dignity and was consequently defamatory. The Court of Appeal went on to say: “Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language ”, and found that, although the first two of those conditions had been satisfied, the same was not true of the other two. As regards the third condition, the Court of Appeal found that the third applicant had broadcast the bulletin complained of when Le Point had only just come out, had used as his only sources three press agency dispatches reporting the article in that publication – a fact which did not show that he had checked the information – and a television programme in which Mr Junot had taken part, and had gratuitously asserted that Mr Junot admitted that his conduct had been blameworthy. As regards the fourth condition, the Court of Appeal held that the imputations contained in the information broadcast had been disproportionate in relation to the objective material which the applicants claimed to have had at their disposal. It considered that the use of the conditional tense and “the mention – very late in the day – of Mr Junot's denials ” did not attenuate “ the gravity of the allegations made in dispatches broadcast several dozen times ”, and that the content of the documents quoted in Le Point did not justify the construction that had been placed upon them in the news bulletins. On that point, it said: “All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews. ”", "37. The Court reiterates that by reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, for example, Bladet Tromsø and Stensaas, cited above, § 65, and Colombani and Others, cited above, § 65). Nevertheless, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, in particular, Bladet Tromsø and Stensaas, cited above, § 59). Moreover, a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma, cited above, § 64).", "The bulletins complained of reported on a detailed article, backed up by documentary research, and an interview, to be published in a weekly magazine whose standing as a serious publication is not open to doubt, and they systematically included an acknowledgment of that source. It cannot therefore be validly maintained that merely by broadcasting those bulletins the third applicant failed to discharge his obligation to act in good faith. In that respect the Court finds the Paris Court of Appeal's reasoning unpersuasive.", "38. It notes, however, that the France Info bulletins contained an assertion that had not appeared in Le Point, namely that Mr Junot “ admits that he organised the departure of a transport of deportees to Drancy ”. While it is true that the article stated that a transport of a thousand interned Jews had left Pithiviers on 20 September 1942 “under Junot's responsibility”, there was nothing in it – any more than there was in the interview with Mr Junot – to indicate that he had admitted organising the departure of that transport.", "The Court does not believe that this can be taken as an example of the “degree of exaggeration” or “provocation” which is permissible in the exercise of journalistic freedom. It considers that it amounted to the dissemination of incorrect information about the content of the article and the interview published in Le Point.", "Although in other respects the bulletins, as was right and proper, went no further than repeating the information published by Le Point and systematically attributed it to that source, they summarised in that way in a few sentences a six-page feature article, highlighting its most striking parts. That gave the account of the conduct imputed to Mr Junot a categorical tone not present to the same extent in the original publication.", "Admittedly, more nuanced wording, and eventually the information that Mr Junot denied the allegations, were gradually introduced into the text of the bulletins. However, by that time, in any event, the previous version had already been broadcast repeatedly.", "39. It is not for the Court to substitute its views for those of the press as to what technique of reporting should be adopted by journalists; Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Jersild, cited above, pp. 23-24, § 31).", "It considers, however, that in the present case the extreme gravity of the conduct imputed to Mr Junot and the fact that the France Info bulletin was intended to be broadcast repeatedly – as indeed it was – required the third applicant to exercise the utmost care and particular moderation.", "That was all the more relevant in the Court's opinion because the bulletin was put out over the radio on a channel which could be received throughout French territory. In that connection, it reiterates that in considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor, and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (ibid.).", "Within those limits, the Court considers that the reasons given by the Court of Appeal for its ruling that Mr Junot's honour and dignity had been damaged and its judgment against the applicants were “relevant and sufficient”.", "40. As regards the “proportionality” of the interference complained of, the Court notes that the second and third applicants were found guilty of an offence and ordered to pay a fine, so in that respect alone the measures imposed on them were already relatively serious ( see, mutatis mutandis, Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998 - VII, p. 2887, § 57). However, in view of the margin of appreciation left to Contracting States by Article 10 of the Convention, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued.", "That being so, the Court notes that the amount of the fine imposed on the second and third applicants was moderate: FRF 20,000 each, equivalent to 3,048.98 euros (EUR). The same is true of the damages they were jointly ordered to pay Mr Junot: FRF 50,000, or EUR 7,622.45.", "The applicant company was ordered, by way of civil reparation, to broadcast on France Info every two hours for twenty-four hours an announcement about the conviction of the second and third applicants. The Court considers that in so doing the domestic courts quite clearly intended to find the appropriate level of reparation for the damage caused to Mr Junot by the defamation that they had found him to have suffered. Be that as it may, the Court considers that the obligation to broadcast a 118-word announcement twelve times formed only a moderate restriction on France Info's editorial freedom.", "Having regard to the extreme gravity of the conduct imputed to Mr Junot and the fact that the bulletin in question was, in its successive versions, broadcast sixty-two times by a radio station which could be received throughout French territory, the Court considers that the measures taken against the applicants were not disproportionate to the legitimate aim pursued.", "41. In the light of the preceding considerations, the interference complained of may be regarded as “necessary in a democratic society”. There has accordingly been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The first applicant, Gérard Chauvy, was born in 1952 and lives in Villeurbanne. The second applicant, Francis Esmenard, was born in 1936 and lives in Paris. Both are French nationals. The third applicant, Editions Albin Michel, is a limited company formed under French law that has its registered office in Paris.", "9. The first applicant, who is a journalist and writer, is the author of a book entitled Aubrac, Lyon 1943 which was published in 1997 by Editions Albin Michel ( the third applicant ), a company chaired by the second applicant.", "10. In his book, the first applicant reconstructed the chronology of events involving the Resistance movements in Lyons in 1943 and took stock of the various archive materials that were available on that period. One of the principal mysteries surrounding this period is the Caluire meeting, an event of particular significance to the history of the French Resistance and a major episode of the Second World War. On 21 June 1943 Klaus Barbie, the regional head of the Gestapo, arrested the main Resistance leaders at a meeting in Caluire in the Lyons suburbs. Among those arrested were Jean Moulin, General de Gaulle ’ s representative in France and the leader of the internal Resistance, and Raymond Aubrac, a member of the Resistance movement who managed to escape in the autumn of 1943. The truth about how the Resistance leaders came to be arrested in Caluire has still not been established. A member of the Resistance, René Hardy, who is now dead, was accused of being the “traitor” and put on trial. However, he was not convicted after two separate trials. A majority of the court voted in favour of a conviction in one of the trials, but the rules of criminal procedure in force at the time required a majority of at least two votes for a guilty verdict to be returned.", "11. The first applicant recounted this major event “using the Aubracs as a prism ”. He claimed that his book put to the test “the official truth as related at length in the media, notably by the Aubracs, and in a film that sings their praises ”.", "12. The book sparked off a fierce public debate in France and the newspaper Libération organised a round - table conference at which historians were invited to discuss the issue in the presence of Mr and Mrs Aubrac.", "13. An unabridged version of the written submissions – known as the “Barbie testament” – which were signed by Klaus Barbie and lodged by Mr Vergès, his lawyer, on 4 July 1990 with the judge investigating Barbie ’ s treatment of members of the Lyons Resistance was appended to the book. Many of the questions raised by the first applicant were based on a comparison of that document with the “official” version of history. In the conclusion to his book, he said that there was no evidence in the archives to substantiate the accusation of treachery made by Klaus Barbie against Raymond Aubrac, but that their examination had shown that “unreliable accounts [had] been given at times ”. He followed this up with two pages of questions that cast doubt on Raymond Aubrac ’ s innocence.", "14. On 14 May 1997 Mr and Mrs Aubrac brought a private prosecution by direct summons in the Seventeenth Division of the Paris tribunal de grande instance. The summons contained fifty extracts from the book ( eighteen from Barbie ’ s written submissions and thirty-two from the first applicant ’ s own text ). The three applicants were summoned in their capacities as author, accomplice and a party liable for defamation under the civil law. Mr and Mrs Aubrac relied on section 31 of the Freedom of Press Act of 29 July 1881 and the Court of Cassation ’ s judgment of 4 October 1989 in Pierre de Bénouville. The relevant parts of the summons read as follows:", "“When ... Klaus Barbie was brought to France in 1983 he chose to defend himself by seeking to discredit those of his victims who had survived and were still able to make accusations against him by accusing them of treachery. He suggested that Raymond and Lucie Aubrac might be among their number. However, when Raymond Aubrac attended Barbie ’ s trial after being called as a witness by him, neither Barbie, nor his counsel Mr Vergès, asked him the slightest question, made the least remark or produced any document capable of supporting this vile accusation which remained extremely vague.", "At the same time, by a judgment of 30 April 1987 followed by a judgment of 10 February 1988 which has become final, Raymond Aubrac secured Mr Vergès ’ s conviction for defamation after Mr Vergès had chosen to relay and even to back up his client ’ s insinuations in a film by Mr Claude Bal. ...", "The [first applicant ’ s] book was published in March 1997 with the title ‘ Aubrac, Lyon 1943 ’. A banner wrapped around the cover proclaimed: ‘ A legend put to the test of history. ’", "There cannot, therefore, be any doubt that this book is aimed almost exclusively at the Aubracs and purports to use rigorous historical method to destroy their so-called ‘ legend ’ as members of the Resistance .”", "15. Mr and Mrs Aubrac then set out those of the applicants ’ allegations which they considered defamatory and their reasons for so considering them :", "“ A. The circumstances of Raymond Aubrac ’ s arrest in March 1943", "The first falsehood of which the Aubracs are accused is that Raymond Aubrac was arrested on 13 March 1943 and not on 15 March; this enables Barbie to assert on the basis of this ‘ established fact ’ that the only way Raymond Aubrac, who had been arrested on 13 March, was able to attend the meeting on 15 March in the rue de l ’ hôtel de ville in Lyons was under the control of the French police. ...", "B. The allegations relating to Raymond Aubrac ’ s release in May 1943", "An order for Raymond Aubrac ’ s release was made on 10 May 1943. However, in an autobiographical account published in 1984, his wife puts the date of his release at 14 May while Raymond Aubrac himself hesitates between 14 and 15 May in a deposition made on 21 August 1948 in connection with the second Hardy trial.", "... For [ the first applicant ], there can be but one explanation for this discrepancy between the dates : Raymond Aubrac spent four days collaborating with the divine Barbie who compelled the French judicial authorities to release him. This was confirmed by Lucie Aubrac ’ s assertion that she had warned the public prosecutor not to oppose release, while [ the first applicant ] feigns surprise at the lack of concrete evidence of the application. ...", "C. Escape from L ’ Antiquaille Hospital", "... this entire chapter returns to the alleged statement by Lucie Aubrac that she secured her husband Raymond ’ s inclusion not only among the four members of the Resistance who were arrested on 15 March 1943, but also among those who were freed on 24 May, with the sole aim of challenging the account of those who took part in that escape and branding them liars. ...", "... [ The first applicant ’ s ] inability to rank the documents he cites in order of importance is a cause for consternation here. He considers it a near certainty that Aubrac ’ s wife ‘ hid ’ her husband following his release by Barbie, but chooses to ignore the fact that [the circumstances of] his release [were] immediately examined by Frenay, head of the ‘ Combat ’ movement and subsequently, as was to be expected, subjected to close scrutiny at General de Gaulle ’ s headquarters in London, and, in particular, the remark made by Frenay – despite its inclusion in the record of his interview in London on 30 June 1943 – that ‘ there is no doubt that Aubrac is a fellow who is beyond all suspicion ’. ...", "D. The defamatory allegations about Caluire", "...", "Although the debate still rages over the extent to which René Hardy was a willing collaborator and the unnecessary risks taken by the leaders of the ‘ Combat ’ movement in sending Hardy to Caluire to defend the prerogatives of their leader, prior to Barbie in 1989 no one had ever suggested that Raymond and Lucie Aubrac had played the slightest role in Jean Moulin ’ s arrest on 21 June, or his identification by René Aubry on 25 June after four days of torture, it again being stressed that Hardy did not know Jean Moulin.", "... [ The first applicant ] had no hesitation in asserting (page 130) :", "‘ It is certain that Raymond Aubrac appears no longer to recollect the meeting with Lassagne and Aubry at Lonjaret ’ s home on 19 June 1943, although in 1948 he fully admitted that such a meeting had taken place. ’", "In so doing, [ the first applicant ] lends credence to the notion that on 19 June 1943 Raymond Aubrac knew all about the proposed meeting in Caluire ...", "E. The deliberate confusion between Hardy and Aubrac", "In two transitional chapters (Chapters XI and XII), [ the first applicant ], without citing a single piece of documentary evidence, seeks to cause deliberate confusion by recounting the misfortunes of René Hardy (who, once again, no one doubts helped the Germans although it is not known to what extent he did so voluntarily) and Raymond and Lucie Aubrac, whom no one has ever accused of such collaboration, for good reason. ...", "... [ The first applicant ’ s ] aim is still the same : to lead people to believe that Aubrac is lying and that what he clearly stated at the material time no longer matters, as he does not repeat it in identical terms fifty years on. ...", "F. The offences of defamation are made out", "Both the publication of the ‘ Barbie testament ’ and the comments of [ the first applicant ] in support of that document render [the applicants] liable for defamatory statements in the form of precise allegations, although sometimes in the form of innuendo, against two specific persons, Raymond and Lucie Aubrac, whose honour and reputation have been considerably tarnished by the said allegations.", "The most harmful allegations in a book whose entire content is defamatory are as follows:", "A. Allegations against Raymond Aubrac", "1. Raymond Aubrac was the French officer whom the Germans used to infiltrate the leaders of the Secret Army upon its formation.", "2. Raymond Aubrac was a member of the Resistance whom Barbie turned into one of his department ’ s agents on his arrest in March 1943.", "3. Raymond Aubrac lied about the date of his first arrest : it took place on 13, not 15, March 1943.", "4. Raymond Aubrac, who was controlled by the French police, was not in fact arrested on 15 March 1943, when the French police went to one of his homes.", "5. Raymond Aubrac was responsible for the ‘ mousetraps ’ that were set for members of the Resistance movement in Lyons between 13 and 15 March 1943.", "6. Raymond Aubrac was not released on 10 May 1943 pursuant to a freely made decision of the investigating judge ..., but because the German authorities had compelled the French judicial authorities to release him.", "7. Raymond Aubrac lied about the date of his release following his first arrest in order to hide the fact that for four days, between 10 and 14 May 1943, he had remained at the disposal of Barbie, the head of the Gestapo.", "8. After being informed on Saturday 19 June 1943 of the time and venue of the meeting due to take place in Caluire of various Resistance leaders including Jean Moulin, Raymond Aubrac had informed his wife, who was thus able to inform the head of the Gestapo.", "9. Raymond Aubrac was released voluntarily by the Germans on 21 October 1943, when English agents took part in an operation to free one of their agents, Jean Biche, and Barbie, who had been informed of the operation, seized the opportunity to allow his agent Raymond Aubrac to escape.", "10. In general, Raymond Aubrac ’ s conduct with regard to the German authorities in Lyons in 1943 was similar to that of René Hardy, whom the Germans were using at that time.", "B. Allegations against Lucie Aubrac", "1. Lucie Aubrac had concealed the fact that her husband was released on 10 May 1943, not as a result of action she had taken, but by virtue of an order of the investigating judge ... acting on the instructions of Barbie, the head of the Gestapo.", "2. It was not Lucie Aubrac who had arranged the operation that had enabled three members of the Resistance, who had been arrested at the same time as Raymond Aubrac, to escape from L ’ Antiquaille Hospital on 24 May 1943.", "3. After being informed by her husband of the time and place of the meeting at Dr Dugoujon ’ s home in Caluire on 21 June 1943, Lucie Aubrac had communicated the information to Barbie, the regional head of the Gestapo, on Sunday, 20 June.", "4. Lucie Aubrac, whose controlling officer was Floreck, Barbie ’ s deputy, had agreed to act as liaison officer between her husband and ... Barbie to avoid ‘ giving her husband away ’.", "5. Lucie Aubrac could only have gained access to the premises used by the Gestapo if she was a Gestapo agent.", "6. It was with the full agreement of the Gestapo, and more specifically Barbie, that Lucie Aubrac was able to arrange her husband ’ s ‘ escape ’ in an operation that was organised not by her, but by the Intelligence Service, on 21 October 1943.", "Each of these defamatory statements ... must give rise to liability under section 31 of the Act of 29 July 1881.", "These defamatory statements, which accuse [ the Aubracs] of treachery and of concealing treachery, constitute a direct attack on their status as founding members and organisers of the Freedom ( Libération ) Resistance network and, in Raymond Aubrac ’ s case, as the military commander of the Secret Army.", "This reference to section 31 of the Act of 29 July 1881 is inescapable since, as the Criminal Division of the Court of Cassation reiterated in a judgment of 4 October 1989 ( in Pierre de Bénouville ) : ‘. .. By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members. ’ ”", "16. In a judgment of 2 April 1998, the tribunal de grande instance began by examining the various alleged defamatory statements in the chronological order of the underlying events and by comparing Klaus Barbie ’ s signed written submissions with the first applicant ’ s text, as it considered that the very purpose of the first applicant ’ s book was to", "“compare the allegations of these ‘ written submissions ’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... The entire book thereafter focuses on this ( major ) charge of treachery ”.", "17. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac ’ s initial arrest in March 1943, his release in May 1943, the escape from L ’ Antiquaille Hospital, the Caluire episode, events post - Caluire and the escape from boulevard des Hirondelles, and concluded :", "“Thus ..., without formally corroborating the direct accusations made in ‘ Barbie ’ s written submissions ’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies, and – despite the reservations expressed by the author – surreptitiously renders plausible the accusation of treachery and manipulation made in ‘ Barbie ’ s written submissions ’ that constitutes the underlying theme of the entire book. ...", "The civil parties are therefore right to consider that the entire book, and particularly the passages [reproduced in the judgment], tarnish their honour and reputation.", "The publication of the written submissions signed by Klaus Barbie and the quotation in various parts of the text of extracts from them constitutes defamation by reproduction of libellous accusations or allegations, an offence expressly provided for by section 29, first paragraph, of the Freedom of the Press Act.", "As for the author ’ s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac ’ s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie ’ s accusations.”", "18. The tribunal de grande instance then considered which section of the Freedom of the Press Act was applicable in the case and, referring to the Act of 5 January 1951 and the Court of Cassation ’ s case-law, stated that the likening of recognised Resistance movements to the Army and Navy also applied to members of those movements. It noted that for Convention purposes “law” included both legislation passed by Parliament and judicial interpretation of that legislation, provided it was sufficiently settled and accessible. It accordingly found that section 31 of the Act of 29 July 1881 was applicable.", "19. It went on to explain that the defamatory statements were deemed to have been made in bad faith and that the burden of proof was on the accused to provide sufficient justification to establish that they had acted in good faith. They had to show that there had been a legitimate interest in publication unaccompanied by personal animosity, that a proper investigation had been carried out and that the tone was measured :", "“While the work of historians, who must be permitted to go about their work with total liberty if the historical truth is to be established, may on occasion lead them to make critical assessments containing defamatory accusations against the actors – both living and dead – of the events they are studying, it can only be justified if the historian proves that he has complied with his scientific obligations. ...", "As soon as they came into the hands of the investigating judge and even though only the specialists knew what they contained, ‘ Barbie ’ s written submissions ’ received a degree of publicity that encouraged rumours to spread. There was, therefore, an argument for full publication, provided it was accompanied by an explanation of the historical background and a critical analysis that would enable the reader to form a considered opinion on the weight to be attached to the last statements of the former Nazi officer.”", "With that requirement in mind, the tribunal de grande instance found that the characteristic features of the applicant ’ s book were the excessive importance given to ‘ Barbie ’ s written submissions ’, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac ’ s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L ’ Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events.", "The tribunal de grande instance set out in detail and gave reasons for each of these assertions and concluded:", "“ ... judges are required by the nature of their task not to abdicate when confronted with the scholar ( or someone claiming to be such ) and to decide the case in law, thereby contributing in their own way to the regulation of relations in society.", "Thus, judges cannot, in the name of some higher imperative of historical truth, abandon their duty to protect the right to honour and reputation of those who were thrust into the torment of war and were the unwilling but courageous participants therein.", "Immortalised by their contemporaries as illustrious myths, these men and women have not for all that become mere subjects of research, shorn of their personality, deprived of sensibility or divested of their own destinies in the interests of science.", "Because he has forgotten this and has failed to comply with the essential rules of historical method, the accused ’ s [ the author of the book ’ s ] plea of good faith must fail. ”", "20. The tribunal de grande instance therefore found the first two applicants guilty, as principal and accomplice respectively, of the offence under sections 29, first paragraph, and 31, first paragraph, of the Act of 29 July 1881 of public defamation of Mr and Mrs Aubrac in their capacity as members of a recognised Resistance movement.", "It sentenced the first applicant, as the principal, to a fine of 100, 000 French francs (FRF) and the second, as an accomplice, to a fine of FRF 60, 000. It also found them jointly and severally liable with the third applicant to pay Mr and Mrs Aubrac damages of FRF 200, 000 each. It dismissed an application for an order for the book ’ s destruction, but made an order for publication of a statement in five daily newspapers and for each copy of the book to carry a warning in like terms. Lastly, it found the third applicant liable under the civil law.", "21. The applicants appealed against that decision.", "22. In a judgment of 10 February 1999, the Paris Court of Appeal dismissed objections of nullity that had been made by the applicants and, on the merits, examined the following questions in turn : whether the prosecution was lawful, legitimate and necessary, whether the remarks were defamatory, whether the defendants had acted in good faith and whether section 31 of the Act of 29 July 1881 was applicable.", "23. As to whether the remarks were defamatory, the Court of Appeal endorsed the reasoning of the court below and added that there were a number of factors which indicated that the author and publisher had decided to make the Aubracs ’ alleged betrayal the subject of their publication; these included the editorial presentation, the general structure of the book, the wraparound banner that juxtaposed ‘ legend ’ and ‘ history ’, and the conclusion to the book which was on the same theme.", "24. With regard to the question of defamation by innuendo, the Court of Appeal rejected the criticism of the tribunal de grande instance ’ s reasoning :", "“ Having thus decided how the book would be balanced : systematic doubt where the Aubracs are concerned and the use of Barbie ’ s document as a reference – albeit one to be treated with caution – [ the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac ’ s account.", "To take the two episodes to which the defence refer : as regards the escape from L ’ Antiquaille, the author is not merely being irreverent but clearly makes accusations of inaccuracy, contradiction (page 268) and of misrepresenting the truth (page 80) : there is no better way of insinuating that someone is lying.”", "25. The Court of Appeal then examined the applicants ’ plea that they had acted in good faith and rejected it.", "It did not deny that there could be an interest in analysing major events in the history of the Resistance and found that although some of the expressions used in the book were unpleasant they did not suffice to establish the existence of personal animosity. However, it concluded that the first applicant had failed to act with the necessary rigour for the following reasons:", "“Anyone who alleges a specific fact must first seek to verify its accuracy. Although this requirement is general, it is especially justified when the accusation is particularly serious – such as of an act of treachery leading to the death of the main Resistance leader – and when, as a historian, its maker is accustomed to questioning sources.”", "The Court of Appeal then proceeded to identify the factors from which it had concluded that that requirement had not been complied with: the first applicant ’ s failure to consult the file on the investigation that was conducted after the arrests in March 1943, even though it would have enabled him to establish the date of Raymond Aubrac ’ s arrest and whether he was already in custody when his home was searched; his lack of interest in the testimony of direct witnesses from that period who were still alive when the book was written; and his failure to investigate certain documents. Noting repeated failures by the first applicant to exercise sufficient caution ( he had published the Barbie document without subjecting it to genuine critical analysis, had directly accused the civil party of lying and had dismissed the boulevard des Hirondelles operation by members of the Resistance led by Lucie Aubrac as a sham ), the Court of Appeal rejected his plea of good faith.", "26. As regards the decision to apply section 31 of the Act of 29 July 1881, the Court of Appeal referred to section 28 of the Act of 5 January 1951 and to two judgments of the Court of Cassation and found that the civil parties had been defamed exclusively with regard to their activities as members of the Resistance “since [ the first applicant ’ s ] entire thesis conveyed to the reader the notion that they were guilty of treachery”. It rejected an argument regarding the quality of the statute that had been applied in the case before it, noting that it was some forty years old and had been the subject matter of “settled and unambiguous case-law of the highest court for some twenty years”.", "27. Finding that the sentences that had been handed down were just and proportionate, the Court of Appeal upheld all the provisions of the judgment of the court below.", "28. The applicants appealed to the Court of Cassation, pleading, inter alia, Articles 7 and 10 of the Convention on the basis that the statutory provision that had been applied was neither clear nor precise and that its interpretation by the courts was inaccessible, unforeseeable and too wide. In their final two grounds of appeal, they alleged that the Court of Appeal had failed to give reasons for its decision to hold the applicants civilly and criminally liable for public defamation.", "29. In a judgment of 27 June 2000, the Court of Cassation dismissed the appeal, holding, inter alia, that the court below had properly justified its decision. It found that the Court of Appeal had applied the law correctly:", "“ By virtue of a combination of section 28 of the Act of 5 January 1951 and sections 30 and 31 of the Act of 29 July 1881, firstly, these provisions afford protection against defamation to certain recognised Resistance movements which are likened to the regular Army and, secondly, this protection extends to members of these movements if the defamatory statement concerns their status or actions as members. ”", "It examined the final two grounds of appeal together and dismissed them, holding:", "“ The Court of Cassation is satisfied from the wording of the judgment and its examination of the procedural documents that the Court of Appeal has, for reasons which are neither insufficient nor self-contradictory, firstly, correctly analysed the meaning and scope of the impugned statements and thus identified all the constitutive elements of fact and intent of the offence of which it found the accused guilty and, secondly, used its unfettered discretion to analyse the special circumstances and concluded that the accused ’ s plea of historical criticism in good faith had to be rejected .”" ]

[ "II. RELEVANT DOMESTIC LAW", "30. Freedom of the Press Act of 29 July 1881 ( as worded at the material time )", "Section 29", "“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters.", "It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”", "Section 30", "“ Anyone who by one of the means set out in section 23 makes a statement that is defamatory of a court of first instance or of appeal, the Army, Navy or Air Force, a constitutional body or a public authority shall be liable on conviction to between eight days ’ and one year ’ s imprisonment and a fine of between 300 and 300,000 francs, or to one only of these penalties.”", "Section 31", "“ Defamation by like means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement shall be punishable by the same penalty.", "Defamatory statements about the private lives of the above persons shall be punishable under section 32 below. ”", "Section 32", "“ Anyone who by any of the means set out in sections 23 and 28 makes a statement that is defamatory of private individuals shall be liable on conviction to between five days ’ and six months ’ imprisonment and a fine of between 150 and 80,000 francs, or to one only of these sentences.", "... ”", "Law no. 51-19 of 5 January 1951", "Section 28", "“ For the purposes of section 30 of the Act of 29 July 1881, recognised Resistance movements and networks shall be deemed to form part of the Army and Navy.”", "Extracts from the Court of Cassation ’ s case-law", "Judgment of 12 January 1956", "“ The originating summons referred only to section 32 of the Act of 29 July 1881, which makes it an offence to make statements that are defamatory of private individuals; the statements which the tribunals of fact found to be defamatory amounted, on the contrary, to offences under sections 30 and 31 of the Act, as the allegations were made against a Resistance group that was likened to the regular Army, or against its leader acting in that capacity and in respect of his functions. ”", "Judgment of 13 November 1978", "“When the defamatory accusation is made against the leader of a Resistance group that is likened to the regular Army acting in that capacity and with respect to his functions ..., a charge will lie only under section 31 ... ”", "Judgment of 4 October 1989 ( Pierre de Bénouville )", "“ By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "31. The applicants complained of the lack of quality, foreseeability and accessibility of the statutory provisions that had resulted in the imposition of a penalty that was not “prescribed by law” and was disproportionate. They relied on Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Whether there was an interference", "32. The Government did not dispute that there was “interference by public authority” with the exercise of the applicant ’ s freedom of expression.", "33. The Court notes that such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore determine whether it was “prescribed by law”, was directed towards one or more of the legitimate aims set out in that paragraph and “necessary in a democratic society” to achieve them.", "B. Justification for the interference", "1. “Prescribed by law ”", "(a) The parties ’ submissions", "34. The applicants submitted, firstly, that the combination of sections 30 and 31 of the Freedom of the Press Act of 29 July 1881 and the Act of 5 January 1951 could not satisfy the requirements as to the quality, foreseeability and accessibility of the law imposed by Article 10 § 2 of the Convention.", "35. They maintained that at the time the book was published French legislation did not make it possible to affirm that public defamation of a member of the Resistance fell within section 31 rather than section 32 of the Act of 29 July 1881.", "Yet, the court ’ s sentencing powers and the remedies available to the victims depended on which section was applicable. The applicants considered that it was common ground that no French legislation existed in which a member of the Resistance had been likened to any of the persons referred to in section 31 and that by applying that provision in the instant case the domestic courts had adopted a wide interpretation by analogy.", "36. They went on to argue that the decisions in which that wide interpretation had been used were not sufficiently accessible or foreseeable: the Court of Cassation ’ s judgment of 12 January 1956 was indexed in the Bulletin officiel des arrêts de la Cour de cassation ( official law reports of the Court of Cassation ’ s decisions ) with keywords that made no reference to defamation of members of the Resistance or to the Act of 5 January 1951, nor was there any reference to that Act in the text of the judgment; the Court of Cassation ’ s judgment of 13 November 1978 was published in the same set of reports under the reference “leader of a Resistance group”, but there was no mention of the Act of 5 January 1951; the judgment of 4 October 1989 was not reported in the Bulletin officiel des arrêts de la Cour de cassation. The applicants further submitted that mere publication of an extract of a judicial decision in a review published by a trading company could not be regarded as satisfying the condition as to foreseeability and accessibility.", "37. They added that, in terms of quantity, three decisions did not suffice to constitute foreseeable case-law.", "38. The Government submitted that, under the Court ’ s case-law, the law had to be sufficiently accessible and foreseeable, which meant that the public had to be able to have an indication that was adequate in the circumstances of the legal rules applicable to a given case and the law formulated with sufficient precision to enable the citizen to regulate his conduct. They referred in that connection to The Sunday Times v. the United Kingdom (no. 1) ( judgment of 26 April 1979, Series A no. 30, p.31, § 49) and Goodwin v. the United Kingdom ( judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, pp. 496-97, § 31).", "39. They maintained that the Court of Cassation ’ s construction of sections 30 and 31 of the Act of 29 July 1881 and section 28 of the Act of 5 January 1951 was long-standing and settled and said that, in their view, the applicants must have been aware when they were prosecuted that the Court of Cassation considered that section 31 of the 1881 Act applied to cases in which a member of a Resistance movement or network had been defamed. The Government submitted that the requirement regarding the clarity of the law had therefore been satisfied in the instant case.", "40. They further argued that those two Acts and the decisions holding that section 31 of the Act of 29 July 1881 applied to members of Resistance networks, which had been published in various legal journals, satisfied the condition as to accessibility.", "41. The Government submitted, lastly, that, through their profession, the applicants must have been aware of the provisions on defamation in the Freedom of the Press Act, a statute which regulated a substantial part of media law. Furthermore, since the book attacked former members of Resistance networks, the applicants could have acquainted themselves with the case-law that supplemented the Freedom of the Press Act. Each of the applicants had been assisted by a lawyer who would, in principle, have been familiar with that case-law.", "42. The Government therefore considered that the law as applied in the present case complied with the conditions of clarity, accessibility and foreseeability required by Article 10 of the Convention.", "(b) The Court ’ s assessment", "43. The Court reiterates that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice ( see, among other authorities, The Sunday Times, cited above, § 49, and Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, pp. 2325-26, § 35).", "44. The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed ( see Cantoni v. France, judgment of 15 November 1996, Reports 1996-V, p. 1629, § 35). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, p. 71, § 37, and Grigoriades v. Greece, judgment of 25 November 1997, Reports 1997-VII, p. 2587, § 37).", "45. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails ( see Cantoni, loc. cit. ).", "46. With specific regard to the question of the accessibility and foreseeability of the law, the Court notes that the applicants in the instant case are respectively a journalist, a publisher and a publishing company.", "47. The relevant law comprised two pieces of legislation ( the Acts of 29 July 1881 and 5 January 1951 ) and three Court of Cassation decisions (of 12 January 1956, 13 November 1978 and 4 October 1989 ) which interpreted the legislation consistently and which those engaged in the press and publishing sectors must have been aware of.", "48. The Court accordingly finds that, as professional book publishers, the publisher and the publishing company must at least have been familiar with the legislation and settled case-law that was applicable in this sphere and could have sought advice from specialist counsel. In view of the nature of the book, they could not have been unaware of the risks to which the author ’ s challenging of previously undisputed historical facts exposed them. They were accordingly in a position to assess the risks and to alert the author to the risk of prosecution if the book was published as it stood.", "Furthermore, the publisher and, through him, the author should have known that it was settled case- law that a failure to exercise caution and care when collecting historical evidence and drawing conclusions therefrom could be treated by the domestic courts as a constitutive element of the offence of defamation of persons whose honour or reputation risked being tarnished by publication.", "49. In conclusion, the Court considers that the applicants ’ contention that they were unable to foresee “to a reasonable degree” the consequences publication of the book was liable to have for them in the courts is untenable. It therefore finds that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention.", "2. Legitimate aim", "50. The applicants expressed no view on this point.", "51. The Government argued that the domestic courts ’ decisions were intended to protect Mr and Mrs Aubrac from defamation in a case in which the damage to their reputation was considerable given the accusation of treachery that had been levelled against them. The decisions were thus aimed at “the protection of the reputation or rights of others” and the interference had pursued a legitimate aim for the purposes of paragraph 2 of Article 10 of the Convention.", "52. The Court finds that the aim of the relevant decisions in the present case was indisputably to protect the reputation of Mr and Mrs Aubrac, whose activities as members of the Resistance have made them public figures since the Second World War.", "53. Consequently, the interference complained of pursued at least one of the legitimate aims set out in paragraph 2 of Article 10.", "“Necessary in a democratic society”", "(a) The parties ’ submissions", "54. The applicants stressed that the book was a historical work and submitted that the general public ’ s right to know its own history had to be taken into account and entailed different approaches by the journalist and the historian.", "55. They criticised the stance taken by the domestic courts which authorised judicial intervention in historical debate and the judicial scrutiny of any historical work, thereby prohibiting all historical conjecture, denying the right to debate the official version of history that was generally accepted in France and depriving the applicants of all freedom of expression on historical matters.", "They submitted that the French courts had conclusively decided to regard Mr and Mrs Aubrac as valiant members of the Resistance and refused to permit any historian to examine their conduct in order to assess the role they had played in the events that had culminated in the meeting at Caluire on 21 June 1943. Consequently, the applicants argued that there had been no “ pressing social need ” that justified removing that episode from the scope of historians ’ freedom of opinion.", "56. The applicants went on to explain that the author of the book had relied on authentic sources that had been cross-checked, and that Klaus Barbie ’ s written submissions had been just one of a number of sources, all of which had been read critically. Their approach had been systematically to treat Klaus Barbie ’ s accusations with caution. They added that they had also taken into account the statements of two members of the Resistance who had been direct witnesses of the matters which they had researched. They stressed, lastly, that the book was written in measured tones and contended that it was legitimate for a historian with doubts about an assertion to regard it as an “ unverifiable ” accusation if he had not been able to assemble all the documentation on the issue.", "57. The applicants submitted that in those circumstances there had been a breach of their rights guaranteed by Article 10 of the Convention on account both of their convictions by the domestic courts and of the severity of the sentences.", "58. The Government maintained that the domestic courts had correctly weighed up the various interests at stake by carrying out a detailed examination of the structure of the book and analysing each individual basis for the accusation made against Mr and Mrs Aubrac.", "It had become apparent from that examination that the author had devoted the majority of the book to criticism of the Aubracs, his main accusation being their role in Jean Moulin ’ s arrest at Caluire.", "59. The point which the domestic courts criticised in their decisions was the central role Klaus Barbie ’ s written submissions had been allowed to play as a basis for challenging Mr and Mrs Aubrac ’ s version of events – despite the fact that he had been shown to be an unreliable source – without any precaution being taken with regard to presentation, any reference to the official documents or any questioning of those direct witnesses who were still alive when the book was written.", "60. The Government submitted that by constructing his argument in that way, the first applicant had failed to comply with a fundamental ethical rule of journalism that required the provision of “information that is accurate and creditworthy in compliance with the journalist ’ s code of conduct”.", "61. The Government emphasised, lastly, that the penalties imposed on the applicants could not be regarded as particularly severe and that the book containing the author ’ s ideas continued to be accessible to the public.", "(b) The Court ’ s assessment", "62. The Court reiterates the fundamental principles established by its case-law on Article 10 ( see, among many other authorities, The Sunday Times (no. 1), cited above, pp. 40-41, § 65, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).", "63. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "64. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "65. When exercising its supervisory jurisdiction, the Court ’ s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 1 0 the decisions they delivered in the exercise of their discretion. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.", "66. Article 10 does not in terms prohibit the imposition of prior restraints on circulation or all bans on dissemination, but the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court.", "67. The Court has on many occasions stressed the essential role the press plays in a democratic society. It has, inter alia, stated that although the press must not overstep certain bounds, in particular in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them ( see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 5 5, ECHR 2002-V ). The national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” ( see, among other authorities, the Bladet Tromsø and Stensaas, cited above, § 59).", "68. These principles apply to the publication of books or other written materials such as periodicals that have been or are due to be published ( see, in particular, C. S.Y. v. Turkey, no. 27214/95, § 42, 4 March 2003), if they concern issues of general interest.", "69. The Court considers that it is an integral part of freedom of expression to seek historical truth and it is not the Court ’ s role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation. As such, and regardless of the doubts one might have as to the probative value or otherwise of the document known as “ Barbie ’ s written submissions” or the “ Barbie testament ”, the issue does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision is removed from the protection of Article 10 by Article 17 of the Convention ( see Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998 ‑ VII, pp. 2885-86, § 51, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX; as regards Jean Moulin ’ s arrest at Caluire, see paragraph 10 above ). However, the Court must balance the public interest in being informed of the circumstances in which Jean Moulin, the main leader of the internal Resistance in France, was arrested by the Nazis on 21 June 1943, and the need to protect the reputation of Mr and Mrs Aubrac, who were themselves important members of the Resistance. More than half a century after the events, there was a risk that there their honour and reputation would be seriously tarnished by a book that raised the possibility, albeit by way of innuendo, that they had betrayed Jean Moulin and had thereby been responsible for his arrest, suffering and death.", "70. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts ( see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, pp. 2547- 48, § 51).", "In addition, in the exercise of its European supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in this type of case, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right of the persons attacked by the book to protect their reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life.", "71. In the present case, in order to come to a guilty verdict, the Paris tribunal de grande instance performed a three-part examination.", "It began by looking at the alleged defamatory accusations in the chronological order of the underlying events and comparing the text of Klaus Barbie ’ s signed written submissions with the text of the first applicant ’ s book, noting that the very purpose of the book was to:", "“ compare the allegations of these ‘ written submissions ’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... ”", "72. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac ’ s initial arrest in March 1943 and his release in May 1943, the escape from L ’ Antiquaille Hospital, the Caluire episode, events post - Caluire and the escape from boulevard des Hirondelles ( see paragraph 17 above ) :", "“Thus ..., without formally corroborating the direct accusations made in ‘ Barbie ’ s written submissions ’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies ...", "As for the author ’ s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac ’ s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie ’ s accusations.”", "73. After considering which statutory provisions were applicable, the tribunal de grande instance turned to the issue of the applicants ’ good faith, which is of central importance in defamation cases.", "With regard to that issue, the tribunal de grande instance found that the characteristic features of the applicant ’ s book were the excessive importance given to Barbie ’ s written submissions, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac ’ s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L ’ Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events.", "It explained and gave reasons for each of these assertions and concluded that the author ’ s plea of good faith had to be rejected ( see paragraph 19 above ).", "74. The Paris Court of Appeal adopted the Paris tribunal de grande instance ’ s reasoning as regards the defamatory nature of the statements. It added with regard to the question of defamation by innuendo (see paragraph 24 above):", "“ Having thus decided how the book would be balanced: systematic doubt where the Aubracs are concerned and the use of Barbie ’ s document as a reference – albeit one to be treated with caution – [the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac ’ s account. ”", "75. It rejected the plea of good faith on the ground that the first applicant had repeatedly failed to exercise sufficient caution.", "76. The Court observes that the domestic courts carried out a detailed and very thorough examination of the book and, in particular, the manner in which the facts and arguments were presented before concluding that the applicants were guilty of public defamation of Mr and Mrs Aubrac, in their capacity as members of a recognised Resistance movement.", "77. It considers that the convictions in the instant case were based on relevant and sufficient reasons. In that connection, it finds convincing the evidence and reasoning which persuaded the civil courts, both at first instance and on appeal, to find that the author had failed to respect the fundamental rules of historical method in the book and had made particularly grave insinuations. It refers in particular to the meticulous analysis of the book by both the Paris tribunal de grande instance in its judgment of 2 April 1998 and the Court of Appeal in its judgment of 10 February 1999. It therefore sees no reason to disagree with the domestic courts ’ analysis of the case or to find that they construed the principle of freedom of expression too restrictively or the aim of protecting the reputation and the rights of others too extensively.", "78. As to the sentences which were imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 64, ECHR 1999 ‑ IV ).", "It notes, firstly, that no order was made for the book ’ s destruction or prohibiting its publication ( see, mutatis mutandis and by converse implication, Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV ).", "Further, the Court notes that, contrary to what has been suggested by the applicants (see paragraph 57 above), the levels of the fines and orders for damages ( see paragraphs 20 and 27 above ) appear to have been relatively modest ( see, by converse implication, Tolstoy Miloslavsky, cited above ) and the sums the applicants were thus required to pay justified in the circumstances of the case. Nor, lastly, does the requirement to publish a statement in five periodicals and to include a warning in like terms in each copy of the book appear unreasonable or unduly restrictive of freedom of expression.", "79. In addition, the Court reiterates that just as, by providing authors with a medium for publication, publishers participate in the exercise of freedom of expression, as a corollary thereto they are vicariously subject to the “duties and responsibilities” which authors take on when they disseminate their opinions to the public (see, mutatis mutandis, Sürek (no. 1), cited above, § 63).", "Thus, the fact that the third applicant was found jointly and severally liable in tort with the first two applicants and ordered to pay damages to the civil parties is not in itself incompatible with the requirements of Article 10 of the Convention.", "80. In conclusion, the Court finds that the interference with the applicants ’ freedom of expression in the instant case was not disproportionate to the legitimate aim pursued. Consequently, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant, Tønsbergs Blad A/S, is the publisher of the newspaper Tønsbergs Blad. The second applicant, Mrs Marit Haukom, is its former editor-in-chief. She is a Norwegian national who was born in 1952 and lives in the city of Tønsberg in southern Norway.", "A. Background to the case", "7. Tønsbergs Blad is a regional newspaper covering primarily the city of Tønsberg and eight surrounding municipalities in the County of Vestfold. The newspaper is 100% owned by Orkla Media A/S. It is published six days a week. In 2002 it had a daily average circulation of 33,314, corresponding to a 60% household coverage within its primary circulation area.", "8. In a meeting held on 21 September 1999 the Standing Committee on Development and Environmental Affairs (a politically appointed body attached to the Municipal Council) of the Tjøme Municipality asked the municipal administration to provide a survey of properties whose owners were suspected of breaching permanent residence requirements. Under section 5(3) of the Concession Act ( Lov om konsesjon ved erverv av fast eiendom ) of 31 May 1974 ( no. 19 ), such requirements applied to the extent that it was deemed necessary to prevent private properties intended for permanent residential use from being transformed into holiday homes. Provisions to this effect were further contained in Regulation ( forskrift ) no. 2089 of 14 December 1984, issued under the above-mentioned Act in respect of the Tjøme Municipality, one of the few municipalities in Norway which applied permanent residence requirements for all - year residences. The purpose was to fend off pressures exerted on the local community by the exceptionally high demand for holiday homes in the Tjøme area, an attractive holiday destination for a large number of people residing notably in the Oslo region. There was also a concern that too many residences were unoccupied during off - season periods.", "9. On 11 October 1999 the municipal administration drew up a list which was entitled “Properties which should be verified in relation to the residence requirements. (Not public)”. It was a tip-off list based on information from inhabitants and local politicians in the Municipality and was presented to the Standing Committee at a meeting open to the public held the following day. The list included the name of Mr Tom Vidar Rygh, who at the time was the Executive Vice-President, the Head of Financial Investments and a member of the Executive Board of Orkla ASA, one of Norway's largest industrial companies.", "10. The property in question had been acquired in 1987 and Mr Rygh's wife held title to it (a fact that was not deemed significant in the defamation proceedings summarised below). An all-year residence had been erected on the property in 1988 and the Rygh family had used it as their main residence for 10 years until 1998, when they had moved to Oslo because of Mr Rygh's professional situation. Before that, they had been given legal advice that using the property solely for holiday purposes would not conflict with the residence requirements under the relevant national law.", "11. Mr Terje Wilhelmsen, a journalist, became aware of the process initiated by the Tjøme Municipality and received a copy of the above-mentioned list. He had a close network of contacts within the Municipality. From autumn 1999 he made a number of enquiries to the Municipality on the subject. On 7 June 2000 the journalist interviewed the director of the Municipality's Planning and Building Department ( leder for plan- og bygningssaker ), Mr Dag Dreyer Sæter.", "B. The contested publication of 8 June 2000, subsequent exchanges between those concerned and other publications", "12. On 8 June 2000 the newspaper published as its main story an article written by Mr Wilhelmsen, which gave rise to the defamation proceedings brought against the applicants by Mr Rygh. On the front page there appeared an introduction to the article under the headline (all quotations below are translations from Norwegian):", "“ May be forced to sell ”", "and the sub- heading", "“ [H.K.] and Tom Vidar Rygh will have to explain themselves on permanent residence requirements ”", "The introduction read:", "“ Permanent residence requirements : In the worst - case scenario [ H.K. ] may be forced to sell her property at Hvasser [an island next to Tjøme ]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor [ Fylkesmannen ] in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements.", "Taking action : The Tjøme Municipality will now take a firm line towards house owners within the Municipality who do not comply with the permanent residence requirements. For a long time there has been a zero limit on concessions at Tjøme. This means that all-year residences must be inhabited all year. Those who breach this requirement may be forced to rent out or to sell their property. This is confirmed by the director of the Planning and Building Department, Mr Dag Dreyer Sæter .”", "The front page also contained photographs of Mrs H.K. (a famous singer) and of Mr Rygh.", "13. The article continued inside the paper on page 3 with the following headlines :", "“ Tjøme hunts for permanent residence sinners", "[H.K.] and Tom Vidar Rygh may be forced to sell”", "and an introduction:", "“ TJØME : Both singer [H.K.] and Orkla director Tom Vidar Rygh may be forced to sell their properties in Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.”", "14. At the top of page 3 the paper published photographs of Mrs Rygh's and Mrs H.K.'s respective properties. Under the former photograph, to the left, there was a caption:", "“ RESIDENCE REQUIREMENTS : Tom Vidar Rygh owns this property in Sandøsund at Hvasser. The Tjøme Municipality considers that the residence requirements are not satisfied .”", "Between the two above-mentioned photographs there was a small photo of Mr Rygh with this caption:", "“ MUST PROVIDE AN EXPLANATION : - It must be due to a misunderstanding, says Tom Vidar Rygh ”", "15. The article stated:", "“ The Tjøme Municipality is now in the process of tightening up the obligation to comply with the residence requirement in the municipality. A zero concession limit has long since been introduced. This means that year-round properties must be lived in all year.", "Confrontation", "In the near future the technical services department of the Tjøme Municipality will approach the County Governor in order to report its suspicion that the residence requirement is not being fulfilled for a number of properties. It is then up to the County Governor to confront the owners of these properties.", "The director of the Planning and Building Department, Mr Dag Dreyer Sæter, does not wish to comment to Tønsbergs Blad as to which properties are on the list they are sending to the County Governor. But from what Tønsbergs Blad has been given to understand, the property of Tom Vidar Rygh at Sandøsund on Hvasser island is on the list. The same applies to H.K.'s property, which is at Nes on Hvasser.", "Clearing up", "' I cannot comment on individual properties at the present time. First we must write to the County Governor. This will occur in the near future. '", "' But will the Tjøme Municipality now tighten up the obligation to comply with the residence requirement? '", "' Yes, indeed. This is an issue that has been discussed at both the administrative and the political levels for some time. Now we want to do something about it. We know that the residence requirements are not being complied with for several properties in the municipality. This is why we are now taking this initiative vis-à-vis the County Governor. Now we want to get this cleared up.'", "Can be rented out", "' What are the owners of these properties risking?'", "' To begin with, they will have to explain themselves to the County Governor. I would emphasise that it is not a requirement that the owners themselves live in the properties. It is enough for them to be rented out on a year-round basis. If this is not done, there may be a question of enforced sale,'says the director of the Planning and Building Department Dag Dreyer Sæter to Tønsbergs Blad.", "' Misunderstanding'", "H.K. owns the property on Hvasser together with her husband ... He does not wish to comment on the matter to Tønsbergs Blad, in view of the fact that he has heard from neither the Municipality nor the County Governor.", "Tom Vidar Rygh told Tønsbergs Blad that if his property on Hvasser was on the Municipality's list of properties where the residence requirements are not being fulfilled, this had to be due to a misunderstanding. Beyond that he did not wish to comment .”", "16. Below, on the same page, Tønsbergs Blad published another article based on interviews with local politicians:", "“ Residence requirements are a two -edged sword", "TJØME : May- Sylvi Hansen, who is the leader of the Conservatives on Tjøme Municipal Council, thinks that the time is ripe for a new and thorough political debate on the question of residence requirements.", "Anne Vestad", "' The whole question of residence requirements is a two -edged sword', she says.", "The Tjøme Conservatives have the maintenance of the residence requirements in their manifesto, but at the same time the party feels a need to have a broad political debate on the question. May- Sylvi Hansen, who in addition to being the leader of the Conservatives on Tjøme Municipal Council also sits on the Planning and Environment Committee, tells Tønsbergs Blad that at any rate she sees no reason for a tightening-up of the obligation to fulfil the residence requirements now.", "' The residence requirements issue is under discussion in the Tjøme Conservative Party, and the question is whether we should perhaps be a little more liberal in the time to come. But this is a two-edged sword. On the one hand we don't want to see year-round residences made into summer homes, but on the other hand we have had considerable migration to Tjøme in recent years – the population is growing fast,'says May- Sylvi Hansen.", "Not a problem any more", "' In the seventies and eighties the residence requirements were entirely necessary in this municipality. But in my opinion, after the big migration to the municipality began, empty houses in the winter are no longer a problem. We should therefore undertake a serious review of the whole issue of residence requirements and ask whether, when all's said and done, it's just an old bogeyman,'says Hansen.", "Arne Fjellberg of'The Tjøme List'independents, who chairs the Planning and Environment Committee, does not agree with May- Sylvi Hansen that the occupation provisions should be liberalised.", "' Must tighten up'", "' I fully support the director of the Planning and Building Department's view that it is necessary to tighten up the obligation that the residence requirements be fulfilled. With the mobility and flexibility that many now have in relation to their work, it shouldn't be a problem to live in Tjøme even if you work somewhere else. We want people to live in the houses of Tjøme, make no mistake about that,'says Fjellberg.", "' So you don't support May- Sylvi Hansen in her view that it is time for a general rethink of the residence requirements? '", "' The Tjøme List wants to retain the residence requirements, but I'm willing to be a part of a discussion of the residence requirement in general. It could surely be useful,'says Arne Fjellberg .”", "17. On 9 June 2000 Aftenposten, one of Norway's largest daily newspapers, published a brief item on the matter, stating, inter alia, that an Orkla director and a famous singer might be forced to sell their properties, without specifying their names.", "18. On 12 June 2000 Mr Rygh addressed a letter to the Tjøme Municipality. Its Chief Executive Officer ( Rådmannen ), Mr Gunnar A. Hansø, replied by a letter of 22 June 2000, which stated inter alia :", "“The Tjøme Municipality is working on a survey of the status of the permanent residence requirements which have been implemented at Tjøme under section 5(3) of the Concession Act. Part of the reason why this work has started now are the enquiries from a number of local residents. These are neighbours to properties which are used, or should be used, for permanent residence but which, according to these enquiries, are not being used for this purpose. The list of properties that must be'checked out'has now become quite extensive. A number of the enquiries result from the lack of knowledge about the contents of the regulations and the circumstances pertaining to the relevant users. Consequently, these properties are being checked out, which is an ongoing process. ...", "Your wife's property has been reviewed in the same way, and I can confirm that the property, on legal grounds, has now been removed from the list.”", "19. On contacting the Tjøme Municipality on 29 June 2000, the journalist Mr Wilhelmsen was informed that the Chief Executive Officer had replied to Mr Rygh and that Mrs Rygh's property had been removed from the list. Mr Wilhelmsen received a copy of the above-mentioned letter of 22 June 2000.", "20. On 30 June 2000 Tønsbergs Blad published an article entitled", "“ No restrictions on new cottages", "Tjøme Chief Executive Officer points to major loopholes in the Concession Act”", "with the following introduction:", "“ Escape : Singer [H.K.] and Orkla director Tom Vidar Rygh escape the permanent residence requirements in the Tjøme Municipality. They were included on the Municipality's list of properties that were subject to residence requirements, but have now been taken off. The reason is that they have built on their land themselves. Thus, the residence requirements do not apply.", "Major loopholes : Chief Executive Officer Gunnar Hansø (picture) at Tjøme asserts that the Concession Act is filled with holes the size of a barn door. He warns that the Municipality will take up the issue with the Ministry of Agriculture. By exploiting loopholes in the Concession Act, it is easy to get hold of an entirely new holiday home at Tjøme. All you need to do is to acquire a plot and build an all-year residence on it. Then no one can require permanent residence.”", "21. The article continued on page 5, with the following headlines and introduction:", "“ Residence requirements do not apply to new houses", "[H.K.] and Tom Vidar Rygh do not have to move to Hvasser .”", "“ TJØME : Singer [H.K.] and Orkla director Tom Vidar Rygh do not have to take up permanent residence in the Tjøme Municipality. The reason: they have built on their properties themselves. Thus the Concession Act does not apply. This means that they do not have to reside here.”", "22. In addition the coverage contained photographs of Mr Rygh and Mrs. H.K., with captions stating that they had “escaped” the residence requirements with regard to their properties. There were also photographs of the properties, with captions stating “No residence requirement” and adding that the properties, which had previously been on the Municipality's list of properties not complying with the residence requirements, had now been taken off the list.", "23. The article reproduced an interview with the Municipality's Chief Executive Officer, Mr Hansø, who was reported to have said that he had absolutely no wish to comment on individual cases, but confirmed that some had been cleared and removed from the list: “We did this for legal reasons. ” He had further stated, inter alia, that it was unfortunate that the Concession Act, which had loopholes the size of a barn door, did not apply to the purchase of undeveloped sites, but only to properties with buildings on. In practice, that meant that anyone building a year-round residence in the Tjøme Municipality did not have to live in the house at all and could not be forced to move in. They could use it as a summer holiday cabin if they wished. It was not until the residence had been used for a period as a year-round home that the residence requirement would apply, but then only in the event of resale of the property. It could not be fair that residence requirements applied to some properties but not to others. To change this he would raise the matter with the Ministry of Agriculture.", "24. On 5 July 2000 Tønsbergs Blad published an article containing, inter alia, an interview with a former Minister of Agriculture, who stated that the loopholes in the Concession Act that had been detected in Tønsbergs Blad's articles were “completely unreasonable” and should be amended.", "25. On 5 and 6 July 2000 Mr Rygh conveyed to the newspaper orally and in writing his dissatisfaction with its 8 June 2000 coverage, including the fact that his name had been mentioned. The newspaper responded, orally and in writing. By a letter of 18 July 2000, Mr Rygh's lawyer demanded that Tønsbergs Blad publish a rectification and an apology. The newspaper replied that it had acted in accordance with the ethics of journalism and that, immediately after becoming aware that Mr Rygh's property had been removed from the list, it had accordingly published an article on the front page and had offered him space for his own viewpoints, an offer it had maintained for a period thereafter. An interview with Mr Rygh had not been published, as the newspaper had respected his decision that this was not desirable.", "26. In a further article published on 8 August 2000, entitled “ Tønsbergs Blad clarifies”, the paper stated that the properties belonging to Mrs H.K. and Mrs Rygh had been removed from the list in question, that the requirements at issue did not apply to their properties and that, accordingly, there had been no breach of the permanent residence requirements with regard to these properties.", "C. The defamation proceedings brought by Mr Rygh", "27. On 15 September 2000 Mr Rygh instituted private criminal proceedings ( privat straffesak ) before the Tønsberg City Court ( byrett ). He requested that both the introduction on the front page and the article on page 3 be declared null and void under Article 253 of the Penal Code, that Tønsbergs Blad and its editor-in-chief (at the time of publication Mrs Marit Haukom ) be punished under Articles 247 and 431 respectively of the Penal Code and that the newspaper and its editor-in-chief be ordered to pay compensation for non-pecuniary damage under section 3-6 of the Damage Compensation Act 1969.", "28. By a judgment of 13 September 2001 the City Court acquitted the applicants and ordered Mr Rygh to pay 183, 387 Norwegian kroner ( NOK ) in respect of their costs. It found that a defamatory allegation had been made but, with reference to Article 10 of the Convention, attached special importance to the public interest of the permanent residence issue and to the freedom of the press in respect of presentation and form.", "29. On 26 September 2001 Mr Rygh appealed against the judgment to the Agder High Court ( lagmannsrett ).", "30. By a judgment of 21 May 2002 the High Court upheld Mr Rygh's claims in part.", "31. As to the first issue, whether the impugned statements amounted to defamation for the purposes of Article 247 of the Penal Code, the High Court observed that it agreed with the City Court that, when considering the 8 June 2000 article in isolation and as a whole, the allegations in question must be understood to mean that the Municipality, after having made a specific assessment of the relevant properties, had taken the stance that a breach of the residence requirements had occurred with regard to Mr Rygh's property, among others, and that his name had therefore been entered on a list which the Municipality had decided to transmit to the County Governor for further processing. The report should therefore be perceived by the ordinary reader as an allegation that Mr Rygh had breached the obligation of residence.", "32. As to the question whether this amounted to a defamatory accusation, the High Court held that a breach of the residence requirements did not constitute a criminal offence but that, in a place like Tjøme, many people would regard it as being immoral and an affront to the public interest. The High Court agreed with the City Court that the accusations were not of the most defamatory kind but, not least in view of the strong personal angle of the report, the High Court found that it was capable of damaging Mr Rygh's good name and reputation. An examination of whether it was capable of causing a loss of the reputation required for the exercise of his profession was not necessary.", "33. The High Court did not find that the applicants had adduced sufficient proof of the defamatory accusation under Article 249 § 1 of the Penal Code to avoid liability for defamation under Article 247. In this connection it observed:", "“It is correct that Tom Vidar Rygh's name was mentioned on a list drawn up in October 1999 by the administration of the Tjøme Municipality for its Standing Committee on Development and Environmental Affairs. The heading of the list reads:'Properties which should be verified in relation to the residence requirements'. Further, it was noted that the list was not public. Had the Tønsbergs Blad limited itself to stating this, it would have made an accusation that was true. ... Mr Rygh's name was put on the preliminary'tip-off'list, based on tip-offs from inhabitants, local politicians and others. The High Court has no doubt that a number of local inhabitants could have believed that the residence requirements were breached in so far as Rygh's property was concerned, given the fact that it concerned an all-year residence which had been vacated and used as a holiday home. The mayor of the municipality has explained that he was of the opinion that the permanent residence requirements were breached, as has Mr Sæter, the director of the Planning and Building Department. However, Mr Sæter explained in the proceedings before the High Court that, at that time, he had not conducted a further investigation of the property. His view that the property was subject to the permanent residence requirements had been based on his belief that it had been converted from an older residence. He was fully aware that permanent residence requirements did not apply where a person had acquired an open plot of land and then built a house on it. Mr Sæter also explained that, when he had told the journalist Mr Wilhelmsen that a list would shortly be submitted to the County Governor, he was aware that the list would have to be examined first. According to the High Court's understanding of Mr Sæter, there had been no further elaboration of the preliminary tip-off list since autumn 1999. ... Since Mr Sæter was well aware of the exception to the residence requirements for new buildings on open plots of land, he would have quickly discovered that no obligation of residence applied here. ... The High Court further notes that to date none of the names that were on the provisional tip-off list from the autumn of 1999 have been transmitted to the County Governor because the Municipality believed that there was a breach of the residence requirements.", "The allegations made by Tønsbergs Blad on 8 June 2000 were therefore demonstrably inaccurate. ”", "34. The High Court was divided as to the question whether the accusations were unlawful ( rettstridige ). A majority of four members found that that was the case, whereas a minority of three members agreed with the City Court.", "35. However, a qualified majority of minimum five votes was required for finding liability under Article 247 of the Penal Code. Mr Rygh's claim that he had been the victim of unlawful defamation under Articles 247 and 431 by the newspaper and its editor-in-chief, respectively, was therefore rejected.", "36. On the other hand, under Article 253 of the Penal Code, which required only a simple majority, the High Court declared the following two statements, published respectively on the front page and on page 3 of the 8 June 2000 issue (see paragraphs 1 2 and 13 above), null and void:", "“ Permanent residence requirements : In the worst – case scenario [ H.K. ] may be forced to sell her property at Hvasser [an island next to Tjøme ]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. ”", "“ ... Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.”", "The High Court further decided that the applicants were jointly and severally liable, under section 3-6 of the Damage Compensation Act 1969, to pay Mr Rygh NOK 50,000 in compensation for non-pecuniary damage. The High Court in addition decided that no costs should be awarded with respect to the proceedings either before the City Court or the High Court.", "37. The applicants appealed to the Supreme Court against the procedure followed by the High Court ( saksbehandlingen ), namely the fact that the issue of nullification had been determined by a simple majority, and against its application of the law ( rettsanvendelesen ). On 4 September 2002 the Appeals Leave Committee of the Supreme Court granted leave to appeal in so far as the latter ground was concerned but refused such leave with respect to the former ground.", "38. By a decision of 1 July 2003 the Supreme Court dismissed the applicants'appeal and ordered them to pay Mr Rygh NOK 673,879 for his legal costs. When deciding on the question whether to declare parts of the newspaper article null and void, the Supreme Court applied Article 2 § 3 of the Code of Criminal Procedure. This limited the scope of the Supreme Court's review of the facts of the case (see further on this below). As far as the question of non-pecuniary damage was concerned, the appeal only referred to the application of the law. Therefore, even though the Code of Civil Procedure was to be applied in this regard, in accordance with Article 435 of the Code of Criminal Procedure, the Supreme Court had to base its examination on the same facts as the High Court in this connection too.", "39. In his opinion, to which three other members subscribed, Mr Justice Støle held, inter alia :", "“ (33) I shall first look at how the statements must be understood. It follows from case - law that the interpretation is part of the application of the law .... It is the statements whose nullification is requested which are to be interpreted. The question is how these must be assumed to have been understood by the readers of the newspaper. Taking the wording as our point of departure, we must then look at what perceptions the statements create in the ordinary newspaper reader. In my opinion there is no conflict between the case-law of the European Court of Human Rights and that of the Supreme Court as regards the subject matter of the interpretation; see the references to'the ordinary reader'in the decisions of the European Court of Human Rights.", "(34) The statements to be interpreted are included in the newspaper's first story of 8 June 2000. In the usual way the statements must be interpreted in context with the rest of the news report, with its typography and use of pictures. Like the High Court, however, I find it clear that the subsequent articles, carried on 30 June and 8 August 2000, are not of significance for this purpose. I shall return to the significance of the follow-up reportage in another context. Here it is sufficient to show that these are not suitable for shedding light on the meaning of the statements whose nullification is being requested. ... The statements in the story of 30 June 2000 are more of the nature of a description of a subsequent development, namely that Mr Rygh has been'cleared'in the case. I would add – not that my standpoint depends on it – that the distance in time to the article to which the nullification claim applies is also materially greater than in Norsk Retstidende ('Rt') 2002-764.", "(35) The unanimous High Court has summarised its interpretation as follows:", "' When one accordingly considers the article of 8 June 2000 in isolation, the High Court agrees with the City Court that the statements, seen in isolation and as a whole, must be perceived by the ordinary reader as saying that the Municipality, after considering the relevant properties, has taken the position that there has been a breach of the residence requirements for, inter alia, A's property, and that his name has therefore been written down on a list that the Municipality has decided to refer to the County Governor for further action. The story must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached the residence requirements. '", "(36) This by and large coincides with my own view. The core of the accusation was that Mr Rygh found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons whom the Municipality considered to have breached the residence requirements. I do not, however, concur with the majority of the High Court that the story'must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached his residence requirements'. It is clearly apparent from the article that it is the Municipality's opinion that is being reported, and that the list is to be sent to the County Governor for decision.", "(37) I agree with the High Court that the statements, as interpreted, contain a defamatory accusation; see Article 247 of the Penal Code. It is the first alternative in that provision that is relevant, and the allegation that the Municipality considered that the residence requirements had been breached was liable to damage his'good name and reputation'. An accusation of a breach of the law of this nature must be regarded as defamatory. It is the public's moral judgment of the act that is decisive, and it is not a requirement that actual damage be demonstrated or substantiated. The High Court found that no evidence of the truth of the accusation was presented, and this conclusion is binding on the Supreme Court.", "...", "(40) In the specific weighing of factors in our case, the point of departure must be that Tønsbergs Blad has published a defamatory accusation about factual matters, namely that the Municipality had considered Mr Rygh's property under the rules on residence requirements and was of the opinion that Mr Rygh had breached the residence requirements. In this connection I do not accord any independent weight to the fact that he was not the holder of title to the property. The Supreme Court must find that the accusation was untrue – that applies both to the Municipality's alleged perception that the residence requirements had been breached, and the allegation that Mr Rygh's name was entered on a list that the Municipality, on the basis of such a perception, had prepared of owners of properties in respect of which the residence requirements were supposed to have been breached. As regards the facts, a unanimous High Court has found that this was a provisional'tip - off list'based on tips from inhabitants and local politicians in the Municipality. It had been drawn up by the municipal administration in October 1999, and bore the title'Properties which should be verified in relation to the residence requirements. (Not public)'. The High Court also noted that the Municipality, at the time the newspaper published the article on 8 June 2000, had not'undertaken any further processing of the provisional tip - off list from the autumn of 1999'. The Supreme Court is bound by this assessment of the evidence.", "(41) The main rule in both Norwegian defamation law and Article 10 of the European Convention on Human Rights is that non-proven defamatory allegations of fact are not protected by freedom of expression. As regards the European Court's case - law, I refer to the judgment of 20 May 1999 in Bladet Tromsø and Stensaas v. Norway ( no 21980/93), § 66, and to the judgment of 7 May 2002 in McVicar v. United Kingdom ( no. 46311/99), §§ 84 and 87; there must be special grounds for departing from this main rule.", "(42) There is also a distinction between transmission of other people's untrue accusations and the media's own presentation of non-proven defamatory allegations. Freedom of expression stretches further to cover transmission, depending, inter alia, on who has made the allegation that is transmitted. If it is a report from a public authority, as in the Bladet Tromsø case, freedom of expression enjoys stronger protection.", "(43) In our case it cannot be found that the newspaper has transmitted a defamatory accusation that was made by others. The article gives no source for the accusation, and the Supreme Court cannot depart from the High Court's (the majority's) assessment of evidence with regard to the newspaper's having based itself on an anonymous source in relation to the information that Mr Rygh was on the list that was to be sent to the County Governor and that his property was'thus to be looked into with regard to a breach of the residence requirements'. The reliance on anonymous sources otherwise prevents the courts from testing whether the journalist displayed due care by employing that source; see Rt 1987-764, p. 771, and the European Court of Human Rights'judgment in McVicar, § 86. Referring to anonymous sources should therefore in this connection be equated with accusations made by the newspaper without giving sources. I will return later to the question of what grounds the newspaper had at the time of publication for the truth of the accusation.", "(44) The decision in Rt -2002-764 and the case - law of the European Court of Human Rights shows that the specific weighing of factors must take into consideration several criteria. Of these I would emphasise the degree of public interest, the nature of the accusation, including whether the accusation is classified as a'value judgment'or a'factual statement', whether it is directed against a public person or a private individual, and the degree of care, including the extent to which the media at the time of publication had factual support for considering the allegation to be true. In general, the protection of the expression will be stronger if it concerns matters of public interest, value judgments, imparting of information, a public person, and if there are strong reasons for holding the allegation to be true. Contrariwise: if the case concerns limited public interest, factual statements, the media's own presentation, private persons and weak grounds for holding the allegation to be true, the protection of the expression will be weaker.", "(45) That the expression containing the accusation is of public interest is in my view a fundamental criterion for regarding the media's own presentation of untrue defamatory allegations against private individuals about factual matters as being protected by freedom of expression.", "(46) It is immediately clear that the question of enforcement of the residence requirements for year-round residences in a coastal municipality like Tjøme is of public interest. For Tønsbergs Blad as the local newspaper in the region, this was naturally a topic for critical coverage. The fact that there existed a list of properties that there was a question of referring to the County Governor must also be regarded as being of interest for the residents of the region and the newspaper's readership. Which properties or owners were on the list, on the other hand, must in my opinion be regarded as of limited public interest. If any of the individuals who were entered on the'tip - off list'– for example owing to their function, position of trust or participation in the public debate – had had a special connection to the issue of residence requirements, it might have been different. It may well be the case that the modern news industry makes considerable use of known persons to arouse the interest of the readers. But I agree with the High Court that the fact that Mr Rygh was a relatively famous person as the executive VP of Orkla does not mean that he can automatically be regarded as a public person in relation to the rules on residence requirements. The majority's emphasis on his not having involved himself in the public debate on this topic appears very consonant with the European Court of Human Rights'reasoning in its judgment of 25 November 1999 in Nilsen and Johnsen v. Norway ( no. 23118/93), § 52, first sub-paragraph, with its emphasis on Bratholm's'participation in public debate'as the central theme.", "(47) I would then return to the question of the journalist's due care in the publication, and view this in the context of the use of an anonymous source and of what factual grounds he had at the time of publication for considering the allegation true. I would first remark that there did not exist any written documentation from the municipality's processing of the matter that could support the allegation, over and above what the unanimous High Court has characterised as'the provisional tip - off list'. As mentioned, the Supreme Court must in my opinion base its decision on what the High Court has found with regard to the use of an anonymous source. I cannot therefore see that it can be found that the newspaper had other sources or other grounds for its allegation that Mr Rygh's name was on a list that the Municipality should'in the near future refer to the County Governor'. This was the basis for the accusation that the Municipality considered that Mr Rygh had breached the residence requirements. Even if use of anonymous sources is a recognised tool of modern journalism, such use of sources will imply a stricter requirement of due care. Moreover, in such a situation, it must to a considerable degree be the newspaper's risk that the factual information conveyed may turn out to be untrue.", "(48) It is true that the same day the newspaper carried an interview with the director of the Municipality's Planning and Building Department, in which it was confirmed that the Municipality would in the near future be sending a list to the County Governor. But in my opinion the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed. In this connection I would not lay any particular emphasis on the fact that representatives of the Municipality may – before consideration of the tip - off list – have considered that the residence requirement applied to the Rygh family's property. Nor did the journalist claim to have based his story on information from these people. Otherwise, in my view, there are generally grounds for emphasising the big difference between being on a so-called tip - off list that has not been considered by the Municipality and being on a list that the Municipality has decided, after processing and consideration, to refer to the County Governor, who is the central government's supervisory and administrative authority.", "(4 9) When Mr Rygh was contacted by the journalist immediately prior to the newspaper's running the story on 8 June 2000, his reaction was that the whole thing had to rest on a misunderstanding. Even if it is understandable that the newspaper may have wanted a broader statement from Mr Rygh, I cannot see that he can be blamed for his behaviour here. Without it having any importance for my view on the question I am discussing here, I would like to mention that it was subsequently discovered that Mr Rygh had obtained legal advice on the residence requirements in connection with his family's move to Oslo in 1998 in consequence of his work situation in Orkla. As the situation must have appeared to him, when he was contacted by the journalist immediately before the newspaper ran the story on 8 June 2000, his reaction was in my opinion understandable. The circumstance that I have mentioned here cannot in any event mean that the journalist may be regarded as having acted with due care.", "(50) The articles that Tønsbergs Blad carried on 30 June and 8 August 2000 are of negligible significance for the questions I have now discussed. The stories came a relatively long time after the initial article. And under Article 253 § 2 of the Penal Code, claims for nullification must be rejected when the person making the accusation'withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person'. Tønsbergs Blad has not, however, requested the case to be dismissed from the courts, and I have no occasion to enter into any discussion of this question. I would, however, remark that Norwegian defamation law is based on the notion that a withdrawal of an allegation has significance in relation to the sanctions, and not the assessment of unlawfulness ( rettstridsvurderingen ).", "(51) As the case now stands, I cannot agree with Tønsbergs Blad that the newspaper's follow-up report means that there is on the whole a balanced presentation suggesting that the statements in the story of 8 June 2000 cannot be deemed unlawful. The story of 30 June 2000 was in particular angled in such a way as to make it less appropriate as a modification of the original statement's defamatory character; see the use of the expression that Mr Rygh'is escaping'the residence requirements. In the discussion of 8 August 2000, under the headline'Tønsbergs Blad clarifies', there is a more neutral correction, but it is not stated here either that Mr Rygh has not been on any list that has been considered by the Municipality.", "(52) By way of conclusion I see good reason to emphasise: as will be apparent from what I have reproduced from the first voting judge in Rt. 2002-764, in considering specific statements the press's role as a central practitioner of freedom of expression must be weighed against the interests of privacy, including the reputation of the individual. When the expression concerns a case of public interest, the role of the press as a'public watchdog'means that interference with freedom of expression requires a weighty justification. In our case it is the protection of Mr Rygh's reputation that calls for the interference. The only way I can see the situation is that Tønsbergs Blad could have highlighted the residence requirements issue critically, as it did in the reportage of 8 June 2000, without the strong focus on Mr Rygh personally – a focus that rested on a deficient factual basis.", "(53) In the light of this I have concluded that the statements of which nullification is requested are not protected by Article 10 of the Convention and that the request must be granted. Since the special arguments regarding the compensation claim for non-pecuniary damage have not been maintained, it follows that this part of the judgment is also upheld. ”", "40. The dissenting judge, Mr Justice Rieber-Mohn, stated:", "“ (56) ... I concur that in its news coverage of 8 June 2000 Tønsbergs Blad published a defamatory statement – an accusation of a factual character – for which there was no factual basis. I also agree with the first voting judge that the core of the accusation is that Mr Rygh found himself on a list that the Tjøme Municipality had drawn up, which contained the names of individuals whom the Municipality considered to have breached the residence requirements. This would, however – assuming it was correct – not have been a final declaration that there had been a breach of the residence requirements. For this reason, among others, I agree with the minority of the High Court and the City Court that the accusation lies in the lower stratum of what can be covered by Article 247 of the Penal Code. I also have the impression that the High Court's majority by and large agree with this.", "(57) When an untrue defamatory statement is made, the point of departure is also clear under the European Court of Human Rights'case - law concerning Article 10 of the European Convention: the accusation is not protected by freedom of expression. But exceptions to this may be contemplated. If the accusation is to enjoy protection under freedom of expression, it must at the least be demanded that the news coverage in which it is contained is of public interest and additionally that the necessary care was taken by the newspaper. I consider that these criteria were met in this case.", "(58) There can be no doubt that the general subject with which the newspaper was concerned, and with which the news coverage of 8 June 2000 really dealt, namely compliance with the rules on residence requirements, was and is of great public interest. The question is whether it is in the public interest to publicise a possible breach of the residence requirements on the part of Mr Rygh. I would first mention that in modern journalism it is a common and recognised method of popular education to illustrate general and usually difficult questions by means of the roles and fates of individuals, when they are considered especially relevant. When individuals are unwillingly brought forward, and are subjected to accusations of crime and so forth, a mass medium must have good reasons for this, for example if the person concerned has sought out the light of publicity in this area, or is a prominent person in society who must accept that special demands are made of his integrity and sense of responsibility to society. At the time in question Mr Rygh belonged to the top management of one of the country's biggest industrial conglomerates, and his name was not unfamiliar in the news. In my opinion individuals who have sought prominent positions in society, which require a special degree of trust from the public, must to some extent accept that the media will follow them with the eyes of Argus, not just in their professional activities but also when, in the more private sphere, they challenge laws and other regulations that are particularly meant to safeguard the interests of society. It is therefore possible to conceive of violations of the law by these individuals that in the circumstances will be of public interest, even if the breach carries no criminal responsibility or the penalties are minor. In this case the newspaper thought that Mr Rygh had broken the rules on residence requirements, which in public opinion was and is of major social importance, even if such a contravention is not a criminal offence. I have difficulty seeing that it was not a matter of public interest if such a very prominent person as Mr Rygh had not complied with the residence requirements with regard to his property in the Tjøme Municipality.", "(59) The question then becomes whether the newspaper has acted with the requisite care. It must be noted that the journalist used an anonymous source when he wrote that Mr Rygh was on the Municipality's list of those who were considered to have breached the residence requirements. It is undisputed that for a long while Tønsbergs Blad had been working on this topic, and that the journalist – who lived at Tjøme – had been in contact with several representatives of the Municipality. It must also be noted that the journalist, on application to the Municipality, received confirmation that there existed a list that the Municipality had drawn up, but the mistake was that this was a list of individuals who, according to external tip -offs, had breached the obligation, and not a list of individuals whom the Municipality had already found to have breached it. The newspaper thus confused the tip - off list, which contained Mr Rygh's name, with the list that the Municipality was indeed to refer to the County Governor for a decision on whether the residence requirements had been complied with.", "(60) I cannot see that the newspaper is much to be blamed for this confusion. The journalist had reason to believe that a municipal assessment had been carried out at that point. In the story of 8 June 2000 the director of the Planning and Building Department confirmed that technical services would'in the very near future'write to the County Governor regarding individuals whom the Municipality suspected of breaching the residence requirements. The director also stated:'We know that the residence requirements are not being complied with for several properties in the Municipality'. And the director did not wish to say'which properties are on the list we are referring to the County Governor'. This last statement gave the clear impression that the list which the Municipality had assessed already existed. In addition, prominent representatives of the Tjøme Municipality – such as the mayor and the director of the Planning and Building Department – subsequently stated that, at the time when the newspaper had carried the controversial reportage, they had been of the opinion that Mr Rygh was in breach of the residence requirements. This is clearly apparent from the High Court's judgment, both the minority and majority remarks. Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000. I would also mention that, according to the story, the newspaper had approached Mr Rygh for his view of the matter, but he did not want to comment beyond stating that the fact that his name was on the list must have been due to a misunderstanding. ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "41. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions in Articles 246 and 247 of the Penal Code, an order under Article 253 of the Code declaring the defamatory allegation null and void ( mortifikasjon ) and an order under the Damage Compensation Act 1969 to pay compensation to the aggrieved party. Only the latter two were at issue in the present case.", "42. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court. In so far as relevant this provision reads:", "“1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.”", "43. Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof.", "44. Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy.", "45. Section 3-6 of the Damage Compensation Act reads:", "“A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable.", "If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay compensation. The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation...”", "46. Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Article 247 of which provides:", "“Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”", "A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“ rettsstridig ”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.", "47. Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads:", "“1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced.", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "48. The applicants complained under Article 10 of the Convention that the Supreme Court's decision of 1 July 2003 had entailed an interference with their right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads :", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "49. The Government contested that argument.", "A. Admissibility", "50. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Preliminary issue regarding the scope of the case", "51. The Government pointed out that the Court was bound to rely on the facts as established by the national courts and should accordingly base its assessment and scrutiny on the same facts as established by the Supreme Court, which were the same as those found by the majority of the High Court. This related to the fact that the article had given no source for the accusation, and therefore the newspaper could not claim to have transmitted a defamatory accusation which had been made by others.", "52. The applicants contested the Government's contention, which in their view was aimed at excluding evidence demonstrating that the newspaper's coverage had, in essence, been accurate. The applicants referred here to certain new evidence which they had unsuccessfully sought to adduce before the Supreme Court: notably declarations by the journalist, Mr Wilhelmsen, the director of the Tjøme Municipality's Planning and Building Department, Mr Sæter, and the mayor, Mr Tandberg, dated 28 January, 8 May and 13 May 2003 respectively, about the identity of the journalist's source (s) and the contents of the information provided by the source (s), plus an additional declaration made by Mr Sæter on an unintelligible date in 2003. On account of the national rules, the appeal to the Supreme Court had been examined in accordance with the rules of the Code of Criminal Procedure, with the result that the Supreme Court was bound to base its decision on the same facts as the High Court.", "53. The Court emphasises that a complaint is characterised by the facts alleged in it, not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p.13, § 29). Within the scope of the case, as delimited by the decision on the admissibility of the application, the Court has full jurisdiction, which encompasses any issue of fact or law that arises during the proceedings before it (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I, p. 223, § § 43 and 44 ).", "54. However, the new evidence in question comprised statements by sources who were anonymous during the proceedings before the High Court but who thereafter waived their anonymity and gave written statements for submission to the Supreme Court. Under the relevant national procedural rules the Supreme Court was prevented from relying on new evidence, unlike the City Court and the High Court, which had full jurisdiction to assess the evidence. This limitation on the Supreme Court's jurisdiction must have been foreseeable for the applicants. Moreover, the new evidence significantly altered the substance of their complaint under Article 10 of the Convention. As a result the national courts were not given a proper opportunity to review from the angle of Article 10 of the Convention the subject matter of the applicants'complaint as altered by this new evidence, which is the purpose of the requirement of exhaustion of domestic remedies in Article 35 § 1 of the Convention. This provision also requires that the complaints intended to be made subsequently at Strasbourg must first be made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention must be used (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996 ‑ IV, p. 1210, § 66 ). Therefore, the Court considers that the witness statements in question fall outside the scope of its review and will accordingly not rely on them. If the Court were to accept such new evidence, it could lead to the unreasonable consequences of making it a forum for reopening of national proceedings. Such a function would not be consistent with its subsidiary role in the Convention protection system.", "C. Merits", "55. The Court considers that the impugned measure constituted an “interference by [a] public authority” with the applicants'right to freedom of expression as guaranteed under the first paragraph of Article 10, but that the interference was “prescribed by law”, namely Articles 247, 431 and 253 of the Penal Code and section 3-6 of the Damage Compensation Act 1969 (see paragraphs 4 1 to 4 7 above), and pursued the legitimate aim of protecting “the reputation or rights of others”. It thus fulfilled two of the three conditions of justification envisaged by the second paragraph of Article 10.", "The dispute in the present case relates to the third condition – whether the interference was “necessary in a democratic society”.", "1. Arguments of those appearing before the Court", "( a ) The applicants", "56. The applicants disputed the necessity of the measures ordered by the High Court and upheld on appeal by the Supreme Court, which in their view violated Article 10 of the Convention.", "57. Firstly, they submitted that no allegation had been adopted by Tønsbergs Blad. In the article they had emphasised that the presentation was “[a] ccording to the understanding of Tønsbergs Blad ”. It was apparent from the article that the information provided emanated from officials within the Municipality. For the most part, the newspaper was quoting from or directly referring to interviews with named officials.", "58. Secondly, the statements contained in the article had not been presented as undisputable facts. On the contrary, the newspaper had expressed numerous reservations, after which no conclusion had been drawn in respect of the Rygh family's compliance with the permanent residence requirements. The Supreme Court had failed to take this into account. In essence, the impugned statements implied that Mr Rygh was under suspicion for potentially not complying with the permanent residence requirements, a wording used in the article.", "59. The national courts, however, had derived another interpretation, which from the applicants'point of view was stricter. The Supreme Court had established that Mr Rygh had “found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons who the Municipality considered to have breached the residence requirements ” ( see paragraph 36 of the Supreme Court's judgment, quoted in paragraph 3 9 above ). Subsequently, the Supreme Court had “tightened up” its interpretation by attributing to the applicants a more detailed knowledge of the form of procedure followed by the Municipality, as it stated:", "“ ... the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed. ” ( see paragraph 48 of the Supreme Court's judgment quoted in paragraph 39 above )", "60. The Supreme Court had then made a distinction between being on a tip -off list and being on a list “that the Municipality has decided, after processing and consideration, to refer to the County Governor ” ( see paragraph 48 of the Supreme Court's judgment quoted in paragraph 3 9 above ). Hence, the Supreme Court had found that the applicants had anticipated the form of procedure followed by the Municipality and thereby reinforced the allegation against Mr Rygh. This assessment endorsed the Supreme Court's standpoint that “ [a] n accusation of a contravention of the law of this nature must be regarded as defamatory” ( see paragraph 37 of the Supreme Court's judgment in paragraph 3 9 above ). In essence, according to the Supreme Court, the applicants had accused Mr Rygh of breaking the law. This meaning had been derived by the Supreme Court, however, not from the express terms but from the general tenor of the article. This interpretation had been in contradiction to the numerous reservations expressed in the article.", "61. Moreover, the applicants argued, the impugned statements should be read in conjunction with the articles of 30 June and 8 August 2000, with the result that all suspicions against Mr Rygh should be eliminated.", "62. In the applicants'opinion, the ordinary reader would expect a follow-up to the article of 8 June 2000, particularly in the light of the information provided that Mr Rygh would have to come forward with an explanation. This was, in itself, a valid argument for extending the period of time against which the impugned statements should be assessed. As the article of 30 June 2000 was a natural and predictable follow-up to the first article, this should also be taken into consideration in terms of interpretation.", "63. Furthermore, the article of 8 June 2000 had been entirely accurate in its presentation of the case. While it had been evident to the City Court that the article in question had been based on interviews with director of the Planning and Building Department and other officials within the Municipality, the High Court, however, had attached particular importance to the fact that no “further investigation” of the Rygh property had been conducted by the Municipality. However, the journalist had not been informed of this at the crucial time. The Supreme Court had based itself heavily upon the High Court's assessment and had pointed out that no source for the impugned allegation had been presented in the article itself.", "64. Should the Court take the Supreme Court's interpretation as the point of departure, the applicants still contended that Tønsbergs Blad's coverage was, in essence, correct. Should the Court instead fully endorse the Supreme Court's interpretation, the applicants contended that the inaccuracies in the newspaper article were, at the most, marginal. In this connection they relied on Mr Justice Rieber-Mohn's dissenting opinion ( see paragraph 60 of the Supreme Court's judgment, quoted in paragraph 40 above ): “ Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000.”", "65. When the story had been published, it was based on information from the director of the Planning and Building Department that the list was due for dispatch. The director of the Building Department had not clarified in the interview of 7 June 2000 that the list had gone without being processed since October 1999, or that the Ryghs'property had not been specifically examined. No one had questioned that the mayor and the director of the Tjøme Municipality's Planning and Building Department were reliable witnesses. In the applicants'opinion, it was therefore not relevant for the majority of the Supreme Court to have elaborated on the reliability of anonymous and potentially unreliable sources ( see paragraph 47 of the Supreme Court's judgment, quoted in paragraph 3 8 above ).", "66. The applicants stressed that, in the present case, the interference did not correspond to a pressing social need. The allegation had not been a particularly defamatory one and had, in fact, been dispelled in the following articles. No one could even suspect Mr Rygh, on the basis of Tønsbergs Blad's article of 8 June 2000, of any reprehensible conduct in this regard. He could easily and immediately have corrected the conception formed by the Municipality simply by providing information on the matter, for example by submitting the legal opinion he had obtained.", "67. The articles had indeed focused on a matter of great public interest, after which public debate had been reinforced, resulting in a public discussion of the loopholes in the permanent residence requirements and the need for an amendment of the Concession Act.", "68. The applicants acknowledged that the protection of a person's reputation was a legitimate aim to pursue. However, given that there had been minimal, if any, effect on Mr Rygh's reputation in the present case, the interference with the applicants'rights was disproportionate. By declaring the impugned statements null and void, the Supreme Court had significantly worsened the operating conditions of local newspapers by extensively limiting the use of reliable anonymous sources and the use of examples to illustrate matters of public interest.", "69. Denying the press any latitude in daily news coverage would in itself have a chilling effect. In addition to declaring the impugned statements null and void, the Supreme Court had ordered the applicants to pay Mr Rygh compensation for non-pecuniary damage in the amount of NOK 50,000 and to reimburse his expenses in the amount of NOK 673,829. This part of the interference was under no circumstances proportionate to the aim pursued.", "70. In the applicants'opinion, by omitting to take into account a number of significant arguments in its consideration of the case, the Supreme Court had failed to strike a proper balance and to adequately assess the necessity of the interference with their freedom of expression as protected by Article 10 of the Convention.", "( b ) The Government", "71. The Government maintained that the interference complained of clearly corresponded to a pressing social need. While the freedom of expression was a fundamental right in a democratic society, it was necessary to interfere with the exercise of that freedom where, as in the present case, it was abused by directing false and harmful accusations against a private individual. The national authorities had, inter alia under Article 12 of the Universal Declaration of Human Rights and Article 17 of the UN Covenant on Civil and Political Rights, an obligation to protect private individuals against unlawful attacks on their reputation. This obligation must be given priority when the interference, as in the present case, had no chilling effect on political debate.", "72. The Government emphasised that the Supreme Court's judgment had been based on a correct interpretation of the allegations in question, in conformity with the principles established by the European Court in its case-law. The Supreme Court had correctly concluded that the allegations had had an adverse effect on Mr Rygh's reputation, as described in the High Court's judgment, and were defamatory. Since the national courts were better equipped than the European Court to assess the perceived meaning and effects of certain statements, these were issues that should be left to the assessment of the national courts. There was no reason for the Court to re-examine the Norwegian courts'findings on this point.", "73. Nor was it for the Court to carry out a review of the High Court's finding, made on the basis of the immediate evidence presented to it in open court, that it was proven that the allegations were demonstrably incorrect. The Court should take as a premise that the Tjøme Municipality had never processed the list and that the statements made in the article were therefore incorrect.", "74. As found by the Supreme Court, the allegations in question had been based on an anonymous source. No other sources supported the conclusion that Mr Rygh's name had been mentioned on a list that in the immediate future was to be sent to the County Governor for decision. The Supreme Court had correctly drawn a parallel to situations where allegations were put forward without any source.", "75. Moreover, the applicants had taken no precautions before publishing the article. The Supreme Court had correctly concluded that the applicants had failed to act in good faith when publishing the article. As followed directly from the Concession Act, persons in Mr Rygh's situation were exempted from the permanent residence requirements. Any possible misunderstanding in this respect could easily have been avoided by simply reading the Act. Despite having not worked under any time constraints, the newspaper had failed to take sufficient steps to fulfil its obligation to verify the truth of the factual allegation in question. The fact that Mr Rygh, on being contacted by the newspaper before publishing the article, had stated that the allegation must be due to a misunderstanding should have resulted in a stricter duty of care for the newspaper. The journalists'work had failed to meet the relevant standards of journalistic ethics.", "76. As the applicants had made clear in their complaint, the implementation of the permanent residence requirements had over the last few years been the subject of great interest in the municipalities of Vestfold, and in other parts of Norway as well. Tønsbergs Blad was admittedly, as a regional newspaper, an important forum for discussions of topical subjects such as the present one. However, this had no bearing on the issue here. Tønsbergs Blad could perfectly well have attracted the public interest by publishing the article without mentioning Mr Rygh by name and printing his picture. In spite of this, Tønsbergs Blad had still, without any factual foundation, exposed him to public contempt as a “ residence sinner ”. The interference in the present case could not in any possible way have had a so-called chilling effect on the public debate on permanent residence regulations.", "77. The Government further stressed that, for the purposes of the present case, Mr Rygh ought to be regarded as a private individual. Neither before the publication of the article, nor at any other material time, had he participated in any way in the public debate on the subject of permanent residence regulations or exposed himself to public comment or criticism. His public exposure had been limited to his positions as Executive Vice-President, head of financial investments, and a member of the Executive Board of the Norwegian company Orkla ASA. In no way had the allegations in question been capable of contributing to a debate in a democratic society. The allegations had exclusively concerned Mr Rygh's behaviour as a private person and had no connection whatsoever with his position as a business executive. Mr Rygh should be regarded as a private individual in relation to the statements, to be assessed within the stricter limits of acceptable criticism.", "78. The articles published on 30 June and 8 August 2000 were of no particular importance. They had been published a relatively long time after the disputed allegations had been made. The impression created, that the Tjøme Municipality considered Mr Rygh to have breached the permanent residence requirements, had by that time been firmly established. Apparently, the applicants had not tried to correct the false accusations set forth in the first article. On the contrary, the subsequent articles had given the impression that Mr Rygh had deliberately utilised a legal loophole.", "79. In the Government's opinion, private individuals like Mr Rygh must be entitled to protection against false accusations of this kind, especially where the accusations had no or only limited public interest. Interference with press freedom as in the present case would have no chilling effect on the public and political debate.", "80. In the light of the above, the Government contended that the respective interests of the applicants and the public in imparting and receiving false information regarding Mr Rygh's observance of the permanent residence requirements were not such as to outweigh the considerations relied on by the Supreme Court, which must be considered relevant and sufficient for the purposes of Article 10 § 2. Moreover, in finding the allegations in question defamatory and declaring them null and void, the Norwegian Supreme Court could not be said to have placed an excessive or unreasonable burden on the applicants. Regard should be had to the fact that the interference had solely concerned the particular allegations in question and had had no chilling effect on the public debate on the issue of permanent residence regulations. The Supreme Court had struck a fair balance between the fundamental right of freedom of expression, on the one hand, and the legitimate interests of a democratic State in ensuring that the rights and reputation of others be protected, on the other hand. It follows from this that the interference had been proportionate to the legitimate aim pursued. The disputed interference had therefore been necessary for the purposes of Article 10 § 2 of the Convention.", "2. Assessment by the Court", "( a ) General principles", "81. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.", "82. One factor of particular importance for the Court's determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23, § 31; and De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233 ‑ 34, § 37). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1 995, Series A no. 313, p. 19, § 38). In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p. 500, § 39).", "83. In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).", "( b ) Application of these principles", "84. The Court observes from the outset that the disputed statements consisted of two introductory passages on the front page and on page 3 of the Tønsbergs Blad's issue of 8 June 2000, which the High Court, whose conclusion was upheld by the Supreme Court, declared null and void under Article 253 of the Penal Code (see paragraph 36 above) :", "“ Permanent residence requirements : In the worst - case scenario [ H.K. ] may be forced to sell her property at Hvasser [an island next to Tjøme ]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. ”", "“ ... Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.”", "85. According to the findings of the Supreme Court, at the heart of the impugned statements there was an allegation that Mr Rygh's name appeared on a list drawn up by the Municipality of persons whom the Municipality considered to have breached the permanent residence requirements. That allegation was false and constituted a public moral condemnation of Mr Rygh's conduct that was defamatory within the meaning of Article 247 of the Penal Code (see paragraphs 36 to 40 of the Supreme Court's judgment, quoted in paragraph 39 above). The Court finds no reason to doubt that the reasons relied on by the Supreme Court were relevant to the legitimate aim of protecting the rights and reputation of Mr Rygh.", "86. As to the further question whether those reasons were sufficient for the purposes of Article 10, the Court must take into account the overall background against which the statements were made. In this regard it notes that the purpose of applying permanent residence requirements under section 5(3) of the Concession Act to all - year residences in the Tjøme Municipality was to prevent private property used for permanent residence from being transformed into holiday homes and thus to ease the pressure on the local community. There was also a wish to avoid depopulation of the Municipality during off-season periods (see paragraph 8 above).", "87. The Court is not convinced by the Government's argument that the portrayal of Mr Rygh in the article hardly corresponded to a public interest worthy of protection under Article 10 of the Convention. Whether or not a publication concerns an issue of public concern should depend on a broader assessment of the subject matter and the context of the publication. The newspaper article of 8 June 2000 had its background in concerns by local inhabitants and politicians about the failure of certain property owners within the Municipality to comply with applicable residence requirements. There was also a perception that affluent persons had found ways of circumventing or exploiting loopholes in the rules. That had led the applicant newspaper to highlight the coverage by focusing on two prominent and well-known personalities, one, Mr Rygh, from the world of industry and the other, Mrs H.K., from the world of culture. The Court does not find that the article was intended to damage Mr Rygh's reputation (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 63, ECHR 1999 ‑ III). Rather, the purpose was to illustrate a problem that the public had an interest in being informed about. His name ( like that of Mrs H.K.) had featured on the provisional tip - off list drawn up by the Municipality of names of persons suspected by local inhabitants and politicians of having breached the residence requirements. While it is true that the information published about Mr Rygh did not directly address his role as an industrial leader, the Court is unable to agree with the Government's suggestion that it related exclusively to his private life. The Court shares the opinion of the dissenting judge of the Supreme Court, Mr Justice Rieber-Mohn (see paragraph 40 above), that a possible failure of a public figure to observe laws and regulations aimed at protecting serious public interests, even in the private sphere, may in certain circumstances constitute a matter of legitimate public interest (see Fressoz and Roire, cited above, § 50 ). It also agrees with the dissenting judge that such circumstances obtained in the present case.", "88. The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Jersild, cited above, pp. 25-26, § 35; and Bergens Tidende and Others v. Norway, no. 26132/95, § 52, ECHR 2000 ‑ IV ).", "89. The Court observes in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Goodwin, cited above, p. 500, § 39; Fressoz and Roire cited above, § 54-I; Bladet Tromsø and Stensaas, cited above, § 65; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004 ‑ XI ). Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These “duties and responsibilities” are significant when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002-III; Bladet Tromsø and Stensaas, cited above, § 66; and Pedersen and Baadsgaard, cited above, § 78 ).", "90. The Court will consider the newspaper report as a whole and have particular regard to the words used in the disputed parts of the report and the context in which they were published, as well as the manner in which it was prepared (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV ). The Court must examine whether the applicants acted in good faith and complied with the ordinary journalistic obligation to verify a factual allegation. This obligation required that they should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis has to be ( see Pedersen and Baadsgaard, cited above, § 78).", "91. First, the Court observes that the impugned assertions consisted of factual statements, not value judgments, to the effect that Mr Rygh's name was on the Municipality's list of persons whom it considered to be in breach of the residence requirements. This was a bare allegation presented without any criticism and only with a suggestion that Mr Rygh might be forced to sell his property. A breach of the residence requirements was not a criminal offence, only a regulatory matter. Both the City Court and the High Court considered that, locally, the conduct of which Mr Rygh was accused was likely to be viewed by many as being reprehensible from a moral and social point of view but that the accusation had not been of the most defamatory kind.", "92. It should further be noted that the disputed allegations were presented with precautionary qualifications (emphasis added here) : “ According to the understanding of Tønsbergs Blad ”; “The list includes properties whose use is thought not to be in conformity with the permanent residence requirements ”; “ may be forced to sell”. The headline on the front page indicates that Mr Rygh will have to explain himself (see paragraph 12 above). In the article inside the newspaper on page 3 there is a description of the procedure indicating that the Municipality will report to the County Governor properties suspected of not complying with the residence requirements and that it will then be for the County Governor to confront the owners. It should, moreover, be noted that the article inside the newspaper highlighted Mr Rygh's own comment that the mention of his name on the list must be due to a “ misunderstanding ” (see paragraph 15 above). In addition, at the bottom of the same page, the newspaper published another article entitled “A two - edged sword”, reproducing comments by local politicians giving diverging views on the public need to maintain residence requirements in the Municipality (see paragraph 16 above). Even though the news item was presented in a somewhat sensationalist style, the overall impression given by the newspaper report was that, rather than inviting the reader to reach any foregone conclusion about any failure on Mr Rygh's part, it raised question marks with respect to both whether he had breached the said requirements and whether those requirements should be maintained, modified or repealed.", "93. In the light of the above, the Court does not find that the impugned accusation was capable of causing such injury to personal reputation as could weigh heavily in the balancing exercise to be carried out under the necessity test in Article 10 § 2 of the Convention.", "94. Nor does the Court find that the news coverage was presented without proper balance. In addition to the above-mentioned qualifications and counterbalancing elements contained in the 8 June 2000 issue, regard should be had to the fact that, on 30 June 2000, the day after the journalist was informed about the exchange of correspondence between Mr Rygh and the Municipality's Chief Executive Officer, Mr Hansø, the newspaper published a follow-up article based on an interview by the journalist with Mr Hansø. The article made it clear that Mr Rygh's name had been removed from the Municipality's list and stated the reasons why the residence requirements did not apply to the property used by him. This must have considerably reduced any injury to Mr Rygh's reputation caused by the report of 8 June 2000. In the article of 8 August 2000 the newspaper, referring to its previous news reports of 8 and 30 June 2000, further emphasised these clarifications. The Court is unable to share the Supreme Court's view that the reports of 30 June and 8 August 2000, although published some time after the 8 June 2000 issue, were of negligible significance for the newspaper coverage seen as a whole (see paragraph 51 of the Supreme Court's judgment quoted in paragraph 39 above). In this connection, the Court reiterates that news reporting based on interviews constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog”. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists (see Jersild, cited above, pp. 23-25, §§ 31 and 34; Bladet Tromsø and Stensaas, cited above, § 63; and Bergens Tidende and Others, cited above, § 57 ).", "95. As to the further question whether the applicants acted in good faith and complied with the ordinary journalistic obligation to verify a factual allegation, the Court notes that, according to the High Court's assessment of the evidence, on which the Supreme Court relied, the defamatory accusation against Mr Rygh had originated from an anonymous source. The High Court reasoned that, in view of the impossibility for the courts to verify the extent to which the journalist had acted with due care in relying on the anonymous source, the defamatory allegation ought to be regarded as the newspaper's own. Similarly, the Supreme Court proceeded from the premise that in the use of anonymous sources a stricter duty of care applied and that it would largely be the risk of the newspaper if factual information originating from such sources were false (see paragraphs 43 and 47 of the Supreme Court's judgment quoted in paragraph 39 above). The Court accepts this reasoning and finds no special grounds for dispensing the newspaper from its ordinary obligation to verify factual statements that are defamatory of private individuals.", "96. In respect of the question whether the journalist had acted in good faith, the following should, however, be noted. The journalist had worked on the item over a considerable period, since the autumn of 1999. He was in possession of the tip-off list (entitled “Properties which should be verified in relation to the residence requirements. (Not public)”). This was an official document drawn up by the municipal administration on 11 October 1999 and presented the following day to the Municipal Standing Committee at a meeting open to the public. From the autumn of 1999 he made a number of enquiries to the Municipality on the subject and on 7 June 2000 he interviewed the director of the Municipality's Planning and Building Department, Mr Sæter (see paragraphs 9 to 11 above).", "97. It does not transpire from the interview with Mr Sæter that Mr Rygh's name was on the list in question and that the Municipality held the opinion that he had breached the residence requirements. However, at the High Court's hearing, both the director of the Municipality's Planning and Building Department and the mayor testified that they, at the time, had been of the view that Mr Rygh was in breach of the residence requirements (see paragraph 33 above). Thus, it was shown that two presumably representative and reliable officials within the Municipality assuming key roles in the handling of the residence matter in substance held the same opinion as that attributed to the Municipality as a whole in the impugned passages when they were published on 8 June 2000.", "98. It was an undisputed fact that Mr Rygh did not live permanently on the property at issue. The only question at the time of the publication of the 8 June 2000 issue was whether the residence requirements applied at all to the property used by him. As already mentioned, key figures in the Municipality believed that they did.", "99. In the light of the above, the Court finds there was substantial evidence to corroborate the newspaper's contention on 8 June 2000 that the Municipality at the time held the view that Mr Rygh was in breach of the relevant residence requirements. This is an issue that should be determined in the light of the situation as it presented itself to Tønsberg Blad then, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, § 66 ), offered by the revelations made subsequently that Mr Rygh's name did not actually appear on any list to be transmitted to the County Governor as described in the interview with the director of the Planning and Building Department. Although the High Court stressed in its judgment that the latter had been aware when talking to the journalist on 7 June 2000 that he had to carry out further checks, there is nothing to indicate that this awareness had been imparted to the journalist or that the latter had knowledge of it from any other source by the time of publication. Thus, whether or not at the time of publication the director of the Planning and Building Department and the mayor held an informed opinion cannot be decisive for the truth of the newspaper's allegation about the substance of the Municipality's opinion at that time.", "100. It was only on 29 June 2000, when the journalist was informed about the exchanges between Mr Rygh and the Municipality's Chief Executive Officer, that the Municipality made the journalist aware of its position as to how the provisions of the Concession Act ought to be interpreted and applied in relation to properties such as that used by Mr Rygh. When contacted by the journalist before publication of the disputed newspaper report, Mr Rygh had not offered any comments beyond stating that there must have been a misunderstanding as to the inclusion of his name on the list to be transmitted to the County Governor (see paragraph 15 above).", "101. In these circumstances, the journalist cannot in the Court's view be blamed for not having ascertained for himself, before reporting on the Municipality's opinion on 8 June 2000, whether the residence requirements were applicable to the property used by Mr Rygh. On the contrary, having regard to the relatively minor nature and limited degree of the defamation at issue and the important public interests involved, the Court is satisfied that the newspaper took sufficient steps to verify the truth of the disputed allegation and acted in good faith.", "102. Nonetheless, the applicants had to defend their cause in judicial defamation proceedings pursued at three judicial levels. The outcome was that the statements were declared null and void and the applicants were ordered to pay the plaintiff NOK 50,000 in compensation for non-pecuniary damage and to reimburse him NOK 673,829 for his legal expenses (see paragraphs 36 and 38 above), in addition to bearing their own costs. In the circumstances, the proceedings resulted in an excessive and disproportionate burden being placed on the applicants, which was capable of having a chilling effect on press freedom in the respondent State.", "103. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was “necessary in a democratic society”. The Court considers that there was no reasonable relationship of proportionality between the restrictions placed by the measures applied by the Supreme Court on the applicants'right to freedom of expression and the legitimate aim pursued. Accordingly, there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "104. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "105. The applicants did not seek an award for non-pecuniary damage but requested compensation for the pecuniary damage which they had suffered as a result of the Supreme Court's judgment of 1 July 2003 ordering them to pay to Mr Rygh NOK 50,000 in compensation for non-pecuniary damage and NOK 673,829 for his costs and expenses (corresponding altogether to approximately 90,000 euros (EUR ) ).", "106. The Government did not offer any comment beyond stating that the finding of a violation constituted the primary remedy under the Convention.", "107. The Court is satisfied that there is a causal link between the damage claimed and the violation of the Convention it has found, and awards the applicants EUR 90,000 under this head.", "B. Costs and expenses", "108. The applicants also claimed NOK 1,082,033 ( corresponding approximately to EUR 135,000 ) for the costs and expenses incurred before the domestic courts and NOK 896,928 (approximately EUR 112,000, not inclusive of value - added tax – “VAT”) for those incurred before the Court.", "109. The Government did not offer any comments on the above beyond stating that they had no reason to doubt the amounts.", "110. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the above criteria and the information in its possession, notably the absence of details as to the number of hours worked and the rate charged per hour, the Court is not convinced that all the costs incurred in the Strasbourg proceedings were necessarily incurred and were reasonable as to quantum. Making an assessment on an equitable basis, the Court awards the applicants EUR 35 ,000 for the proceedings before it (inclusive of VAT). The claim for costs and expenses in the domestic proceedings should be awarded in its entirety.", "C. Interest incurred during the proceedings before the national courts and the Court", "111. The applicants in addition claimed various sums totalling NOK 256,11 5 (corresponding approximately to EUR 32 ,000) in simple interest, at estimated average rates ( 4% ) applied by domestic commercial banks at the material time, on the sums they had paid in respect of damages and domestic costs and expenses, covering the period until 31 December 2006.", "112. The Government did not offer any comments on the above beyond stating that they had no reason to doubt the amounts.", "113. The Court finds that some pecuniary loss must have been occasioned by reason of the periods that elapsed from the time when the various sums were paid and the costs incurred until the Court's present award of just satisfaction (see, for example, Bladet Tromsø and Stensaas, cited above, § 83; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 65, ECHR 1999 ‑ VIII; and Bergens Tidende and Others, cited above, § 70). Making its assessment on an equitable basis, it awards the applicants EUR 20,000 with respect to their claim under this head.", "D. Default interest", "114. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant, a limited liability company with its seat in Vienna, is the owner of the daily newspaper Der Standard.", "6. In its issue of 14 May 2004 Der Standard published an article in the domestic politics section under the heading “ Gossip mongering ” ( “ Kolportiert ” ). The article, which was entitled “ A society rumour ” ( “ Ein bürgerliches Gerücht ” ) commented on certain rumours relating to the marriage of Mr Klestil, the then Federal President. The article also appeared on the website of Der Standard. It read as follows:", "“ If the stories circulating between the outlying district of Döbling and the city centre are to be believed, there is only one topic of conversation at the moment among the so ‑ called upper crust of Viennese society: the marriage of the departing presidential couple Thomas Klestil and Margot Klestil-Löffler [bold print in the original]. Rumour has it that not only is he about to leave office, but she is about to leave him. The latter claim has of course set tongues wagging furiously in bourgeois – and not-so-bourgeois – circles. People here like nothing better than to be able to express outrage about one of their own.", "In addition to the allegedly less-than-blissful domestic situation on the Hohe Warte [the Federal President ’ s residence], there has been persistent gossip recently about the supposedly close ties between the First Lady, who is her husband ’ s junior by 22 years, and other political figures. Head of the FPÖ parliamentary group Herbert Scheibner [bold print in the original], for instance, is reported to be close to her (Scheibner has accompanied the presidential couple on a number of foreign trips). Ms Löffler is also said to be well acquainted with the husband of the Canadian ambassador (unsurprisingly, given her post as head of the American department of the Foreign Affairs Ministry).", "The fact that the President ’ s wife took a few days off recently to organise the move from the official residence to the couple ’ s newly renovated home in Hietzing fuelled further speculation. So much so, in fact, that Klestil – never squeamish about putting his emotions on display – had the following pre-emptive statement published in his information bulletin, News [an Austrian weekly] : ‘ Rumours of a separation are nothing but idle gossip ’ he said. He added: As of 8 July we will be embarking on a new phase of our life together. Any assertions to the contrary are untrue.", "Be that as it may, the people are concerned for the well-being of their President. Apparently, the public information desk of the President ’ s Office has recently had more callers than ever before enquiring about the state of the President ’ s marriage. And more than a few of the callers made their enquiries in the ultra- refined tones of Schönbrunn. ”", "7. The article was accompanied by a picture of Mr Klestil and Mrs Klestil-Löffler, looking in different directions.", "A. The proceedings brought by Mr Klestil and Mrs Klestil-Löffler", "8. On 18 May 2004 Mr Klestil and Mrs Klestil-Löffler brought proceedings under sections 6 and 7 of the Media Act ( Mediengesetz ) against the applicant company, claiming that the article published in Der Standard of 14 May 2004 reported on their marriage and family life and thus interfered with the strictly personal sphere of their lives.", "9. By judgment of 15 June 2004 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) ordered the applicant company to pay compensation of 5,000 euros (EUR) to the first claimant, Mr Klestil, and EUR 7,000 to the second claimant, Mrs Klestil-Löffler. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimants ’ costs.", "10. The Regional Court, referring to section 7 of the Media Act, held that the applicant company had reported on the strictly personal sphere of the claimants ’ lives in a manner that was likely to undermine them in public. It analysed the contents of the impugned article as alleging, on the one hand, that Mrs Klestil-Löffler intended to divorce and, on the other hand, that she had close contacts with two men, thus describing her as a double adulteress and Mr Klestil as a deceived husband. In reply to the applicant company ’ s defence that the article merely reported on a rumour, the Regional Court noted that even the dissemination of a rumour could breach section 7 of the Media Act, if it conveyed the impression that there was some truth in it.", "11. As to the applicant company ’ s request to take evidence in order to show that the rumour had actually been spread at the time, the court noted that in cases concerning an infringement of the strictly personal sphere of a person ’ s life, section 7 § 2 of the Media Act excluded the proof of truth ( Wahrheitsbeweis ), unless the statement at issue was directly related to public life. Such a direct link would exist, for instance, where a publication reported on the state of health of the Federal President which might prevent him from exercising his functions. However, the state of his marriage did not have any bearing on his capacity to exercise his functions nor did it have any other link with public life.", "12. In assessing the amount of compensation, the Regional Court had regard to the fact that Der Standard was a widely read newspaper and to the considerable degree of insult suffered by the claimants. In addition it noted that it was highly uncommon in Austria to report on (true or untrue) details of the private lives of politicians. Having regard to the above considerations and the need to deter other media from making similar publications, a relatively large amount of compensation appeared justified. The difference in the sums awarded was to the fact that the second claimant was described as a double adulteress, while the first claimant was “merely” depicted as a deceived husband.", "13. The applicant company appealed. As a point of law it submitted that the Regional Court had wrongly refused its request for the taking of evidence. In its view the publication was directly related to public life within the meaning of section 7 § 2 of the Media Act. The claimants, being public figures, had made their private life part of their “ marketing strategy ”. Like no other presidential couple before, they had kept the public informed about their marriage, starting with the first claimant ’ s divorce from his former wife and his remarriage, to the second claimant. Moreover, the first claimant had relied heavily on family values during his first electoral campaign. He therefore had to accept that the public had an interest in being informed about his private life.", "14. As regards points of fact, the applicant company argued that the Regional Court had wrongly assessed the contents of the article at issue. Read in its proper context, the article did not state that Mrs Klestil-Löffler actually intended to divorce and even less that she was an adulteress. On the contrary the article rather aimed at exposing the idle gossip propagated in certain upper-class circles. It clearly pointed to the absurdity of the rumour by explaining that the allegedly close ties of the second claimant with Mr Scheibner and with the husband of the Canadian ambassador had perfectly unsuspicious reasons. Seen in that light, the article did not even relate to the strictly personal sphere of the presidential couple but made fun of the gossip in bourgeois society.", "15. As regards the sentence the applicant company claimed that the compensation awards were excessive.", "16. While the appeal proceedings were pending, Mr Klestil died. By decision of 2 September 2004 the Vienna Regional Criminal Court discontinued the proceedings as regards Mr Klestil. On 9 December 2004 the Vienna Court of Appeal ( Oberlandesgericht ), on an appeal brought by Mr Klestil ’ s estate, quashed the Regional Court ’ s decision.", "17. By a judgment of 20 January 2005 the Vienna Court of Appeal upheld the Regional Court ’ s judgment of 15 June 2004.", "18. It confirmed that in the present case, the proof of truth was excluded by section 7 § 2 of the Media Act. The applicant company ’ s argument that the claimants were public figures and had exposed their private and marital life to the public eye like no other presidential couple before was not convincing. While the first claimant had relied on his family life and on his then marriage in his first campaign some twelve years ago, his marriage with Mrs Klestil-Löffler had not played a role in his second campaign nor otherwise during his second period in office. Moreover, his second and last period in office had been drawing to a close at the time of the publication. In sum, the Regional Court had rightly found that the publication at issue was not directly related to public life. Consequently, it had rightly refused to take the evidence proposed by the applicant company.", "19. There was no basis for the applicant company ’ s assertion that the article was aimed at unveiling the hypocrisy of the so called upper crust of Viennese society or that it described the rumours about the claimants ’ marriage as absurd. The Regional Court had rightly understood the article ’ s contents as conveying rumours about the Federal President ’ s marriage as if there was some truth in them.", "20. Finally, as regards the amounts granted in compensation, the Court of Appeal found that deterring other media from similar publications was not a relevant criterion. Nevertheless the other considerations relied on by the Regional Court justified the compensation awards.", "B. The proceedings brought by Mr Scheibner", "1. Proceedings under the Media Act", "21. On 11 June 2004 Mr Scheibner brought proceedings under sections 6 and 7 of the Media Act against the applicant company in respect of the electronic version of the article, which had been published on the website of Der Standard and in respect of the print version. He alleged that the passage referring to him contained an untrue statement amounting to defamation.", "22. By judgment of 20 July 2004 the Vienna Regional Criminal Court ordered the applicant company to pay EUR 4,000 to Mr Scheibner as compensation for the publication in the printed version of Der Standard and EUR 2,000 as compensation for the publication on the website. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimant ’ s costs.", "23. The court, arguing along the same lines as in its judgment of 15 June 2004 (see paragraphs 10-11 above ), held that the applicant company had reported on the strictly personal sphere of the claimant ’ s life in a manner that was likely to undermine him in public. It analysed the contents of the impugned article as alleging that the claimant, Mr Scheibner, who was a married man, had a close relationship with Mrs Klestil-Löffler and therefore described him as an adulterer. Thus, his strictly personal sphere was affected. However, it found that the publication did not amount to defamation within the meaning of Article 111 of the Criminal Code ( Strafgesetzbuch ).", "24. As to the amount of compensation it considered that the insult as regards Mr Scheibner weighed less heavily than as regards the claimants in the first set of proceedings. In sum, compensation awards of EUR 4,000 as regards the publication in the paper version of Der Standard and EUR 2,000 for the publication on the website, which was less widely read, appeared appropriate.", "25. The applicant company and Mr Scheibner appealed, whereby the applicant company relied on the same grounds as in its appeal in the previous set of proceedings.", "26. On 22 December 2004 the Vienna Court of Appeal dismissed the applicant company ’ s appeal but partly granted Mr Scheibner ’ s appeal. It held that the impugned statement also breached Article 6 of the Media Act, since it fulfilled the objective elements of defamation as defined in Article 111 of the Criminal Code. The claimant was accused of adultery, which even in a liberal society was still considered an unlawful and dishonourable act. It considered however, that this had no influence on the amount of compensation to be paid, which was therefore upheld.", "27. As to the applicant company ’ s appeal, the Court of Appeal again confirmed the Regional Court ’ s reading of the contents of the article. It added that the placement of the article in the domestic politics section and its presentation including the picture of the presidential couple supported this assessment. Furthermore, the appellate court noted that the applicant company had not argued before the Regional Court that the publication was directly related to public life within the meaning of Article 7 § 2 of the Media Act.", "28. In any case, Mr Scheibner, though a public figure, had a right to respect for the strictly personal sphere of his life. Rumours about an alleged relationship between him and the wife of the Federal President had no link with his public functions and responsibilities and did therefore not justify the reporting at issue.", "2. Proceedings under the Civil Code", "29. Once the judgment of the Court of Appeal had become final, Mr Scheibner brought proceedings under the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) requesting an injunction ordering the applicant company to refrain from publishing any statement alleging that he had a relationship with Mrs Klestil-Löffler.", "30. At the hearing of 22 April 2005 before the Vienna Commercial Court ( Handelsgericht ), the applicant company entered into a settlement with Mr Scheibner undertaking to refrain from publishing any such statement. The Commercial Court noted that according to constant case-law, a judgment under section 6 of the Media Act had binding effect in subsequent civil proceedings relating to the same facts. It ordered the applicant company to pay Mr Scheibner ’ s procedural costs.", "31. The Commercial Court ’ s judgment was served on the applicant company ’ s counsel on 25 May 2005. The applicant company did not appeal." ]

[ "II. RELEVANT DOMESTIC LAW", "32. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation ” has been defined in Article 111 of the Criminal Code ( Strafgesetzbuch ), as follows:", "“ ( 1 ) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...", "(2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...", "(3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”", "33. Section 7 of the Media Act provides a claim for damages in cases of interference with the strictly personal sphere of an individual ’ s life. In the version in force at the material time, it read as follows:", "“(1) If the strictly personal sphere of an individual ’ s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 14,535 euros; ...", "(2) The right referred to in paragraph 1 above shall not apply where:", "(i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies;", "(ii) the statements published are true and are directly related to public life;", "(iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or", "(iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "34. The applicant company complained that the courts ’ decision in the proceedings under the Media Act and under the Civil Code violated its right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "35. The Government contested that argument.", "A. Admissibility", "1. The proceedings under the Civil Code", "36. The Court observes that in the proceedings brought by Mr Scheibner under the Civil Code the applicant company entered into a settlement undertaking to refrain from repeating the impugned statement. In a recent case with a similar situation the Court has found that an applicant who entered into such a settlement had accepted the limitation of its right to freedom of expression and renounced the use of available remedies in respect of the complaint. Therefore the applicant company could not claim to be a victim within the meaning of Article 34 of the alleged violation (see Standard Verlags GmbH v. Austria, no. 13071/03, § § 33-34, 2 November 2006). The Court sees no reason to come to another conclusion in the present case. Therefore the complaint has to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.", "2. The proceedings under the Media Act", "37. As far as the complaint relates to the two sets of proceedings under the Media Act, one brought by Mr Klestil and Ms Klestil-Löffler and the other by Mr Scheibner, the Court notes that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "38. The applicant company maintained that the courts had transgressed their margin of appreciation. It contended in particular that all three claimants were public figures. Mr Klestil and Mrs Klestil-Löffler had exposed their private life to the media like no presidential couple before. Mr Scheibner was a leading politician of the Freedom Party. The section “ Gossip mongering ” in which the article at issue had been published provided readers with a look behind the scenes of politics and often contained humorous or satirical contributions. In the applicant company ’ s view the courts had disregarded the satirical nature of the article and its main aim, namely to criticise the attitudes of the so called upper crust of Viennese society which had nothing else to do than to disseminate an absurd rumour about the Federal President ’ s private life. Finally the applicant company claimed that the sanctions imposed on it were disproportionate.", "39. Moreover, the applicant company complained that the courts had refused to take evidence on the existence of a rumour about the presidential couple ’ s divorce proposed by it on the ground that the proof of truth was not available where the strictly personal sphere of a person ’ s private life was concerned.", "40. The Government asserted that in a case like the present one the State had an obligation to strike a fair balance between the right to private and family life, as guaranteed by Article 8, on the one hand and the right to freedom of expression, provided for in Article 10, on the other. A decisive element in striking that balance was to what extent the incriminated text contributed to a debate of public interest. In the present case, the Austrian courts correctly assessed the impugned article as alleging that Ms Klestil ‑ Löffler intended to divorce and as depicting her and Mr Scheibner as adulterers and Mr Klestil as a deceived husband. As all three of them were well-known public figures the limits of acceptable reporting were wider than for private individuals. However, the allegation of adulterous conduct transgressed these limits. There was no public interest in the rumours reported by the article, which had no connection with the public life or political function of any of the persons concerned. This was all the more so, as Mr Klestil ’ s second and last term as Federal President was coming to an end at the time when the article was published.", "41. Furthermore the Government argued that the courts had rightly dismissed the applicant company ’ s defence that the article was of a satirical nature and had merely intended to criticise a certain “upper crust of society” for spreading rumours. Even if one accepted this aim, the actual victims were those whose private life was exposed. In addition the article was counter-productive as it contributed itself to spreading the rumour at issue, while pretending to criticise those who had first launched it.", "2. The Court ’ s assessment", "42. The Court finds that the domestic courts ’ judgments given in the two sets of proceedings under the Media Act constituted an interference with the applicant ’ s right to freedom of expression.", "43. It was not in dispute that that interference was “prescribed by law”, namely by sections 6 and 7 of the Media Act, nor that it served a legitimate aim, namely the protection of the rights and reputation of others. The parties ’ submissions concentrated on whether the interference had been “necessary in a democratic society”.", "44. The Court reiterates the fundamental principles established by its case-law on Article 10 (see, among many others, Éditions Plon v. France, no. 58184/00, §§ 42 and 43, ECHR 2004-IV).", "“42. ... Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’.", "...", "43. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. In particular, it has held that although the press must not overstep certain bounds, for example in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002-V). The national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “ public watchdog ” (see, for example, Bladet Tromsø and Stensaas, cited above, § 59). ... ”", "45. The Court observes that the impugned article dealt with rumours about the claimants ’ private life and, in the case of Mr Klestil and Ms Klestil - Löffler, also their family life.", "46. In this context the Court reiterates that in cases like the present one, in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, in particular, Von Hannover v. Germany, no. 59320/00, § 60, ECHR 2004 ‑ VI; see also Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001 ‑ I ).", "47. Another important factor to be taken into account is whether the person concerned exercised any official functions. The Court has underlined that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions and reporting details of the private life of an individual who does not exercise official functions ( see Von Hannover, cited above, §§ 62-63).", "48. The Court has accepted that the right of the public to be informed can in certain special circumstances even extend to aspects of the private life of public figures, particularly where politicians are concerned ( see Von Hannover, cited above, § 64, with reference to Editions Plon, cited above, § 53 ). However, anyone, even if they are known to the general public, must be able to enjoy a “ legitimate expectation ” of protection of and respect for their private life ( see Von Hannover, cited above, § 69).", "49. In the present case, it is not in dispute that all three claimants in the proceedings under the Media Act were public figures. At the time of publication of the impugned article, Mr Klestil was the Federal President of Austria, Mrs Klestil-Loeffler, his wife, was herself a high-ranking official at the Foreign Ministry and Mr Scheibner was a leading politician of the Freedom Party. The parties ’ opinions differ in particular as to whether the article made any contribution to a debate of general interest.", "50. The Court observes in this context that section 7 of the Media Act protects the strictly personal sphere of any person ’ s life against being discussed or portrayed in a way liable to undermine him or her in public, except where the statements published are true and directly related to public life.", "51. In applying section 7 of the Media Act in the present case, the domestic courts ordered the applicant company to pay compensation to the claimants for violating their strictly personal sphere. They found that the impugned article had spread rumours about the presidential couple ’ s private life, alleging that Ms Klestil-Loeffler intended to divorce and insinuating that Mr Scheibner possibly had an adulterous relationship with Ms Klestil-Löffler. They dismissed the applicant company ’ s argument that the article was related to public life. In that respect, they distinguished a politician ’ s alleged marital problems from his or her state of health which, though belonging to the personal sphere, can have a bearing on the exercise of his or her functions. They added that the presidential couple ’ s private life had not played a role during his second term in office. In respect of Mr Scheibner they found that rumours about an alleged relationship between him and the First Lady did not have any link with his public functions and responsibilities. Consequently, since Article 7 of the Media Act prohibits reporting on a person ’ s strictly personal sphere in absolute terms if there is no direct link with public life, the courts refused to take evidence on whether the rumours at issue actually existed at the time.", "52. The Court finds that the reasons given by the Austrian courts were “relevant” and “sufficient” to justify the interference. It observes that the courts fully recognised that the present case involved a conflict between the right to impart ideas and the right of others to protection of their private life. It cannot find that they failed properly to balance the various interests concerned. In particular the courts duly considered the claimants ’ status as public figures but found that the article at issue failed to contribute to any debate of general interest. They made a convincing distinction between information concerning the health of a politician which may in certain circumstances be a issue of public concern (see, in particular, Editions Plon, cited above, § 53) and idle gossip about the state of his or her marriage or alleged extra-marital relationships. The Court agrees that the latter does not contribute to any public debate in respect of which the press has to fulfil its role of “public watchdog”, but merely serves to satisfy the curiosity of a certain readership (see, mutatis mutandis, Von Hannover, cited above, § 65).", "53. As far as the applicant company complains that it was not allowed to prove that such rumours as reported by the article were circulating at the time, the Court observes that while reporting on true facts about a politician ’ s or other public person ’ s private life may be admissible in certain circumstances, even persons known to the public have a legitimate expectation of protection of and respect for their private life. The Court notes that at no time did the applicant company allege that the rumours were true. However, even public figures may legitimately expect to be protected against the propagation of unfounded rumours relating to intimate aspects of their private life.", "54. Having regard to these considerations, the Court finds the domestic courts did not transgress their margin of appreciation when interfering with the applicant company ’ s right to freedom of expression.", "55. Furthermore the Court considers that the measures imposed on the applicant company, namely the order to pay compensation to the claimants and to publish the judgments were not disproportionate to the legitimate aim. In sum, the interference with the applicant company ’ s right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation and rights of others within the meaning of Article 10 § 2 of the Convention.", "56. There has consequently been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1956 and 1946 respectively. The first applicant lives in Łόdź.", "6. The first applicant owns a publishing house named “ Westa Druk ” which publishes a weekly magazine, Angora, and its supplement for children, Angorka. The second applicant was the editor in chief of the magazine.", "7. On 16 May 1999 Angorka published an article referring to an advertising campaign by a company, Star Foods, for its potato crisps. On the first page of the magazine there was a cartoon showing a boy holding a packet, with the name “Star Foods” on it, saying to Reksio – a little dog, a popular cartoon character for children – “Don ’ t worry! I would be a murderer too if I ate this muck!” ( “ Nie martw się – też bym był mordercą, gdybym jadł to świństwo! ” ). Above the cartoon, there was a large heading reading “Polish children shocked by crisps advertisement, ‘ Reksio is a murderer ’ ( Reksio to morderca ) ”.", "8. The article, printed on the second page of the magazine, read as follows:", "“Recently in Star Foods crisps [packets] stickers appeared which terrified parents and their children: ‘ Reksio is a murderer ’.", "In the [packets of] crisps from the company Star Foods, which are stocked on the shelves of almost all shops, stickers appeared recently which terrified parents and children. In the packets there are little pieces of paper bearing the slogan: “ Reksio is a murderer”.", "Before the stickers appeared in the packets of crisps the company ordered a market study. One of the advertising agencies proposed slogans and sayings used every day by teenagers. Children, however, are terrified by those slogans.", "...", "Prepared following ‘ the Super Express ’ ”", "9. The above quoted article on the second page was accompanied by a small cartoon featuring two cats holding a packet with the word “crisps” on it and the dog Reksio in the background. One cat holds a piece of paper with the slogan “ Reksio murderer ” apparently taken out from the packet and says to the second cat - “surely, he is sometimes unpleasant, but a murderer?!” ( “ Owszem, nieraz bywa przykry, ale żeby od razu mordercą ?!”).", "10. On 2 November 1999 Star Foods (“the plaintiff”) lodged against both applicants a civil claim for protection of personal rights. The company sought an order requiring the defendants to publish an apology in Angora and Angorka for publishing a cartoon discrediting, without any justification, Star Foods products. They further sought reimbursement of their legal costs and payment by the applicants of 10,000 Polish zlotys (PLN) to a charity.", "11. On 28 May 2001 the Łόdź Regional Court ( Sąd Okręgowy ) found for the plaintiff. The court ordered the applicants to publish apologies as sought in the statement of claim and to pay PLN 10,000 to a charity. The applicants were also ordered to pay the plaintiffs PLN 11,500 to reimburse the costs of the proceedings. The court considered that the cartoon in question had breached the personal rights of the plaintiff and discredited the products of the company. The words used by the applicants had an unambiguous meaning relating to disgust and repulsion and were strongly pejorative. Accordingly, the court concluded that the applicants had overstepped the threshold of permissible criticism, in particular in a magazine aimed at children. The court dismissed the applicants ’ arguments that the cartoon had aimed to criticise the advertising campaign run by Star Foods and not their product. It considered that such an attack on the plaintiff ’ s personal rights could not have been justified even by the argument that their campaign was ill-considered.", "12. The applicants appealed against the judgment.", "13. On 21 March 2002 the Łόdź Court of Appeal dismissed the appeal and ordered the applicants to pay the plaintiffs PLN 2 ,500 to reimburse the costs of the appellate proceedings. It agreed with the lower court ’ s assessment that the critical statement had not concerned the style of advertisement adopted by Star Foods. Calling the product of the company “muck” was surely not a critical assessment of their advertising campaign but had been aimed at the product, the brand, and the good name of the company. The statement in question “I would be a murderer too if I ate this muck” contained an obviously negative assessment of the taste and quality of the product. Thus, the applicants ’ action aimed to discredit, without justified grounds, the product of Star Foods and as such could not enjoy the benefit of legal protection. The appellate court also observed that the applicants had repeatedly relied on the interests of children to justify their actions, while they themselves had repeated, in the supplement for children, the slogan that in their opinion had had a negative impact on children ’ s emotions and had terrified them.", "14. On 12 December 2002 the Supreme Court refused to examine the cassation appeal lodged by the applicants." ]

[ "II. RELEVANT DOMESTIC LAW", "15. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” ( dobra osobiste ). This provision states :", "“The personal rights of an individual, such as, in particular, health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”", "16. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "17. The applicants complained of a breach of Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "18. The Government contested that argument.", "A. Admissibility", "19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Arguments of the parties", "20. The applicants submitted that the interference with their right to freedom of expression had not been necessary in a democratic society as it had not been justified by a pressing social need. They maintained that what was at stake in the present case was not purely commercial interests but participation in a general debate. In such cases the existence of particularly strong reasons for restricting the freedom of the press in a democratic society was necessary and the national margin of appreciation was limited.", "21. The applicants argued that the cartoon in question had to be examined in the full context in which it had been published. It was one of two cartoons referring to the advertising campaign run by Star Foods and was accompanied by the heading “Polish children shocked by crisps advertisement ... ” and a clear indication that the details could be found in the article on the second page. The applicants stressed that the slogan “ Reksio is a murderer”, on which they had based the cartoon in question, had been only one example – of a mild nature in comparison to others – of highly inappropriate phrases which had been used in the campaign directed at children. Others alluded to sexual behaviour and alcohol drinking or were of a racist and chauvinistic nature. Examples of other slogans included: “I ’ m pretty but not easy (“ Jestem ładna ale nie łatwa ”), “ Where are the panties?” (“ Gdzie są majtki ?”), “You fool! I multiply with ease” ( Ty baranie !, łatwo się rozmnażam !”), “Entertain me” (“ Rozerwij mnie ”), “Stick with me” (“ Przyklej się ”), “I can ’ t on Saturday” (“ W sobote nie mogę ”), “Drink Your Highness” (“ Pij Waść !”), “ Don ’ t drink alone (to the mirror)” (“ Nie pij do lustra ”), “100 years behind Blacks” (“ Sto lat za murzynami ”; meaning to be backward), ”Poles – go farming” (“ Polacy na pole ”), “People to Zoo” (“ Ludzie do Zoo ”).", "The inappropriateness of such a campaign had been clearly a matter of public interest and the subject had been raised by some newspapers. Thus the applicants had been justified in joining this debate.", "22. The applicants submitted that the cartoon had been a satirical commentary on the article and disagreed that it had obviously attacked the good name of the product. They maintained that they had not been interested in criticising the quality of the product. Ultimately, the use of such wording was a consequence of employing a simplified and satirical form of expression as the publication had been addressed to children. Admittedly, they had used provocative and inelegant language and the journalistic form had been exaggerated; nevertheless, the cartoon remained within the limits of acceptable criticism which should be allowed in a democratic society.", "23. The applicants also considered that the plaintiff company had not incurred any material damage, and even if the good name of the company had suffered it had been more as a consequence of the ill- considered advertising campaign than their publication. The applicants concluded that the reasons adduced by the domestic authorities had not been relevant or sufficient to show that the resulting judicial decision had been necessary in a democratic society. The domestic courts had failed to achieve a balance between the two interests at stake – that of the freedom of the press and protection of the reputation of the company.", "24. The Government admitted that the penalty imposed on the applicants had amounted to an “interference” with their right to freedom of expression. However, they submitted that the interference was “prescribed by law” and pursued a legitimate aim as it was intended to protect the reputation and rights of others.", "25. The Government argued that the applicants had overstepped the boundaries of what is protected by Article 10 and breached the plaintiff company ’ s personal rights. The domestic courts ’ reaction was thus legitimate and necessary in a democratic society as they were responding to a “pressing social need” to protect the rights of Star Foods. Moreover, the courts had fairly assessed the relevant facts and ordered a moderate penalty.", "26. The Government submitted that while the text published by the applicants concerned the advertising campaign, the cartoon on the front page of the magazine referred exclusively to the product of Star Foods. The applicants, in the cartoon under consideration, had not directed their exaggerated criticism at the advertising campaign but at the product itself clearly stating that crisps produced by Star Foods were “ muck”. They considered that the cartoon sent an obvious message to the readers – children – “that they should keep away from the products referred to in such critical and derogatory language”. The applicants had discredited the potato crisps produced by the company without providing any valid reason for doing so and had failed to provide any factual basis which could support their value judgment regarding the product.", "27. The Government concluded that the interference complained of had been proportionate to the legitimate aim pursued and thus necessary in a democratic society to protect the reputation of others. They submitted that there had been no violation of Article 10 of the Convention.", "2. The Court ’ s assessment", "(a) General principles", "28. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII ).", "29. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).", "No doubt Article 10 § 2 enables the reputation of others – that is to say, of all individuals – to be protected; but the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues (see Lingens v. Austria, cited above, § 42).", "30. The pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders (see Castells v. Spain, judgment of 23 April 1992, Series A no. 236, § 43). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38).", "31. Although freedom of expression may be subject to exceptions they “must be narrowly interpreted” and the necessity for any restrictions “ must be convincingly established” (see the above-mentioned Observer and Guardian judgment, p. 30, § 59).", "Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see Worm v. Austria, judgment of 29 August 1997, Reports 1997 ‑ V, p. 1551, § 47, and Feldek v. Slovakia, no. 29032/95, § 78, ECHR 2001 ‑ VIII ).", "32. One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. A requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey, no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II).", "33. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52, and Jerusalem v. Austria, cited above, § 33).", "(b) Application of the general principles to the present case", "34. The Court notes that it is undisputed that the civil proceedings against the applicants amounted to an “interference” with the exercise of their right to freedom of expression. The Court also finds, and the parties agreed on this point, that the interference complained of was prescribed by law, namely Articles 23 and 24 of the Civil Code, and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect “the reputation or rights of others”. Thus the only point at issue is whether the interference was “necessary in a democratic society” to achieve such aims.", "35. At the outset the Court notes that the plaintiff in the present case was a private company which has a right to defend itself against defamatory allegations. In addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 -II ).", "36. However, the Court considers that the facts of the case differ substantially from the Steel and Morris case cited above, which concerned serious defamatory allegations against McDonalds. The applicants in the instant case had published in a magazine addressed to children two cartoons accompanied by an article about an advertising campaign launched by the company producing crisps. The domestic courts found that they had breached the company ’ s personal rights by employing in one of the cartoons the word “muck” which had been considered as aimed at discrediting, without justification, the product of Star Foods.", "37. The Court firstly notes that, in the domestic proceedings, and in their submissions before the Court, the applicants argued that the publication had contributed to a public debate on the question of the ill- considered and harmful advertising campaign conducted by Star Foods. The Court considers that the domestic courts did not give sufficient attention to the applicants ’ argument that the satirical cartoon had been a riposte to, in the applicants ’ view, an unacceptable advertising campaign conducted by Star Foods and targeted at young children. The campaign used slogans referring not only to the Reksio character, but also to sexual and cultural behaviour, in a manner scarcely appropriate for children – the intended market segment. This clearly raises issues which are of interest and importance for the public.", "The applicants ’ publication therefore concerned a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must exercise caution when the measures taken by the national authorities are such as to dissuade the press from taking part in the discussion of matters of public interest (see Standard Verlags GmbH v. Austria, no. 13071/03, § 49, 2 November 2006 ).", "38. Secondly, the Court considers that the subject of the instant case is not a defamatory statement of fact but a value judgment – as submitted by the Government. Moreover, the publication in question constituted a satirical denouncement of the company and its advertising campaign in the form of a cartoon. The Court observes that the cartoon in question was accompanied by a large heading referring to “a shocking advertising campaign” and an article on the second page reporting on the Star Foods campaign. The cartoon itself had been obviously inspired by the company ’ s advertising campaign as it used the Reksio character and the slogan which was to be found in the packets of crisps.", "Taking the above facts into account the Court finds that the applicants ’ aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales.", "39. The Court finally considers that the domestic courts failed to have regard to the fact that the press had a duty to impart information and ideas on matters of public interest and in so doing to have possible recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006-..., and Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006 ).", "The wording employed by the applicants had been exaggerated; however, they were reacting to slogans used in the plaintiff ’ s advertising campaign which also displayed a lack of sensitivity and understanding for the age and vulnerability of the intended consumers of their product, namely children. The Court thus considers that the style of the applicants ’ expression was motivated by the type of slogans to which they were reacting and, taking into account its context, did not overstep the boundaries permissible to a free press.", "In sum, the Court is of the opinion that the reasons adduced by the domestic courts cannot be regarded as relevant and sufficient to justify the interference at issue.", "40. Regard being had to the above considerations and in particular to the interest of a democratic society in ensuring and maintaining the freedom of the press on subjects of public interest, the Court concludes that the authorities ’ reaction towards the applicants ’ satirical cartoon was disproportionate to the legitimate aim pursued and, accordingly, was not “necessary in a democratic society” “for the protection of the rights of others”.", "There has accordingly been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "41. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "42. The first applicant claimed 24,000 Polish zlotys (PLN), equivalent to 7,200 euros (EUR) at the date on which the claims were submitted, in respect of pecuniary damage. This sum represented PLN 2,500 and PLN 11,500 paid by the applicants to the plaintiff as reimbursement of the costs of the proceedings and PLN 10,000 paid to a charity - as ordered by the domestic courts. The first applicant further claimed interest due on this amount.", "As regards non-pecuniary damage, the first applicant claimed EUR 10,000 as compensation for damage caused to his good name as a reliable publisher given the publicly made allegations that he lacked professionalism and diligence.", "43. The Government submitted that the final judgment in this case was delivered on 21 March 2001 and the State could not be held responsible for paying interest during a subsequent period of examination of the case by the Court. With regard to non-pecuniary damage, the Government argued that the sum claimed by the applicant was excessive. They invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.", "44. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage as the first applicant referred to the amount which he was ordered to pay by the domestic courts (see Busuioc v. Moldova, no. 61513/00, § 101, 21 December 2004 and Kulis, cited above, § 59 ). The Court awards the first applicant the sum claimed in full, that is EUR 7 ,200.", "45. The Court also accepts that the first applicant also suffered non ‑ pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the first applicant EUR 3 ,000 under this head.", "B. Costs and expenses", "46. The first applicant also claimed PLN 6,270, equivalent to EUR 1,900, for the costs and expenses incurred before the domestic courts which included PLN 1,400 for court fees at the cassation stage and PLN 4,870 for the legal representation of the applicants before the domestic courts. He further claimed PLN 14,000, equivalent to EUR 4,200, for the costs of their representation before the Court.", "47. The Government submitted that the costs and expenses should be awarded only in so far as they had been necessarily incurred and in a reasonable amount.", "48. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant sufficiently substantiated that these sums had been actually and necessarily incurred by submitting relevant invoices and other evidence. Regard being had to the information in its possession and the above criteria, the Court allows the first applicant ’ s claim in full and awards him the sum of EUR 6,100 covering costs under all heads.", "C. Default interest", "49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first and second applicants were born in 1951 and 1967 and live in Helsinki and Tampere respectively. The applicant company is based in Helsinki. The first applicant is the editor-in-chief of the applicant company and the second applicant is a journalist.", "6. On 6 September 2000 a student was allegedly raped at a party which was held to celebrate a local baseball team's victory in the Finnish championship. On 11 May 2001 the applicant company published an article in the magazine Suomen Kuvalehti about this incident entitled “ A student raped at the baseball party”. The content of the article was the following:", "“A girl studying in K. [name of the city] was raped at the party to celebrate the victory of K.P. [name of the team] last September. Several players of the team participated in the rape.", "The folk high school of K. confirms that their student was a victim of rape at the party to celebrate the victory of K.P. held on 6 September 2000.", "The girl had been invited by the gold-medal team to attend “an after party” in a hotel in K. According to the information received by Suomen Kuvalehti, the rapist was one of the players of the team but there were also other players in the hotel room, some of them holding the victim, some of them watching. The rape was interrupted when one of the players of the team entered the room and ordered the others to stop the rape.", "The student girl is an adult. She has given a written statement about the incident but does not wish, at least for the time being, to report the incident to the police.", "The folk high school has reported the incident to the city officials, to the leaders of the baseball team and to its main sponsor.", "K.P. won the second consecutive gold medal in the Finnish championship league last autumn. The team defeated S.J. straight 3-0.”", "7. The article did not include any photographs. Moreover, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine.", "8. The players had not been contacted for their comments before the article in question was published but the magazine published in its next issue a reply given by them in which they denied being guilty of any crime.", "9. The content of the article was based on a statement given by the victim to the folk high school of K. on the following morning and which had been corroborated by two witnesses. Several other persons had also made statements supporting the victim's account of the facts.", "10. The police started to investigate the alleged rape after the article had been published. According to a press release issued by the police on 19 April 2002, the victim of the alleged rape was not able to identify the offender or the offenders nor was she able to clarify the events in such detail that the offence could be attributed to a certain person or persons. Consequently, the National Bureau of Investigation ( keskusrikospoliisi, centralkriminalpolisen ) interrupted the pre-trial investigation.", "11. On 30 October 2002 the public prosecutor brought charges for aggravated defamation against the first applicant, the editor-in-chief of the applicant company, and the second applicant, the journalist. The baseball team pursued a compensation claim against all the applicants, which was joined to the criminal charges.", "12. On 26 March 2003 the Espoo District Court ( käräjäoikeus, tingsrätten ), after an oral hearing, sentenced the first and second applicants to pay sixty day-fines, amounting to 3,540 and 1,920 euros (EUR) respectively, for aggravated defamation. Moreover, all the defendants in the domestic proceedings were jointly and severally ordered to pay the baseball team EUR 89,000 plus interest for non-pecuniary damage as well as for costs and expenses. The court found that the statement made by the rape victim had not been reliable since she had not brought the issue to the police's attention. The local public had not been aware of the incident until the article in question was published in the mass media. All members of the baseball team had suffered non-pecuniary damage due to the false accusations published in the article. The court concluded that the accusations were so serious that their accuracy should have been verified very carefully, which the applicants had failed to do. As to the compensation awarded, the court noted that the defamation was directed at all players of the team and that they could receive compassionate support from each other. The court took this into account when reducing the amount of compensation awarded for their suffering.", "13. On 9 May 2003 the applicants appealed to the Helsinki Appeal Court ( hovioikeus, hovrätten ), claiming that they had had strong reasons to believe that the accusations were true. If the same evidence had been presented in criminal proceedings, it would have led to the conviction of the offender. The police had been aware of the incident but had not done anything even though rape was an offence that always required ex officio public prosecution. The applicants claimed under Article 10 of the Convention that their right to freedom of expression had been violated.", "14. The Helsinki Appeal Court held an oral hearing from 6 to 8 June 2005. On 11 October 2005 it upheld the Espoo District Court's judgment. The Appeal Court stated the following:", "“Freedom of expression and protection of private life and honour are fundamental rights. According to Article 10 § 1 of the Constitution, everyone's honour is guaranteed. Freedom of expression and protection of honour are also human rights protected by the European Convention on Human Rights. Therefore, when interpreting the extent of these fundamental rights, the case-law of the European Court of Human Rights must also be taken into account.", "...", "According to Article 10 paragraph 2 of the European Convention on Human Rights, the exercise of freedom of expression may be subject to such restrictions and penalties as are prescribed by law and are necessary in a democratic society, for the protection of the reputation of others. The European Court of Human Rights has, inter alia, in its judgment Karhuvaara and Iltalehti v. Finland of 16 November 2004 taken a position with respect to the freedom of expression of journalists, stating that the press must not overstep certain bounds in respect of the rights and the reputation of the others, although journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. Similarly in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004.", "According to Article 6 paragraph 2 of the European Convention on Human Rights, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The European Court of Human Rights has found in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004 that the ordinary journalistic obligation to verify a factual allegation required that the journalists should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis had to be. In the case “ Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria of 14 November 2002 the above-mentioned court stated that, as the case had only reached an early stage of the criminal proceedings, particular care had to be taken to protect a person against “trial by the media” and to give effect to the presumption of innocence.", "It must be decided on the one hand whether the honour of [the players] has been violated and on the other hand, whether there were sufficient reasons to restrict [the applicants'] freedom of expression.", "The article in question mentions that some of the players of the K.P. were guilty of rape. As it was mentioned in the article that the rape took place at the party to celebrate the victory of K.P., one can reasonably think that it was especially the players of the winning team that were involved. [The second applicant] has confirmed during the Appeal Court proceedings that by players he had meant the players of the winning team.", "The article was written in such a manner that any one of the players could have been guilty of a serious crime. The maximum sanction for the alleged crime is ten years'imprisonment. Before the publication of the article, not even the pre-trial investigation had started. Labelling someone guilty before a matter has been resolved by a court of law would mean rendering a premature public judgment, the consequences of which could be difficult to repair. Also and from the general point of view, taking into account ultimately the ability of the courts to function, the public must not have false expectations or misunderstandings (for example KKO 2000:54). The allegation has violated [the players'] right to the presumption of innocence. Moreover, the allegation of having committed a serious crime is an act that is conducive to causing damage and suffering or contempt. On the above-mentioned grounds the Appeal Court finds, like the District Court, that [the players'] honour has been violated.", "[The applicants] have alleged in the Appeal Court that the police of K. had known about the rape but had not taken any measures. Concealing a serious crime is an issue of social relevance about which the press must be able to write. However, the article does not mention that the police tried to conceal the matter or that the folk high school or anybody else had even informed the police. On the contrary, the article mentioned that the alleged victim did not want to report the incident to the police. Even though according to the article the folk high school had reported the incident to the city officials, to the management of the baseball team and to its main sponsor, this part of the article does not, bearing in mind the possibility of the said instances to act in the matter, show any intention to conceal the matter.", "On the above-mentioned grounds, the Appeal Court finds that the essential function of the press in the core area of freedom of expression and as a guardian against misuse of power in a democratic society is not at stake in the present case, even though the pre-trial investigation into the alleged rape was started only after the publication of the article.", "[The first and second applicants] have not demonstrated that they had sufficient reasons to believe that the allegations made in the article were true. They have stated that they did not even try to contact [the victim], the players or their team. [The first and second applicants] have declined to reveal their sources. By not revealing their sources, they have taken the risk of possibly being convicted for defamation. As stated above, there is no indication that the alleged rape was commonly known in K. before the publication of the article. By relying solely on the statement made by the [victim], in which the perpetrators were not identified in any other way than that the rape had taken place at the winners'party, [the first and second applicants] could not have reasonably considered the statement as being true. The statement was made by private persons and in order that the folk high school could later demonstrate that it had given sufficient instructions in the matter. The statement had not been written on [the victim's] initiative. One could not reach such a conclusion on the basis of the statement that only some of the players were guilty of rape. [The first and second applicants] have failed to verify sufficiently that the information about the players being guilty of rape was true, although they had had the possibility to clarify the issue. The nature and the seriousness of the crime required that the article was particularly accurate.", "There are no reasons to estimate that [the players'] right to honour would be lesser than [the first and second applicants'] right to freedom of expression. Restricting [the first and second applicants'] right to freedom of expression was necessary in order to protect [the players'] honour and their presumption of innocence. ... .”", "15. On 12 December 2005 the applicants applied for leave to appeal to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds for appeal relied on before the Appeal Court.", "16. On 15 May 2006 the Supreme Court refused leave to appeal." ]

[ "II. RELEVANT DOMESTIC LAW", "17. Chapter 24 (531/2000), Article 9, of the Penal Code ( rikoslaki, strafflagen ) reads as follows:", "“ A person who (1) spreads false information or a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or (2) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph (1), shall be sentenced for defamation to a fine or to imprisonment for a maximum period of six months.", "Criticism that is directed at a person's activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs (1) and (2). ”", "18. Article 10 of the same Code provides that if, in the defamation referred to in Article 9, the offence is committed by using the mass media or otherwise by making the information or insinuation available to a large number of people, the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for a maximum period of two years.", "19. Section 39 of the Freedom of the Press Act ( painovapauslaki, tryckfrihetslagen; Act no. 909/1974), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material.", "20. Chapter 5, section 6, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising, inter alia, from an offence against liberty, honour, domestic peace or from another comparable offence. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "21. The applicants complained under Article 10 of the Convention that their right to freedom of expression had been violated when they had been sentenced for aggravated defamation.", "22. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "23. The Government contested that argument.", "A. Admissibility", "24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "(a) The applicants", "25. The applicants claimed that the question of whether or not there had been a rape ultimately had no significance when assessing the necessity to restrict freedom of expression, as the applicants had had good grounds for publishing the case at the time of the publication: the applicants had relied on a number of sources including a written statement submitted by the rape victim and verified by two witnesses, the article had dealt with a serious criminal offence, and although the rape suspicions had also been known to the local police, no investigation had been started. The article had not infringed the presumption of innocence of any of the players as no player had been mentioned by name. It had also become apparent from the article that the victim had not wanted the police to investigate the matter. The magazine had published a reply given by the players in its next issue in which all the players had denied being guilty of a crime.", "26. The applicants pointed out that the fact that the victim had later withdrawn her identification of one named offender did not have any significance as far as the applicants'responsibility was concerned as they knew nothing about the said withdrawal, which took place a year after the publication of the article. It was undisputed that during the police investigation the victim had still maintained that the rape had taken place and that the investigation had only been suspended, and not terminated for good, since the victim had not been able and/or willing to contribute to solving the matter.", "27. The applicants maintained that it was undisputed that the police and other people had been aware of the suspected rape prior to the publication of the article. It was also undisputed that although the act had been subject to public prosecution, the police had not started or even tried to launch a pre-trial investigation into the matter prior to the publication of the article. It did not make any difference whether the events had been actively concealed or whether that had been the result of the indifference of the persons who knew about the events, since the result had been that the information had in fact been concealed.", "(b) The Government", "28. The Government agreed that the conviction of the first and second applicants and the obligation of all applicants to pay damages and costs had amounted to an interference with their right to freedom of expression.", "29. As to the requirement that that interference be “prescribed by law”, the Government pointed out that the applicants had not questioned this. In any event, the measures in question had had a basis in Finnish law, namely in the Constitution and, in particular, in Chapter 2 4, Articles 9 and 10, of the Penal Code. Moreover, the interference complained of had had a legitimate aim, namely the protection of the reputation or rights of others.", "30. As to the necessity requirement, the Government maintained that the first and second applicants had been convicted by the domestic courts for having presented false information concerning the players of the Finnish baseball winning team as they had reported on the Internet site of a nationwide magazine and in an article published in that magazine that players of the team had raped a female student. The text on the front page of the magazine as well as the headline and the text of the article had clearly indicated that the rape had been a fact that had actually taken place. The article had not mentioned any players of the team by name and the suspicion had thus covered them all. The players came from a small town where they and their families were well known and could thus be identified from the article. The rape suspicion had thus been conducive to complicating the everyday life of the players and their families. However, as the defamation had been directed at all players of the team and they could receive compassionate support from each other, the District Court took this into account by reducing the amount of compensation awarded for their suffering.", "31. The Government observed that the only source confirming the alleged rape had been the statement made by the victim. No attempts had been made by the applicants to contact the victim or the players or their club. The present case was not about revealing journalistic sources but about the obligation to verify a factual allegation. The alleged rape had not at any stage been proved to have taken place. The alleged victim had withdrawn her allegation of being able to identify those involved in the rape. The pre-trial investigations had started after the article was published but as the victim had not been able to clarify either the events or the offenders, the pre-trial investigation had to be interrupted. It had not been shown that information about the alleged rape had been concealed. In the article itself the passivity of the police had not been mentioned nor had the police's or anyone else's conduct been questioned. The article itself had not contributed to any discussion of social significance in the present case. The factual basis of the article on which the applicants had relied had not been sufficiently accurate and reliable to be considered proportionate to the nature and degree of their allegations. The fact that a reply had been published later on did not give the players an effective opportunity to defend themselves as the damage to their reputation had already occurred.", "32. The Government concluded that the measures in question, the conviction and the order to pay damages and costs, had been “proportionate to the legitimate aim pursued” and the reasons adduced by the courts to justify them had been “relevant and sufficient”.", "2. The Court's assessment", "1. Whether there was an interference", "33. The Court agrees with the parties that the applicants'conviction, the fines imposed on them and the award of damages and costs concerning all applicants constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "2. Whether it was prescribed by law and pursued a legitimate aim", "34. The Court notes that, according to the Government, the measures in question had a basis in Finnish law, namely in the Constitution and, in particular, in Chapter 2 4, Articles 9 and 10, of the Penal Code. Moreover, the interference complained of had a legitimate aim, namely the protection of the reputation or rights of others. The applicants did not question this. Therefore the Court concludes that the interference was “prescribed by law” (see Nikula v. Finland, no. 31611/96, § 34, ECHR 2002 ‑ II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X, Eerikäinen and Others v. Finland, cited above, § 58 ) and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.", "3. Whether the interference was necessary in a democratic society", "35. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be strictly construed. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).", "36. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).", "37. The Court's task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).", "38. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30; Lingens, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000 ‑ I ). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 ).", "39. The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65 ).", "40. The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Bladet Tromsø and Stensaas v. Norway, cited above, § 65). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas v. Norway, cited above, § 58).", "41. One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. A requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey, no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II).", "42. The Court notes that special grounds are required before a newspaper can be dispensed from its ordinary obligation to verify factual statements that are defamatory of private individuals. The question of whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the newspaper can reasonably regard its sources as reliable with respect to the allegations. The latter issue must be determined in the light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas v. Norway, cited above, § 66).", "43. Turning to the facts of the present case, the Court notes that the first and second applicants were convicted on the basis of the remarks made in an article in their capacity as editor-in-chief and journalist, respectively. The Court notes that the issue which is essentially at stake in the present case is whether the domestic authorities struck the required balance between the applicants'right to freedom of expression and the right to reputation of the alleged perpetrators of a crime.", "44. The Court observes at the outset that the article of 11 May 2001 was entitled “ A student raped at the baseball party”. In addition, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine. The article stated that a student had been raped by one of the baseball players of the local winning team, that several other players had participated in the incident but that it had finally been interrupted by one of the players. The events were described in the article in a very short and concise manner. It was also mentioned that the girl was above 18 years of age and that, for the time being, she did not wish to report the incident to the police. No other reference to the involvement or inaction of the police was made in the article. Moreover, it was mentioned that certain city officials, the management of the baseball team and its main sponsor knew about the incident.", "45. The Court observes first that, in general, the article was written in an objective manner and its style was not sensational or gossip-like. The article did not mention the names of any of the persons involved in the incident nor were any photographs included. However, the players could be identified by the fact that they belonged to the local sports club, which was mentioned by name, and that they were members of the winning team of 2000. They could thus be identified in their home town, by baseball fans and by a larger public (see Selistö v. Finland, cited above, § 64) and therefore suffer damage to their reputation (compare and contrast Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 67).", "46. The applicants claimed that they wrote about an issue of public interest, namely about a serious crime that had allegedly been committed by private persons and in respect of which no investigation had been started. However, the Court notes that the applicants did not mention this issue anywhere in the article, failing thus to demonstrate that the issue was of public interest. Moreover, the allegations were of a serious nature and were presented as statements of fact rather than value judgments. As regards the nature and degree of the defamation, the accusations of rape were found defamatory by the domestic courts because the accused were said to have committed a crime (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 66, Series A no. 239 ). Moreover, nothing in the article indicated that the city officials had tried to conceal the crime imputed to the members of the baseball team.", "47. As to the reliability of the sources, the Court notes that the applicants based their article on the victim's statement given to the folk high school of K. which was corroborated by several witnesses interviewed by the applicants but who wished to remain anonymous. The Appeal Court found that the applicants had not been able to show that they had had sufficient reasons to believe that the accusations were true and that by not revealing their sources, they had taken the risk of being convicted of defamation. In this connection the Court recalls that protection of journalistic sources is one of the basic conditions for press freedom without which sources may be deterred from assisting the press in informing the public on matters of public interest (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009 ). However, the Court observes that in the instant case the applicants were at no stage required to disclose the identity of their sources. Moreover, they failed to take any steps to verify whether the accusation had a basis in fact, although they had the possibility to clarify the issue by contacting the victim, the players and their team.", "48. As stated by the Appeal Court, the alleged rape was presented in the article as a fact although the criminal investigation only started after the publication of the article. Article 6 § 2 requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The Court therefore considers that the article violated the presumption of innocence of the players and defamed them by stating something as a fact which had not yet been established.", "49. Moreover, the Court has taken into account the severity of the sanctions imposed on the applicants. It observes that the first and second applicants were ordered to pay sixty day-fines, amounting to EUR 3,540 and EUR 1,920 respectively. In addition, all three defendants in the domestic proceedings, together with the publishing company, were ordered to pay damages and costs and expenses jointly and severally in a total amount of EUR 89,000 plus interest, of which EUR 81,600 plus interest was attributable to the three applicants in the present case before the Court. However, it should be borne in mind that the amount of compensation to be paid by the applicants to the members of the baseball team was only EUR 4,000 or EUR 5,000 per member although there were twelve members in the team. For the Court, this approach must be seen as illustrative of the domestic courts'search for a proportionate response to the interference with the applicants'Article 10 rights.", "50. Finally, the Court notes that in the instant case the first and second applicants were subjected to a criminal law sanction (for which, see for example Raichinov v. Bulgaria, no. 47579/99, § 50, 20 April 2006, and the case-law cited therein). In view of the margin of appreciation left to Contracting States a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007-..., Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004-II and Rumyana Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February 2008 ). Nevertheless, the Court notes that when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed. In this connection, the Court recalls that the imposition of a prison sentence for a press offence will be compatible with journalists'freedom of expression as guaranteed by Article 10 only in exceptional circumstances, notably where other fundamental rights have been impaired, as for example, in the case of hate speech or incitement to violence (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). For the Court, similar considerations should apply to insults expressed in connection with a public debate. The Court would further observe that the Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay (Resolution Towards decriminalisation of defamation adopted on 4 October 2007).", "51. The Court considers that the penalties in the present case, although they might be viewed as quite severe as such, were, seen against the background of the circumstances of the case, proportionate in regard to the competing interests at stake. The severity of the sentence and the amounts of compensation awarded must thus be regarded as falling within the respondent State's margin of response in the circumstances of the instant case. Nor can it be argued that the penalties imposed produced a “chilling effect” on media freedom seen in terms of investigative journalism and the right of the public to be informed of matters of public concern. The commission of a crime and the circumstances in which it is committed are matters of public concern. The Court's case-law, however, clearly illustrates that other imperatives have to be weighed in the balance before an incident is reported by the media to the public as fact. The Court has already underscored the importance of the presumption of innocence in this connection. The right to reputation of third parties is of equal importance especially where serious accusations of sexual misconduct are concerned.", "52. In conclusion, the reasons relied on by the domestic courts, especially by the Appeal Court which in its judgment referred in particular to the Court's case-law, were sufficient to show that the interference complained of was “necessary in a democratic society”. Moreover, the sanctions imposed were proportionate. Having regard to all the foregoing factors, and in particular the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests involved.", "53. Accordingly, there has therefore been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1969 and lives in Budaörs.", "6. On 2 January 2008 the applicant, a journalist, published an article in a column entitled “Opinion” of a national daily paper. The subject of the article was the quality of a well-known Hungarian wine variety, a product of T. Zrt, a State-owned corporation, which was, in the applicant’s view, bad and its popularity with Hungarian consumers unjustified. The article contained the following passage:", "“On nine out of ten occasions, it is a product of T. Zrt, available below 1,000 [Hungarian forints] per bottle, that represents the world’s best wine region, the Hungarian National Pride and Treasure... [and that could make me cry]. Not only because of the taste – although that alone would easily be enough for an abundant cry: sour, blunt and over-oxidised stuff, bad-quality ingredients collected from all kinds of leftovers, grey mould plus a bit of sugar from Szerencs, musty barrel – but because we are still there ...: hundreds of thousands of Hungarians drink [this] shit with pride, even devotion... our long-suffering people are made to eat (drink) it and pay for it at least twice ([because we are talking about a] State-owned company); it is being explained diligently, using the most jerk-like demagogy from both left and right, that this is national treasure, this is how it is supposed to be made, out of the money of all of us, and this is very, very good, and we even need to be happy about it with a solemn face. This is how the inhabitants (subjects) of the country are being humiliated by the skunk regime through half a litre of alcoholised drink.", "And once again, I would remind everybody of how people were whining back then, saying that foreigners were coming to destroy [T.], buy up the market and make everything multinational and alien-hearted; and then it turned out that those foreigners made gorgeous wine, just like some lucky, resolute and very talented Hungarian family wineries, that they tried to make [T.] world-famous again, because this was their business interest (profit, ugh!); while we as a community are trying to destroy their achievements using State money, lest something finally could be a success. ...”", "7. T. Zrt filed a criminal complaint against the applicant. On 2 June 2009 the Budapest II/III District Court convicted him of defamation ( rágalmazás ). The court held that the criticism expressed in the applicant’s article went beyond the boundaries of journalistic opinion and amounted to stating a fact susceptible of harming the reputation of the producer of the wine variety in question. The court refrained from imposing a sentence for a probationary period of one year.", "8. On appeal, on 5 November 2009 the Budapest Regional Court reversed this judgment, holding that the incriminated statement was a value judgment and that therefore the applicant was to be convicted for libel ( becsületsértés ) under section 180(1)b of the Criminal Code. The court held that although the applicant was entitled to express his opinion about the wine in question, by characterising it as “shit” – an expression unduly insulting – he had infringed the producer’s right to a good reputation. The court reduced the sanction to a reprimand.", "9. On 10 May 2010 the Supreme Court upheld the applicant’s conviction and sentence." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "10. The applicant complained that his conviction represented an infringement of his right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "11. The Government contested that argument.", "A. Admissibility", "12. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "13. The Government did not dispute that there had been an interference with the applicant’s right to freedom of expression. They argued however in essence that the impugned expression was so offensive that the applicant’s prosecution had corresponded to a pressing social need. In any event, his case had finished with only a reprimand; consequently, the interference could not be considered disproportionate.", "14. The applicant submitted that he did not dispute that the interference was lawful and pursued a legitimate aim. He argued nevertheless that his conviction was not necessary in a democratic society, given that he was a journalist, the impugned statement was a value judgment concerning a matter of public interest, and the case concerned the reputation of a State-owned corporation.", "15. The Court notes that it has not been disputed by the Government that there has been an interference with the applicant’s right to freedom of expression. It reiterates that an interference with the applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims.", "16. The Court observes that the lawfulness of the measure complained of was based on section 180(1)b of the Criminal Code. It is therefore satisfied that it was “prescribed by law”, and this has not been disputed by the parties. Moreover, it accepts that the interference pursued a legitimate aim, namely the protection of the reputation or rights of others, which again has not been in dispute between the parties. It remains to be determined whether the interference was “necessary in a democratic society”.", "17. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Although freedom of expression may be subject to exceptions, they must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216).", "18. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their margin of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; the Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I).", "19. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII). Article 10 is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204).", "20. The Court would add that offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see, e.g. Skałka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression.", "21. The Court furthermore stresses the essential role which the press plays in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many other authorities, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003-XI). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation ( loc. cit. ).", "22. In the present case, the Court observes that the impugned criminal charges were pressed by a company which undisputedly has a right to defend itself against defamatory allegations. In this context the Court accepts that, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009 ‑ ...). However, there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are devoid of that moral dimension. In the instant application, the reputational interest at stake is that of a State-owned corporation; it is thus a commercial one without relevance to moral character.", "23. The Court notes that the expression used by the applicant is offensive. Nevertheless, the subject matter of the case is not a defamatory statement of fact but a value judgment or opinion, as was admitted by the domestic courts. The publication in question constituted a satirical denouncement of the company within the context of governmental economic policies and consumer attitudes (see paragraph 6 above). Taking the above facts into account, the Court finds that the applicant’s primary aim was to raise awareness about the disadvantages of State ownership rather than to denigrate the quality of the products of the company in the minds of the readers. The opinion was expressed with reference to government policies concerning the protection of national values and the role of private enterprise and foreign investment. It dealt therefore with a matter of public interest.", "24. The Court considers that the domestic courts failed to have regard to the fact that the press had a duty to impart information and ideas on matters of public interest and in so doing to have possible recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006–XIII, and Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006). For the Court, the wording employed by the applicant was exaggerated but made in a public context; the expression used is, regrettably, a commonly used one in regard of low-quality wine and its vulgarity thus constituted a forceful part of the form of expression.", "25. The Court finds that the above considerations are important in assessing the proportionality of criminal-law based interference with Article 10 of the Convention, but were not examined by the domestic courts. It finds that, in the absence of considering the above factors which are preponderant in the present case, the domestic authorities could not establish that the restriction was proportionate.", "26. In view that of the fact that the necessity for the interference has not been not convincingly established by the domestic authorities, the Court cannot but conclude that there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "27. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "28. The applicant made no damages claim.", "B. Costs and expenses", "29. The applicant claimed 3,580 euros (EUR) for the costs and expenses incurred before the Court. This amount corresponds to 35 hours of legal work billable by his lawyer as per the time-sheet submitted at an hourly rate of EUR 100 and additionally to EUR 80 of clerical costs.", "30. The Government did not comment on this claim.", "31. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, i.e. EUR 3,580.", "C. Default interest", "32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two articles about X, a well-known television actor. Between May 1998 and November 2003 X had played the part of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings, until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode).", "10. On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of drugs. After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing information according to which four grams of cocaine had been found at X’s home that he had had sent to him by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined 5,000 euros (EUR).", "A. X’s arrest", "11. At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival ( Oktoberfest ) for possession of cocaine. In a sworn statement ( eidesstattliche Versicherung ) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and, if so, on what grounds. The police had confirmed that X had been arrested in the Käfer tent in possession of cocaine, without giving any further details.", "12. According to that statement, the journalist had then contacted the public prosecutor, W., from the public prosecutor’s office of Munich Regional Court I, in charge of relations with the press, and had asked him for information. W. had confirmed that X had been arrested in the Käfer tent in possession of cocaine. According to W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession of an envelope containing 0.23 grams of cocaine, had arrested him. According to W., the arrest had taken place at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated.", "B. The articles in issue", "1. The first article", "13. In its 29 September 2004 edition, the applicant company’s daily newspaper, the Bild, published the following headline in large type on its front page:", "“Cocaine! Superintendent Y caught at the Munich beer festival.”", "The article, which was printed in small type, read as follows:", "“He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival the police caught X (... years old, Superintendent Y on television), in possession of a small envelope of cocaine. See page 12 for the details.”", "The following headline appeared on page twelve of the daily:", "“TV star X caught in possession of cocaine. A bretzel ( Brezn ), a beer mug [containing a litre of beer – Maß ] and a line of coke ( Koks ).”", "The article, printed in small type, read as follows:", "“Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in arm. And sniffing.... In the celebrities’ tent the TV star X (... years old, whose real name is ...) came out of the gents tapping his nose and attracting the attention of police officers. They searched the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested. Public prosecutor W. from Munich told the Bild : “He was making suspicious movements with his hand, tapping his nose with his fingers. This of course attracted the attention of our officers. An investigation is under way. Only a small quantity of cocaine is involved though. W. : “Right in the middle of the festival grounds ( Wiesn ) – it might have been snuff tobacco, but our men have a flair for this sort of thing...”. X had already had a run-in with the law for possession of drugs. In July 2000 the Superintendent from the TV series had been given a five-month suspended prison sentence and two years’ probation and fined EUR 5,000. He was accused of illegally importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his address in Munich. His probation period ended two years ago. The quantity of the drug found in the tent ... is negligible. What can the actor expect? According to a legal expert questioned by Bild : “Even if the probation period is over the previous conviction is recent. X may get an unsuspended prison sentence – up to six months”. Why prison? “X has apparently not been sufficiently daunted by the suspended prison sentence”. The actor has probably had to submit to a forensic head hair examination. Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken. Yesterday X refused to comment. P.S: “In every toilet cubicle in the tent ... there are signs saying: “The use of drugs is liable to prosecution!”", "The article was accompanied by three photos of X, one on the first page and the other two on page twelve.", "14. On the same day, during the morning, press agencies and other newspapers and magazines reported on X’s arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported in the Bild to other written media and television channels, two of which (“RTL” and “pro7”) broadcast the same reports that evening. During one of the broadcasts the prosecutor W. made the following statement:", "“The police officers saw X making a suspicious movement with his hand while coming out of the men’s toilets and concluded that he had taken something. They searched him and found an envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs and given a suspended prison sentence. He is not a first offender ( Ersttäter ). He should have known that he should not touch drugs. He can now expect a further prison sentence, even if the quantity found on him is insignificant.”", "2. The second article", "15. In its 7 July 2005 edition the Bild printed the following headline on its inside pages: “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!”", "The article read as follows:", "“Munich – On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who had to explain himself to the Munich District Court [ Amtsgericht ] on charges of “unlawful possession of drugs”, has confessed to taking drugs! X’s counsel ... stated: “We fully acknowledge the offence with which we have been charged in the indictment”. X confessed to the court: “I have occasionally smoked cannabis and taken cocaine from time to time. This has not made me happy. It had not turned into a habit but is just something that I have done from time to time”. Question from the court ...: “Are you currently taking drugs?” Reply from X: “No, I smoke cigarettes.” The sentence: a fine of EUR 18,000. The court: “The accused’s full confession has counted in his favour.” On TV X continues investigating on the side of law and order. In Vienna he is in front of the cameras for the television series ... which should be starting on the second channel in the autumn.”", "The article was accompanied by a photo of X.", "C. The proceedings in the German courts", "16. Immediately after the articles appeared, X. instituted proceedings against the applicant company in the Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by him, to Bunte magazine among others, together with photos of him.", "1. The first set of proceedings", "(a) The injunction proceedings", "17. On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article, following a request lodged by X on 29 September 2004. In a judgment of 12 November 2004 it confirmed the injunction. That judgment was upheld by the Court of Appeal on 28 June 2005.", "On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge that judgment, which became final.", "(b) The main proceedings", "(i) Judgment of the Regional Court", "18. On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights ( Allgemeines Persönlichkeitsrecht ). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004).", "19. According to the Regional Court, the article in question, which mentioned X’s name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal’s private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue.", "20. The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X’s person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court pointed out, whilst X’s previous conviction for a similar offence was such as to increase the public’s interest, it was his only previous conviction and, moreover, dated back several years.", "21. The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information. The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series.", "22. The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X’s name – often without a photo – among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye.", "23. X had, to an extent, sought to attract the public’s attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other well ‑ known figures who avoided the limelight. According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights.", "24. The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court’s view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character.", "25. The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court’s view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor’s professional prospects and his difficulties in his relationships.", "26. Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious ( gravierend ) interference with X’s right to the protection of his personality rights.", "27. The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor’s office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor’s office could be regarded as a “privileged source” ( privilegierte Quelle ) of information that did not, as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X’s right to protection of his personality rights. In the court’s opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press.", "28. The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor’s office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media.", "29. In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person’s name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person’s identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake.", "30. The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X’s name by the public prosecutor’s office.", "(ii) Judgment of the Court of Appeal", "31. On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect’s name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience.", "32. The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court’s opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star.", "33. The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time ( längerer Zeitraum ). However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public’s interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X’s appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question.", "34. The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public’s attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men’s toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X’s arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view.", "35. Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor’s office, the Court of Appeal stated that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice.", "(iii) The decisions of the Federal Court of Justice", "36. On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law.", "37. On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions ( Anhörungsrüge ). It stated that when balancing the public’s interest in being informed about public criminal proceedings against an interference with the defendant’s private sphere, the Court of Appeal had taken into account the circumstances of the case and had reached its decision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard.", "2. The second set of proceedings", "(a) The injunction proceedings", "38. On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against any further publication of the second article.", "(b) The main proceedings", "(i) Judgment of the Regional Court", "39. By a judgment of 5 May 2006, the Regional Court granted X’s application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case.", "(ii) Judgment of the Court of Appeal", "40. On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above). On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public’s interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose ( informationelle Selbstbestimmung ).", "41. The applicant company’s reliance on the high audience rating of the television series Y. did not, in the Court of Appeal’s opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men’s toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine.", "42. The Court of Appeal added that whilst the fact that the “quality press” had reported the case might indicate that there was a not insignificant ( nicht geringes ) interest in reporting it, that was not a basis on which to conclude that the interference with X’s right to the protection of his personality rights had been lawful.", "43. The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter’s judgment of 15 November 2005 (see paragraph 48 below).", "(iii) Decisions of the Federal Court of Justice", "44. On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions.", "3. Decision of the Federal Constitutional Court", "45. On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings. It stated that it was not giving reasons for its decision.", "4. Other judicial decisions concerning the applicant company", "46. On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006 edition of the daily newspaper Die Welt and on the newspaper’s internet page (welt.de) on 22 March 2007 the following statement by one of its editors:", "“Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE AND EUROPEAN TEXTS", "A. Domestic law and practice", "1. The Civil Code", "47. Article 823 § 1 of the Civil Code ( Bürgerliches Gestezbuch ) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to make compensation for the resulting damage.", "In accordance with Article 1004 § 1, where another’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction.", "2. Relevant case-law", "48. In its judgment of 15 November 2005 (no. Vi ZR 286/04) the Federal Court of Justice reiterated its established case-law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect. The facts of the case were a fine and a prohibition on driving imposed by the French courts for speeding on a motorway (211 instead of 130 km per hour) on a person known to the public. The Federal Court of Justice found, firstly, that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations, and, secondly, that the offence had put other motorists at considerable risk. Moreover, both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well-known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned. The Federal Court of Justice pointed out that the Court’s judgment in the case of Von Hannover v. Germany of 24 June 2004 (no. 59320/00, ECHR 2004 ‑ VI) allowed of no other conclusion. The articles (and photos) in that case had concerned only scenes from Caroline von Hannover’s daily life, and had aimed merely to satisfy the curiosity of a particular readership regarding her private life.", "49. In a decision of 13 June 2006 (no. 1 BvR 565/06), a three-judge panel of the Federal Constitutional Court decided not to entertain a constitutional appeal lodged against the judgment of the Federal Court of Justice and upheld the latter’s findings.", "B. Texts adopted by the Council of Europe", "1. Recommendation Rec(2003)13 of the Committee of Ministers", "50. The relevant passages of Recommendation (Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003 at the 848 th meeting of the Ministers’ Deputies, read as follows:-", "“...", "Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so;", "Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society;", "Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system;", "Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention;", "...", "Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states:", "1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions,", "...", "Appendix to Recommendation Rec(2003)13", "Principles concerning the provision of information through the media in relation to criminal proceedings", "Principle 1 - Information of the public via the media", "The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.", "Principle 2 - Presumption of innocence", "Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial.", "Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.", "Principle 3 - Accuracy of information", "Judicial authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions. In the latter case, this should be clearly indicated to the media.", "Principle 4 - Access to information", "When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request.", "(...)", "Principle 8 - Protection of privacy in the context of on-going criminal proceedings", "The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”", "2. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy", "51. The relevant passages of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, read as follows:-", "“...", "6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.", "7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.", "8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.", "11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.", "12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.", "13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. ...”", "THE LAW", "I. DISJOINDER OF THE APPLICATION", "52. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had joined the present application to the applications in Von Hannover v. Germany (nos. 40660/08 and 60641/08) – see paragraph 3 above). Having regard, however, to the nature of the facts and the substantive issues raised in those cases, the Grand Chamber considers it appropriate to disjoin applications nos. 40660/08 and 60641/08 from the present application.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "53. The applicant company complained about the injunction imposed on it against reporting on the arrest and conviction of X. It relied on Article 10 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "54. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The Government", "55. The Government acknowledged that the impugned court decisions amounted to an interference with the applicant company’s right to freedom of expression. However, the interference was prescribed by law and pursued an aim recognised as legitimate by the Court, namely, the protection of the private sphere ( News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 44, ECHR 2000 ‑ I). The question at issue between the parties in the present case was whether the interference had been proportionate, and in particular whether the balancing exercise undertaken by the national courts of the applicant company’s right to freedom of expression against X’s right to respect for his private life was in conformity with the criteria established by the Court’s case-law. In that connection regard had to be had to the role of the person concerned, the purpose of the publication and the severity of the sanction imposed on the press.", "56. The Government referred to the national courts’ finding that, unlike Superintendent Y, X was not well known to the public and accordingly could not be regarded as a public figure. In its judgment concerning the second article, the Regional Court had, moreover, differentiated X from Prince Ernst August von Hannover (see paragraph 39 above). The press interviews given by X had not been sufficient in themselves to increase the public’s interest in his person. In the Government’s submission, the task of assessing how well a person was known to the public should fall to the domestic courts. That was particularly true in borderline cases, which required an assessment of the facts and of social situations that the Court could not undertake in respect of each and every potential public figure in 47 States.", "57. With regard to the subject matter of media reports, the Government acknowledged that where the press reported on the commission of an offence it was generally playing its role as “public watchdog”, in particular where criminal proceedings were concerned. There was a greater public interest in this case than when the press merely reported details of the private life of an individual. In the present case, however, the public had no interest in being informed about the offence committed by X, whom they could not have dissociated from the person of the defendant. The present case had not called into question the workings of the justice system, like the case of Obukhova v. Russia (no. 34736/03, 8 January 2009), but had concerned only a minor drugs-related offence committed by a relatively well-known actor.", "58. The task of assessing the seriousness of the offence should fall within the margin of appreciation of the national authorities. In the instant case the courts considered that the offence was of medium, or even minor, seriousness. The Government pointed out that the amount of the fine was relatively high on account of X’s income. The criminal courts had fixed the amount at 90 day-fines, so the offence did not appear in X’s certificate of good conduct (destined for employers) or in his criminal record.", "59. The Government disputed the applicant company’s allegation that the Munich prosecutor had held a press conference and published a press release about X’s arrest prior to publication of the first article (see paragraph 69 below).", "60. As regards the nature of the penalty imposed on the applicant company, the Government observed that the latter had merely been prevented from publishing the content of the articles in question and had been ordered to reimburse modest legal costs. The applicant company had neither been convicted under criminal law nor ordered to pay damages, unlike publishers in other cases who had been given a custodial sentence; nor had it been prevented from carrying on the profession of journalist or faced an order for the seizure of all copies of the particular edition of a newspaper or an order to pay hefty damages ( Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 112, ECHR 2004 ‑ XI; Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 41, 27 October 2005; and Flinkkilä and Others v. Finland, no. 25576/04, § 89, 6 April 2010). The Government added that the German courts had not, moreover, imposed a blanket ban on all reporting of X’s arrest and trial; the problem had been that the applicant company had failed to maintain the anonymity of the actor at the time of his arrest and prior to the trial.", "61. The Government highlighted the margin of appreciation enjoyed by the State in the present case. That margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of the Convention. ( Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008, and A. v. Norway, no. 28070/06, § 66, 9 April 2009). Generally speaking, the margin enjoyed by the States was broader where there was no European consensus. In the Government’s submission, whilst there was admittedly a trend towards harmonisation of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations (Regulation EC No. 864/2007 of 11 July 2007 – Rome II Regulation). The margin of appreciation was also broad where the national authorities had to strike a balance between competing private and public interests or Convention rights ( Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78 ECHR 2007 ‑ XIII). Moreover, the case-law of the Court of Justice of the European Union apparently took the same approach (cases of Omega of 14 October 2004, C ‑ 36/02, and Schmidberger of 12 June 2003, C-112/00).", "62. The Government argued that the special nature of certain cases, such as the present one, in which the domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact that the proceedings before the Court were in fact a continuation of the original legal action, with each party to the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result alone of the balancing exercise of the competing interests was insufficient, and that there should be a “corridor” of solutions within the confines of which the national courts should be allowed to give decisions in conformity with the Convention. Failing that, the Court would have to take the decision on every case itself, which could hardly be its role.", "63. The Government stated that there had been slightly less of a tendency to do this at domestic level because the Federal Constitutional Court granted the ordinary courts a margin of appreciation in that respect and refrained from carrying out its own balancing exercise in their stead. That could, moreover, explain the absence of reasons given for the decision of the Federal Constitutional Court in the present case. The tendency, at national level, to reduce the scope of review by a constitutional court should apply a fortiori to the European Court of Human Rights, which had the task of examining the outcome of balancing exercises carried out by the courts in 47 Contracting States, whose legal systems were still very heterogeneous.", "64. In the Government’s submission, the Court should intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate ( Cumpănă and Mazăre, cited above, §§ 111 ‑ 120). That conclusion was confirmed, moreover, by Article 53 of the Convention: where the relationship between State and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the Convention.", "(b) The applicant company", "65. The applicant company maintained that at the material time X was a well-known actor who played the main role in a television crime series that was extremely popular, especially among young male adults; X had, moreover, been voted second most popular actor in 2002. He was not therefore just an ordinary individual who did not attract media attention, as had been so in other cases decided by the Court (see, inter alia, Sciacca v. Italy, no. 50774/99, ECHR 2005 ‑ I; Toma v. Romania, no. 42716/02, 24 February 2009; and Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009).", "66. In the applicant company’s submission, the commission of a criminal offence was, by its very nature, never a purely private matter. Furthermore, in the present case X was a repeat offender as he had already been given a five-month suspended prison sentence in July 2000 and fined EUR 5,000 for possession of drugs.", "67. The public’s interest in being informed prevailed over X’s right to respect for his private life. X had – of his own initiative – courted public attention, had a market value corresponding to his high profile, had willingly allowed photos to be taken of himself on public occasions and had given press interviews revealing aspects of his private life, including his drug consumption. As a role model and having himself entered the public arena, X should have accepted that he would attract the public’s attention, in particular if he committed a criminal offence. The applicant company argued that anyone who used the media for self-promotion should expect their conduct to be truthfully reported on by the media. This was particularly true in X’s case because, following his first conviction for possession of drugs, he had asserted that he had given up taking drugs. He had accordingly waived his right to privacy.", "68. The applicant company stated, further, that the truth of the facts reported in the articles in question was not disputed (citing, conversely, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, ECHR 2004 ‑ XI). The information given had, moreover, not affected the conduct of the preliminary investigation or the trial (citing, conversely, Tourancheau and July v. France, no. 53886/00, 24 November 2005); it had included details not only about X’s private life, but also serious factual information about criminal law and the consequences of drug taking. The present case was thus distinguishable from the case of Von Hannover (cited above), especially as, unlike X, the applicant in that case had always sought to protect her private life.", "69. The applicant company reiterated that it had reported on X’s arrest after the prosecution authorities had disclosed the facts and the identity of the person arrested. In its submissions at the hearing, particularly in reply to the judges’ questions, it had stated that prior to publication of the articles the Munich public prosecutor’s office had held a press conference – in the presence of television cameras – during which it had provided detailed information. The public prosecutor’s office had also published a long press release on the subject. Accordingly, the applicant company had published only information that had already been made public. It would be demotivating for journalists not to be able to publish such information. Attending a press conference would be a complete waste of time.", "70. In conclusion, the applicant company submitted that the press should not be reduced to reporting only on political figures. Since prominent persons were able to establish a certain image of themselves by seeking the attention of the media, the latter should be permitted to correct that image when it no longer corresponded to the reality. It was not a question of asserting the primacy of the freedom of expression over the right to respect for private life. Freedom of expression should, however, prevail where the person concerned enjoyed a more than regional degree of prominence and had freely engaged in his or her self-promotion.", "2. Third parties’ observations", "(a) Media Lawyers Association", "71. The third-party association submitted that the right to reputation was not protected by the Convention. Publication of a defamatory article about a person did not, of itself, amount to an interference with the exercise of the rights guaranteed under Article 8. When balancing the rights under Articles 8 and 10 of the Convention wide and strong protection should be given to the right of the media to report on all matters of public interest and in particular to inform the public about judicial proceedings. The third-party association observed that the inclusion of a person’s name or other identifying detail played an important part in fulfilling the task of informing the public.", "72. According to a United Kingdom Supreme Court ruling, if the names of the parties were not revealed when reporting on court proceedings the report would be disembodied, readers would be less interested and editors would give the report lower priority. The Media Lawyers Association also stressed the importance of preserving a wide editorial discretion and the principle of open justice to which the media contributed an essential element, adding that there should be no incursion into that principle except where strictly necessary such as protecting a defendant or witness by anonymity. Other than in those circumstances, there should be no restriction on the right of the media to publish reports on court proceedings including photographs.", "(b) Joint submissions by the Media Legal Defence Initiative, International Press Institute and World Association of Newspapers and News Publishers", "73. The three third-party associations submitted that a broad trend could be observed across the Contracting States towards the assimilation by the national courts of the principles and standards articulated by the Court relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if the individual weight given to a particular factor might vary from one State to another. They invited the Court to grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53 of the Convention. They referred to the Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III), submitting that the Court had indicated that it would allow Contracting States a wide margin of appreciation in situations of competing interests.", "74. The Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships between private parties or other areas in which opinions within a democratic society might reasonably differ significantly ( Fretté v. France, no. 36515/97, § 41, ECHR 2002 ‑ I). The Court had, moreover, already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights under Articles 8 and 10 of the Convention ( A. v. Norway, cited above, § 66). Its role was precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair balance and whether particular factors taken into account by the national courts in striking such a balance were consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal for such cases.", "3. The Court’s assessment", "75. The parties agreed that the judicial decisions given in the present case constituted an interference with the applicant company’s right to freedom of expression as guaranteed by Article 10 of the Convention.", "76. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, had an aim or aims that is or are legitimate under Article 10 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims.", "77. It is common ground between the parties that the interference was prescribed by Articles 823 § 1 and 1004 § 1 of the Civil Code (see paragraphs 18 and 47 above), read in the light of the right to protection of personality rights. They also agree that it pursued a legitimate aim – namely, the protection of the reputation or rights of others – within the meaning of Article 10 § 2 of the Convention, which, according to the Court’s case-law ( Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI, and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007), can encompass the right to respect for private life within the meaning of Article 8. The parties disagree, however, as to whether the interference was “necessary in a democratic society”.", "(a) General principles", "(i) Freedom of expression", "78. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV; and Lindon, Otchakovsky ‑ Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV).", "79. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 ‑ III, and Pedersen and Baadsgaard, cited above, § 71).", "80. This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 56, ECHR 2000 ‑ I; Dupuis and Others v. France, no. 1914/02 § 35, ECHR 2007 ‑ VII; and Campos Dâmaso v. Portugal, no. 17107/05, § 31, 24 April 2008).", "81. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Baadsgaard, cited above, § 71). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009).", "(ii) Limits on the freedom of expression", "82. However, Article 10 § 2 of the Convention states that freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Pedersen and Baadsgaard, cited above, § 78, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, ECHR 2007 ‑ III).", "83. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer, cited above, § 35; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person’s identity, such as gender identification and sexual orientation, name or elements relating to a person’s right to their image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008-...). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others, cited above, § 75, and Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010).", "In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, cited above, § 64). The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII).", "84. When examining the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).", "(iii) Margin of appreciation", "85. The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001 ‑ I, and Pedersen and Baadsgaard, cited above, § 68).", "86. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004 ‑ X, and Flinkkilä and Others, cited above, § 70). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco, cited above, § 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010).", "87. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly – paragraph 51 above). Accordingly, the margin of appreciation should in principle be the same in both cases.", "88. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011).", "(iv) Criteria relevant for the balancing exercise", "89. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below.", "(α) Contribution to a debate of general interest", "90. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (see White v. Sweden, no. 42435/02, § 29, 19 September 2006; Egeland and Hanseid, cited above, § 58; and Leempoel & S.A. ED. Ciné Revue, cited above, § 72), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). However, the rumoured marital difficulties of a president of the Republic or the financial difficulties of a famous singer were not deemed to be matters of general interest (see Standard Verlags GmbH, cited above, § 52, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 43).", "(β) How well known is the person concerned and what is the subject of the report?", "91. The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47).", "Whilst in the former case the press exercises its role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest, that role appears less important in the latter case. Similarly, although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – even where the persons concerned are quite well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying the curiosity of a particular readership in that respect (see Von Hannover, cited above, § 65 with the references cited therein, and Standard Verlags GmbH, cited above, § 53; see also point 8 of the Resolution of the Parliamentary Assembly – paragraph 51 above). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143).", "(γ) Prior conduct of the person concerned", "92. The conduct of the person concerned prior to publication of the report or the fact that the photo and the related information have already appeared in an earlier publication are also factors to be taken into consideration (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, §§ 52 and 53, and Sapan, cited above, § 34). However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the report or photo at issue (see Egeland and Hanseid, cited above, § 62).", "(δ) Method of obtaining the information and its veracity", "93. The way in which the information was obtained and its veracity are also important factors. Indeed, the Court has held that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Pedersen and Baadsgaard, cited above, § 78; and Stoll v. Switzerland [GC], no. 69698/01, § 103, ECHR 2007-V).", "(ε) Content, form and consequences of the publication", "94. The way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photo have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti, cited above, § 47, and Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006).", "(ζ) Severity of the sanction imposed", "95. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of an interference with the exercise of the freedom of expression (see Pedersen and Baadsgaard, cited above, § 93, and Jokitaipale and Others, cited above, § 77).", "(b) Application to the present case", "(i) Contribution to a debate of general interest", "96. The Court notes that the articles in question concern the arrest and conviction of the actor X, that is, public judicial facts that may be considered to present a degree of general interest. The public do, in principle, have an interest in being informed – and in being able to inform themselves – about criminal proceedings, whilst strictly observing the presumption of innocence (see News Verlags GmbH & Co. KG, cited above, § 56; Dupuis and Others, cited above, § 37; and Campos Dâmaso, cited above, § 32; see also Recommendation Rec(2003)13 of the Committee of Ministers and in particular principles nos. 1 and 2 appended thereto – paragraph 50 above). That interest will vary in degree, however, as it may evolve during the course of the proceedings – from the time of the arrest – according to a number of different factors, such as the degree to which the person concerned is known, the circumstances of the case and any further developments arising during the proceedings.", "(ii) How well known is the person concerned and what is the subject of the report?", "97. The Court notes the substantially different conclusions reached by the national courts in assessing how well known X was. In the Regional Court’s opinion, X was not a figure at the centre of public attention and had not courted the public to a degree that he could be considered to have waived his right to the protection of his personality rights, despite being a well-known actor and frequently appearing on television (see paragraph 23 above). The Court of Appeal, however, found that X was a well-known and very popular figure and had played the part of a police superintendent over a long period of time without himself having become a model law-enforcement officer, which would have justified the public’s interest in the question whether in his private life he actually behaved like his character (see paragraphs 33 and 34 above).", "98. The Court considers that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where that person is mainly known at national level. It notes in the present case that at the material time X was the main actor in a very popular detective series, in which he played the main character, Superintendent Y. The actor’s popularity was mainly due to that television series, of which, when the first article appeared, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Superintendent Y. Accordingly, he was not, as the Regional Court appeared to suggest, a minor actor whose renown, despite a large number of appearances in films (more than 200 – see paragraph 22 above), remained limited. It should also be noted in that connection that the Court of Appeal referred not only to the existence of X’s fan clubs, but also to the fact that his admirers could have been encouraged to imitate him by taking drugs, if the offence had not been committed out of public view (see paragraph 32 above).", "99. Furthermore, whilst it can be said that the public does generally make a distinction between an actor and the character he or she plays, there may nonetheless be a close link between the popularity of the actor in question and his or her character where, as in the instant case, the actor is mainly known for that particular role. In the case of X, that role was, moreover, that of a police superintendent, whose mission was law enforcement and crime prevention. That fact was such as to increase the public’s interest in being informed of X’s arrest for a criminal offence. Having regard to those factors and to the terms employed by the domestic courts in assessing the degree to which X was known to the public, the Court considers that he was sufficiently well known to qualify as a public figure. That consideration thus reinforces the public’s interest in being informed of X’s arrest and of the criminal proceedings against him.", "100. With regard to the subject of the articles, the domestic courts found that the offence committed by X was not a petty offence as cocaine was a hard drug. The offence was nevertheless of medium, or even minor, seriousness, owing both to the small quantity of drugs in X’s possession – which, moreover, were for his own personal consumption – and to the high number of offences of that type and related criminal proceedings. The domestic courts did not attach much importance to the fact that X had already been convicted of a similar offence, pointing out that this had been his only previous offence and, moreover, had been committed some years previously. They concluded that the applicant company’s interest in publishing the articles in question was solely due to the fact that X had committed an offence which, if it had been committed by a person unknown to the public, would probably never have been reported on (see paragraph 20 above).", "The Court can broadly agree with that assessment. It would observe, however, that X was arrested in public, in a tent at the beer festival in Munich. In the Court of Appeal’s opinion, that fact was a matter of important public interest in this case, even if that interest did not extend to the description and characterisation of the offence in question as it had been committed out of public view.", "(iii) X’s conduct prior to publication of the impugned articles", "101. Another factor is X’s prior conduct vis-à-vis the media. He had himself revealed details about his private life in a number of interviews (see paragraph 25 above). In the Court’s view, he had therefore actively sought the limelight, so that, having regard to the degree to which he was known to the public, his “legitimate expectation” that his private life would be effectively protected was henceforth reduced (see, mutatis mutandis, Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 53, and, by converse implication, Eerikäinen and Others, cited above, § 66).", "(iv) Method of obtaining the information and its veracity", "102. With regard to the method of obtaining the published information, the applicant company submitted that it had reported on X’s arrest only after the disclosure, by the prosecuting authorities, of the facts and of the identity of the accused. It also asserted that all the information that it had published had already been made public, particularly during a press conference and in a press release issued by the public prosecutor’s office (see paragraph 69 above). The Government denied that any such press conference had been held by the public prosecutor’s office and submitted that it was not until after the applicant company had published the first article that the prosecutor W. had confirmed to other media the facts related by the applicant company.", "103. The Court observes that it cannot be determined from the documents in its possession whether or not the applicant company’s assertions that a press conference had been held and a press release issued prior to publication of the first article are substantiated. On the contrary, following a question put by the Court at the hearing the assertions in question turned out to be unfounded. The Court finds the attitude of the applicant company regrettable in this respect.", "104. It can be seen, however, from the court decisions delivered in the present case and the observations of the parties to the domestic proceedings that this point was not dealt with before the domestic courts. For the purposes of examination of the present case, the Court will merely observe that the applicant company attached to all its replies in the various domestic proceedings a statement by one of its journalists as to how the information published on 29 September 2004 had been obtained (see paragraphs 11 and 12 above) and that the Government have not contested the truth of that statement. Consequently, whilst the applicant company is not justified in claiming that it had merely published information made public at a press conference held by the Munich public prosecutor’s office, the fact remains that the confirmation of the published information, and in particular X’s identity, emanated from the police and the prosecutor W., who was, moreover, press officer for the Munich public prosecutor’s office at the time.", "105. Consequently, as the first article was based on information provided by the press officer at the Munich public prosecutor’s office, it had a sufficient factual basis (see Bladet Tromsø and Stensaas, cited above, § 72; Eerikäinen and Others, cited above, § 64; and Pipi v. Turkey (dec.), no. 4020/03, 15 May 2009). The truth of the information related in both articles was, moreover, not in dispute between the parties to the domestic proceedings, and neither is it in dispute between the parties to the proceedings before the Court (see Karhuvaara and Iltalehti, cited above, § 44).", "106. However, in the opinion of the domestic courts examining the case, the fact that the information had emanated from the Munich public prosecutor’s office merely meant that the applicant company could rely on its veracity; it did not dispense it from the duty to balance its interest in publishing the information against X’s right to respect for his private life. They found that that balancing exercise could only be undertaken by the press because a public authority was not in a position to know how or in what form the information would be published (see paragraphs 27-30 above).", "107. In the Court’s opinion, there is nothing to suggest that such a balancing exercise was not undertaken. The fact is, however, that having regard to the nature of the offence committed by X, the degree to which X is well known to the public, the circumstances of his arrest and the veracity of the information in question, the applicant company – having obtained confirmation of that information from the prosecuting authorities themselves – did not have sufficiently strong grounds for believing that it should preserve X’s anonymity. In that context, it should also be pointed out that all the information revealed by the applicant company on the day on which the first article appeared was confirmed by the prosecutor W. to other magazines and to television channels. Likewise, when the second article appeared, the facts leading to X’s conviction were already known to the public (see, mutatis mutandis, Aleksey Ovchinnikov v. Russia, no. 24061/04, § 49, 16 December 2010). Moreover, the Court of Appeal itself considered that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful (see paragraph 35 above). In the Court’s view, it has not therefore been shown that the applicant company acted in bad faith when publishing the articles in question.", "(v) Content, form and consequences of the impugned articles", "108. The Court observes that the first article merely related X’s arrest, the information obtained from W. and the legal assessment of the seriousness of the offence by a legal expert (see paragraph 13 above). The second article only reported the sentence imposed by the court at the end of a public hearing and after X had confessed (see paragraph 15 above). The articles did not therefore reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest (see Flinkkilä and Others, cited above, § 84, and Jokitaipale and Others, cited above, § 72). They contained no disparaging expression or unsubstantiated allegation (see the case-law cited in paragraph 82 above). The fact that the first article contained certain expressions which, to all intents and purposes, were designed to attract the public’s attention cannot in itself raise an issue under the Court’s case-law (see Flinkkilä and Others, cited above, § 74, and Pipi, above-cited decision).", "The Court notes, moreover, that the Regional Court imposed an injunction on publication of the photos accompanying the impugned articles and that the applicant company did not challenge that injunction. It therefore considers that the form of the articles in question did not constitute a ground for banning their publication. Furthermore, the Government did not show that publication of the articles had resulted in serious consequences for X.", "(vi) Severity of the sanction imposed on the applicant company", "109. Regarding, lastly, the severity of the sanctions imposed on the applicant company, the Court considers that, although these were lenient, they were capable of having a chilling effect on the applicant company. In any event, they were not justified in the light of the factors set out above.", "(c) Conclusion", "110. In conclusion, the grounds advanced by the respondent State, although relevant, are not sufficient to establish that the interference complained of was necessary in a democratic society. Despite the margin of appreciation enjoyed by the Contracting States, the Court considers that there is no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to freedom of expression and, on the other hand, the legitimate aim pursued.", "111. Accordingly, there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "112. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "113. The applicant company claimed EUR 27,734.28 in respect of pecuniary damage, corresponding to the three penalties that it had had to pay X (EUR 11,000 – see paragraphs 31 and 46 above), and X’s legal costs (EUR 1,261.84 – paragraphs 18 and 40 above) and lawyers’ fees (EUR 15,472.44 ) which it had had to reimburse. It referred, on the latter point, to the case of Verlagsgruppe News GmbH v. Austria (no. 2), (no. 10520/02, § 46, 14 December 2006).", "114. The Government did not comment in that connection.", "115. The Court finds that there is a sufficient causal link between the violation found and the amounts claimed, except those corresponding to the two penalty payments of EUR 5,000. Accordingly, it awards EUR 17,734.28 under this head.", "B. Costs and expenses", "116. The applicant company sought EUR 32,522.80 in respect of costs and expenses. That sum included court costs (EUR 6,610) and lawyers’ fees for the proceedings before the civil courts (EUR 13,972.50), the Federal Constitutional Court (EUR 5,000) and the Court (EUR 5,000), plus translation costs for the proceedings before the Court (EUR 1,941.30). The applicant company specified that although it had agreed on a higher amount of fees with its lawyers, it was claiming only the amounts provided for in the statutory fee scales. With regard to the amounts claimed for lodging the appeal with the Federal Constitutional Court and the application before the Court, the applicant company left the matter to the Court’s discretion, whilst specifying that it sought at least EUR 5,000 in respect of each set of proceedings.", "117. The Government noted that the applicant company limited its claims for lawyers’ fees to the amounts set out in the scales applicable in Germany, which was not open to criticism. They contested the amounts claimed for the proceedings before the Federal Constitutional Court and before the Court, however, for lack of particulars. They indicated that where the Federal Constitutional Court declined to entertain a constitutional appeal, it generally fixed the value of the subject matter of the case at EUR 4,000. The corresponding lawyers’ fees would in that case amount to EUR 500 inclusive of tax.", "118. The Court finds the sums claimed to be reasonable and, accordingly, awards those sums.", "C. Default interest", "119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant, the private company Mladina d.d. Ljubljana, whose registered office is in Ljubljana, is the publisher of the weekly magazine Mladina.", "6. On 16 and 22 June 200 5 the National Assembly (hereinafter – “ Parliament ” ) examined a draft law on same-sex civil partnerships. At a later date it adopted the Registration of Same-Sex Civil Partnerships Act (hereinafter – “the Act”). During the parliamentary debate on the issue, certain deputies of the Slovenian National Party (hereinafter – “ the SNP ” ), which opposed legal recognition of same-sex partnerships, took the floor in order to express their disagreement with the proposed draft.", "7. On 27 June 2005 the Mladina magazine published a one-page article entitled “Registration of Same-Sex Civil Partnerships Act adopted”, with the standfirst: “ Right-wingers full of pride, but according to non-governmental organisations the Act is not consistent with the Constitution”, summarising the parliamentary debate preceding the adoption of the Act. The first three paragraphs of the article read as follows :", "“ Last week, the second reading of the proposed Act on the registration of same-sex civil partnerships ended up as a crash course in narrow-mindedness, pervaded by a Stone Age mentality. Our elected representatives were so keen to reject amendments to the draft [and the] actual rights of same-sex oriented citizens that they decided to pass the Act at the third attempt within one single parliamentary session. On Wednesday, the Act came to fruition, the outcome being 44 votes to 3 ...", "The SNP ’ s gunslingers ... shone brilliantly during the explanation of their votes. [B.Z.] spouted forth all the same stupidities as at the previous reading (such as that the Act was completely unnecessary, that the Act had been extorted by marginal groups, that there were other groups which merited the legislature ’ s priority), and touched on the objections against his use of words such as ʻfaggotsʼ and ʻlesbiansʼ a week ago. He stated: ʻWhere I come from, we call them “ faggots ” and “ lesbians ”; in Primorska [a region in Slovenia], they are called “ kulotini ” and in Ljubljana they are “ gays ”. I am not someone who would change his way of speaking just because he has come to Ljubljana. In Štajerska [another region in Slovenia], we simply have faggots and lesbians. ʼ", "[S.P.], also from the SNP, assured with a playful smile that there was probably not a single person in the assembly hall who wished for the ‘ fruit of their loins to declare themselves to be what we are voting on today, with our rights ... in other words, none of us would want to have a son or a daughter who would opt for this kind of marriage ’. If our homeless people could follow the breadcrumb trail to Finland or even further, let these ladies and gentlemen also go there to marry. But the biggest victims of this law would be the children of such a marriage : ‘ Just imagine a child whose father comes to pick him up from school and greets him with “Heeeeey, I ’ ve come to take you hooooome! Have you got your coat on yet? ’ He accompanied this brilliant remark with a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot, whereas in reality [what it illustrated was] just the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school.”", "8. In the second half of the article, the author first described the responses of other parliamentarians to the SNP members ’ speeches, and in the last two paragraphs concluded with the views on the newly adopted Act expressed by the non-governmental organisations advocating for the rights of same-sex couples, which mainly deplored the fact that the Act accorded a very limited set of rights to these couples. It ended by reporting the announcement by the representatives of these organisations that they would be challenging the newly adopted Act before the Constitutional Court.", "9. On 26 August 2005 the SNP member S.P. brought an action before the Ljubljana District Court for defamation of his honour and reputation against the applicant company, claiming that he had suffered severe mental distress due to the offensiveness of the article. He claimed that the depiction of him as “cerebral bankrupt” was objectively and subjectively offensive, its sole intent being to belittle him.", "10. On 20 September 2005 the applicant company replied that it considered its actions to have been lawful, as a balance had to be struck between S.P. ’ s right to honour and reputation and its own right to the freedom of expression. It invoked the standards and case-law of the European Court of Human Rights regarding the freedom of the press to impart information on matters of public interest. The applicant company considered that S.P. ’ s statements in the parliamentary debate had amounted to an insulting attack which degraded homosexuals, and hence the criticism published in Mladina. Nevertheless, the critical article had not been aimed at belittling S.P. as a person, but constituted a reaction to his own extreme statements in similar terms.", "11. On 28 February 2006 the Ljubljana District Court held an unsuccessful settlement hearing.", "12. On 16 May 2006 another hearing was held at which the court heard S.P., who stated that he had not offended anyone with his remarks, nor had he wished to do so. He had taken the offensive remarks in Mladina as an attack on his character and had been very hurt by them, especially as he had become the subject of ridicule in his local community.", "13. On the same date, the Ljubljana District Court handed down its judgment, in which it partially upheld S.P. ’ s claim and ordered the applicant company to pay him damages in the amount of 700,000 Slovenian Tolars ( 2,921.05 euros (EUR) ). The applicant company was also ordered to publish the introductory and operative part of the judgment in Mladina. The remainder of S.P. ’ s claim was dismissed. The court acknowledged that the applicant company had had the right to publish critical comments on S.P. ’ s conduct in the parliamentary debate; however, the term “cerebral bankrupt” had referred to his personal characteristics and was therefore objectively offensive. In the court ’ s opinion, the use of such offensive language did not simply serve the purpose of imparting information to the public. Moreover, the description in the article did not constitute a serious criticism of S.P. ’ s work.", "14. As to S.P. ’ s conduct, the court held that the gestures he had used to mimic the behaviour of a homosexual man were simply reminiscent of gestures made by actors to convey the idea of homosexuality. The court neither found S.P. ’ s speech and conduct to be offensive to homosexuals, nor considered it to have been aimed at promoting prejudice and intolerance against them. It held that S.P. had merely expressed his opinion, which, wrong as it might have been, was not to be regarded as extreme and thus justifying the treatment in the impugned article.", "15. Both parties appealed against the judgment before the Ljubljana Higher Court.", "16. On 24 January 2007 the Ljubljana Higher Court dismissed the applicant company ’ s appeal. It upheld S.P. ’ s appeal in respect of the text to be published in Mladina informing the public of the judgment, but dismissed his claim for greater damages. The Higher Court upheld the District Court ’ s finding that the statements in the impugned article constituted an offensive judgment of S.P. ’ s personality which he was not required to endure. The court further held that, even assuming that S.P. ’ s speech had been offensive to homosexuals, that did not justify the applicant company ’ s crude response aimed at him personally.", "17. On 10 November 20 07 the applicant company lodged a constitutional complaint with the Constitutional Court. It claimed, inter alia, that the impugned article was to be considered a political satire in which the author had merely expressed his opinion on S.P. ’ s conduct in a public parliamentary debate. It further maintained that the words “ typical attitude of a cerebral bankrupt” had not been aimed at S.P. as a person but at his mimicking of the gestures allegedly typical of homosexual men.", "18. On 10 September 2009 the Constitutional Court, by a majority of six votes to three, dismissed the applicant company ’ s complaint, holding that the lower courts had struck a fair balance between its freedom of expression and S.P. ’ s personal dignity. The court acknowledged the broad boundaries associated with the freedom of the press, especially when reporting on matters of great public interest, but found on the facts of the case in issue that the lower courts had appropriately applied the criteria resulting from their own case-law and the case-law of the European Court of Human Rights. The court dismissed the applicant company ’ s assertion that the criticism in question had not been aimed at S.P. as a person but at his mimicking of homosexuals, concluding that the average reader would understand the remark as an assessment of S.P. ’ s intelligence and personal characteristics.", "19. It also dismissed the applicant company ’ s argument that the article was to be regarded as a satire, as it was evident from the text that it was intended to inform the public about the content of the parliamentary debate and to express a critical opinion of the speeches of the individual deputies. As regards the applicant company ’ s argument that the offensive statement had been a response to S.P. ’ s own offensive remarks, the Constitutional Court acknowledged that in such cases sharper criticism might be permissible, but only if there was a sufficient factual basis for it. As the court found no substantive connection between S.P. ’ s speech and the assessment of his intellectual abilities, it concluded that the criticism was not justified. In the Constitutional Court ’ s view, the impugned article and its author ’ s offensive characterisation of S.P. had not contributed either to people being informed or to a socially responsible public discussion on the position of homosexuals.", "20. Constitutional judge C.R. submitted a dissenting opinion in which he referred to a climate of general tolerance towards intolerant and offensive statements against homosexuals. He further expressed the view that the lower courts had been biased and also that the Constitutional Court had failed to appropriately apply the standards of freedom of the press developed in the case-law of the European Court of Human Rights." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "21. The relevant constitutional provisions read as follows:", "Article 15", "(Exercise and Limitation of Rights)", "“ ...", "Human rights and fundamental freedoms shall be limited only by the rights of others and in such cases as are provided by this Constitution.", "... ”", "Article 34", "(Right to Personal Dignity and Security )", "“Everyone has the right to personal dignity and security .”", "Article 35", "(Protection of the Right to Privacy and Personality Rights)", "“The inviolability of the physical and mental integrity of every individual, his privacy and his personality rights shall be guaranteed.”", "Article 39", "(Freedom of Expression)", "“Freedom of expression of thought, freedom of speech and public appearance, freedom of the press and other forms of public communication and expression shall be guaranteed. Everyone may freely collect, receive, and disseminate information and opinions.", "... ”", "B. Applicable civil law", "22. Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, provides that such compensation may be awarded in the event of the infringement of a person ’ s personality rights, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify an award. Moreover, where a personality right such as reputation is infringed, by virtue of Article 178 of the Code a court may order that the judgment be published at the respondent ’ s expense, or that the impugned statement be corrected or retracted.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "23. The applicant company complained that the decisions of the domestic courts had violated its right to the freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”", "A. Admissibility", "24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant company", "25. The applicant company pointed out that the Court had already found generally offensive expressions such as “idiot” or “fascist” to be acceptable criticism in certain circumstances. It emphasised in this regard that S.P., a parliamentarian at the time, was a public figure and that the article in issue, which concerned the legal regulation of same-sex relationships, had without a doubt contributed to a debate on an important matter of public concern.", "26. With regard to the context of the controversial statement in issue, the applicant company argued, first of all, that the public debate on the legal acknowledgment of same-sex relationships was subject to constant unfavourable and often discriminatory remarks by right-wing parties, among them the SNP. In the applicant company ’ s view, the impugned statement was a reaction to S.P. ’ s – and his colleagues ’ – discriminatory language and use of homophobic stereotypes. The applicant company considered it unacceptable that the domestic courts had been unwilling to expose the harmful stereotypes for what they were, and had instead used them to justify an interference with its right to freedom of expression. In its view, S.P. must have been aware that his conduct might expose him to harsh criticism by a large sector of the public. Moreover, having regard to the context of the article as a whole, it was of the opinion that the controversial value judgment nevertheless had a sufficient factual basis.", "27. Further, even if the statement in issue could be regarded as objectively defamatory, it was an expression of the author ’ s satirical style, as also acknowledged by the Government. Satirical illustrations of events, people and their statements had been used in many parts of the article, and not only in the paragraph concerning S.P. According to the applicant company, any reader would therefore have been aware that the author ’ s comments contained a degree of exaggeration. In conclusion, the applicant company claimed that the domestic courts had failed to make a proper assessment of the context in which the statement in issue had been written and had disregarded S.P. ’ s own controversial behaviour. In the applicant company ’ s opinion, they had therefore failed to strike a fair balance between its right to freedom of expression and S.P. ’ s right to reputation.", "(b) The Government", "28. The Government acknowledged that the award of damages against the applicant company constituted an interference with its right to freedom of expression, pointing out that the interference had a basis in law – Articles 178 and 179 of the Code of Obligations – and had pursued one of the legitimate aims referred to in Article 10 § 2 of the Convention, namely the protection of the reputation or rights of others. As to the necessity of the interference, the Government argued that the domestic courts had carefully weighed the two conflicting rights, namely the applicant company ’ s right to freedom of expression and S.P. ’ s right to reputation, with due regard to the fact that they could both only be exercised to a limited extent.", "29. As regards the factors considered by the domestic courts in carrying out their balancing exercise, the Government stated, firstly, that the article in issue contained some inaccurate and misleading information. Among other things, the journalist had omitted to mention that S.P. ’ s imitation of a homosexual man picking up a child from school had been accompanied by an explanation to the effect that that child would be made to feel mocked and humiliated. In the Government ’ s view, this last part of S.P. ’ s statement would have contributed to balancing the introductory part and shed a different light on it.", "30. The Government emphasised that the incomplete representation of S.P. ’ s parliamentary speech had gone even further, as the article had contained rude and objectively defamatory remarks about S.P. ’ s character and his personal and intellectual characteristics. They maintained in this connection that even value judgments were required to have a sufficient factual basis. In the present case, such a basis was lacking. Thus, the mere fact that S.P. had opposed the proposed Act, albeit in a possibly unacceptable manner, did not allow any particular conclusion to be drawn about his personal or intellectual characteristics, even though he was a politician and a public figure and as such had to expect to be exposed to more criticism of his work than a private individual.", "31. As regards the applicant company ’ s argument that the critical article had been a reaction to S.P. ’ s inappropriate conduct, which had been ignored by the domestic courts, the Government pointed out that S.P. ’ s speech had in fact been subject to an assessment by the courts. The first-instance court had examined the video footage of S.P. ’ s parliamentary speech and had qualified it as an imitation of the gestures and speech of a same-sex - oriented male. According to that court, his words were not to be understood as promoting prejudice and inciting people against same-sex - oriented individuals, but rather as simply expressing his own, albeit negative, views on those individuals. Moreover, the article had been published five days after the parliamentary debate, so its author had had sufficient time to distance himself from the event and report on the debate in the manner duly expected of him.", "32. Further, as to the applicant company ’ s assertion that its article was satirical in style, the Government referred to the decision of the Constitutional Court, according to which, while certain parts of the article had been written in such a style, as a whole the aim of the article had been to inform the public about the parliamentary debate on the proposed Act, the participants in the debate, the voting, and so on.", "33. In conclusion, the Government pointed out that the case involved no criminal prosecution, but only a civil claim for damages. S.P. had been awarded EUR 2,921.05 and the applicant company had been ordered to publish the introductory and operative part of the judgment in its magazine. In the Government ’ s opinion, payment of damages and publication of the judgment could not be considered to be an excessive burden on the applicant company.", "2. The Court ’ s assessment", "34. The Court considers, and this is not disputed between the parties, that the domestic courts ’ decisions complained of by the applicant company amounted to an “interference” with the exercise of its right to freedom of expression.", "35. Such an interference will infringe the Convention if it does not meet the requirements of Article 10 § 2. It must therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in Article 10 § 2, and whether it was “necessary in a democratic society” in order to achieve those aims.", "(a) Lawfulness and legitimate aim", "36. The Court finds that the interference complained of was prescribed by law, namely Articles 178 and 179 of the Code of Obligations, and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely, to protect “the reputation or rights of others”.", "( b ) Necessity of the interference", "37. It remains for the Court to consider whether the interference was “necessary in a democratic society”.", "38. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999 ‑ I). The Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997 ‑ VII).", "39. In the present case, the applicant company published in its magazine an article harshly criticising S.P., who was at the time a parliamentary deputy, for his remarks and, in particular, conduct during a parliamentary debate on the legal regulation of same-sex relationships. The statement in issue was thus made in the press, which has been held by the Court to play an essential role in a democratic society. Although journalists are required to respect certain boundaries, in particular with regard to the reputation and rights of others, their duty is nevertheless to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest (see, among many other authorities, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003 ‑ XI).", "40. Moreover, the impugned statement was made in the context of a political debate on a question of public interest, where few restrictions are acceptable under Article 10 § 2 of the Convention (see, among many other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV), and was directed against a politician. The Court has emphasised on many occasions that a politician must in this regard display a greater degree of tolerance than a private individual, especially when he himself makes public statements that are susceptible of criticism (see, among many other authorities, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; Oberschlick v. Austria (no. 2), 1 July 1997, § 29, Reports 1997 ‑ IV; and Lopes Gomes da Silva v. Portugal, no. 37698/97, § 30, ECHR 2000-X). In this connection, the Court reiterates that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation, or in other words, somewhat immoderate statements (see Lopes Gomes da Silva, cited above, § 34, and Mamère v. France, no. 12697/02, § 25, ECHR 2006 ‑ XIII).", "41. The Court notes that the domestic courts acknowledged the importance of the applicant company ’ s freedom of expression and its right to publish critical comments about S.P. (see paragraphs 12 and 17 above). However, they were of the view that the characterisation of S.P. ’ s parliamentary contribution as “typical attitude of a cerebral bankrupt” constituted an offensive judgment of his personality and thus exceeded the boundaries of permissible criticism.", "42. In the Court ’ s view the reasons adduced by the domestic courts were relevant for the purposes of the necessity test to be applied under Article 10 § 2. It will next examine whether they were also sufficient.", "43. In this regard, the Court reiterates that the domestic decisions must be reviewed in the light of the case as a whole, including the content of the comments held against the applicant company and the context in which it made them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I). The Court agrees that describing S.P. ’ s conduct as that of a “ cerebral bankrupt ” who, in a country with less limited human resources, would not even be able to find work as a primary school janitor, was indeed extreme and could legitimately be considered offensive. However, it is noted that the impugned remark was a value judgment, as acknowledged by the Government. It is true that in the absence of any factual basis even value judgments can be considered excessive. Nevertheless, in the present case the facts on which the impugned statement was based were outlined in considerable detail; with the exception of his concluding remark, S.P. ’ s parliamentary speech was quoted almost in its entirety, along with a mention of his accompanying imitation of a homosexual man. This description was followed by the author ’ s commentary which, in the Court ’ s opinion, was not only a value judgment, but also had the character of a metaphor. In the context of what appears to be an intense debate in which opinions were expressed with little restraint (see paragraphs 7 and 8 above), the Court would interpret the impugned statement as an expression of strong disagreement, even contempt for S.P. ’ s position, rather than a factual assessment of his intellectual abilities. Viewed in this light, the description of the parliamentarian ’ s speech and conduct can be regarded as a sufficient foundation for the author ’ s statement.", "44. Moreover, the controversial statement was construed as a counterpoint to S.P. ’ s own remarks. In his speech, S.P. followed the line of other members of his party and portrayed homosexuals as a generally undesirable sector of the population, whether as children, same-sex couples or parents. In order to reinforce his point, he imitated a homosexual man through the use of specific gestures which, according to the domestic courts, were reminiscent of gestures used by actors to portray homosexuals. The Court, however, considers that S .P. ’ s imitation may be regarded as ridicule promoting negative stereotypes.", "45. Lastly, the Court observes that, at least in the part which included the statement in issue aimed at S.P., the article matched not only the latter ’ s provocative comments, but also the style in which he had expressed them. The author ’ s critical opinions were coloured by a number of evocative, exaggerated expressions. Having already held that Article 10 protects both the content and the form of expression (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204), the Court considers that even offensive language, which may fall outside the protection of freedom of expression if its sole intent is to insult, may be protected by Article 10 when serving merely stylistic purposes (see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 48, 21 February 2012).", "46. In the Court ’ s opinion the context in which the impugned statement was made, and the style used in the article were not given sufficient consideration by the domestic courts. Viewed in the light of these two factors, the Court considers that the statement did not amount to a gratuitous personal attack on S.P. Moreover, in this regard the Court also points out that political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society (see Lopes Gomes da Silva, cited above, § 34).", "47. In the light of the above, the Court considers that the domestic courts did not convincingly establish any pressing social need for placing the protection of S.P. ’ s reputation above the applicant company ’ s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. The Court thus concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant company ’ s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. Moreover, this conclusion cannot be affected by the fact that the proceedings complained of were civil rather than criminal in nature.", "48. Accordingly, the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.", "49. There has therefore been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "51. The applicant company claimed 2, 921. 05 euros (EUR) in respect of pecuniary damage, the amount of the sum it had been ordered to pay to S.P. in the domestic proceedings. Moreover, it claimed EUR 10, 000 in respect of non-pecuniary damage on account of damage to its reputation incurred as a result of the outcome of the domestic proceedings.", "52. The Government did not raise any objection to the payment of the sum claimed with regard to pecuniary damage in the event that a violation of the Convention was found. However, they objected to the sum claimed with regard to non-pecuniary damage, arguing that it was excessive in view of the Court ’ s case-law in similar cases.", "53. The Court is satisfied that there is a causal link between the applicant company ’ s claim in respect of pecuniary damage and the violation found. Hence, it considers it appropriate to award the applicant company the entire sum claimed with regard to pecuniary damage, plus the statutory interest applicable under domestic law, running from the date when the applicant company paid it (see Tuşalp v. Turkey, cited above, § 57). However, the Court considers that in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction in respect of any non-pecuniary damage.", "B. Costs and expenses", "54. The applicant company also claimed EUR 4,026.29 for the costs and expenses incurred before the domestic courts, and EUR 1,824 for those incurred before the Court.", "55. The Government disputed the amount of costs and expenses actually incurred in the domestic proceedings. Moreover, they considered that the costs for legal representation were not supported by sufficient documents.", "56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the entire amount claimed by the applicant company in respect of the domestic proceedings and the proceedings before the Court.", "C. Default interest", "57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first and second applicants, Mr Andrzej Stankiewicz and Ms Małgorzata Solecka, were born in 1974 and 1970 respectively and live in Piaseczno-Józefosław and Kraków. The third applicant, Presspublica sp. z o. o. is a limited liability company having its registered office in Warsaw. The company is the publisher of the daily newspaper “Rzeczpospolita” where the first and second applicants worked as journalists.", "A. Civil proceedings instituted by W.D.", "6. It appears that A.F., the chief executive of the Polish branch of M.S.D. Inc. (“M.S.D.”), a large pharmaceutical company, approached journalists of the daily newspaper “Rzeczpospolita”. He informed them on condition of anonymity that the company had received a proposal to “arrange” the placement of its drug on the list of refunded drugs in exchange for a bribe.", "7. On 12 May 2003 “Rzeczpospolita” published on the front and fourth pages an article entitled “ Drugs for millions of dollars ” ( “Leki za miliony dolarów” ), written by the first and second applicants. The subtitle read: “A pharmaceutical company asserts that the Head of the Private Office of the Minister of Health demanded a large bribe ” ( “koncern farmaceutyczny twierdzi, że szef gabinetu politycznego ministra zdrowia żądał dużej łapówki” ).", "8. The journalists alleged that in the summer of 2002 W.D., the Head of the Private Office of the Minister of Health ( Szef Gabinetu Politycznego Ministra Zdrowia ) had demanded a bribe from representatives of a pharmaceutical company, offering in return his assistance in having a drug manufactured by the company placed on the list of drugs refunded within the framework of the national health care scheme.", "9. In the article, the applicants recounted the circumstances of two meetings which had taken place in Warsaw restaurants. They were attended by W.D., B.O. – director of a private osteoporosis clinic and W.D. ’ s friend, as well as two representatives of the pharmaceutical company – Ł.Z. and H.M.N. The meetings had been devoted to the plan to set up jointly, by the two companies, a network of osteoporosis clinics in Poland.", "10. The relevant parts of the article read:", "“W.D., the Head of the Private Office of M.Ł. [ Minister of Health], demanded a multi-million dollar bribe, offering his assistance in placing drugs on the list of refunded drugs – asserts foreign pharmaceutical company. W.D. rejects these allegations, and M.Ł. [the Minister] does not believe the version of events presented by the company. ...", "“It is the first such obvious case of a corruption proposal which has happened to me” – asserts the representative of the company. W.D. admits that he twice met the representatives of the company, but denies that he demanded money from them. ...", "Companies are keen to have their drugs placed on the list [of refunded drugs]. Why? Because the State pays part of their price so they are cheaper and more accessible to patients. It has been known for years that decisions concerning registration and placement of drugs on the list of refunded drugs were accompanied by “informal payments”. However, up to now the representatives of the pharmaceutical companies have never directly admitted that they were asked for a bribe. ...", "According to the director of the pharmaceutical company, W.D. was trying to convince [them] that the osteoporosis clinic [of B.O.] was a serious project. ... “He [W.D.] offered us cooperation and demanded a one-off rapid payment of 1.5 million dollars and then annual payments of 1-1.5 million. Money was to be spent on “infrastructure””.", "11. The journalists sought comments from W.D. before the publication of the article. They put to him questions about his presence as a high-ranking State official at a business meeting between two companies. W.D. initially denied that he had participated in it. However, two days later he recalled that he had in fact participated in the second meeting. Contrary to his earlier assertions, he also stated that the issue of the list of refunded drugs had been discussed at the meeting but at the initiative of the pharmaceutical company. Eventually, W.D. admitted that his participation at the meetings had been inappropriate and stated that he had felt uncomfortable in his role of an official.", "12. The Minister M. Ł. refused to speak to the journalists. In his written statement he asserted that W.D. ’ s participation at the meetings had not been inappropriate and that he did not believe the version of events as presented by the pharmaceutical company.", "13. The journalists included in the article critical comments made by A.N., the Deputy Minister of Health responsible for drugs policy at the relevant time. A.N. stated that “W.D. was not authorised to participate at such meetings. It is not the role of the Head of the Private Office.” He also stated that “The Head of the Private Office should not be dealing with his business future in the course of carrying out his official duties”.", "14. The article also included a report on the career of W.D. entitled “Doctor, businessman, official”. It described, inter alia, his activities in the Mazowiecki branch of the Alliance of the Democratic Left ( Sojusz Lewicy Demokratycznej ) and his association with M. Ł ., the future Minister of Health. On the recommendation of his party W.D. was appointed a member of the Board of the Mazowiecki Health Insurance Fund ( Mazowiecka Kasa Chorych ). After the parliamentary elections in the autumn 2001, won by the Alliance of the Democratic Left, W.D. together with the Minister of Health M.Ł. and the Deputy Minister A.N. became one of the most influential figures in the health ministry to the exclusion of three other deputy ministers. In September 2002 W.D. suddenly resigned from his position as the Head of the Private Office of the Minister.", "15. On 22 May 2003 W.D. lodged a civil action with the Warsaw Regional Court against the applicants for infringement of his personal rights. He demanded that the defendants publish an apology and further sought 500,000 Polish zlotys (PLN) in compensation for non-pecuniary damage. Subsequently, he modified the latter claim and sought instead 50,000 PLN to be paid to a charity. W.D. submitted that the information about the alleged request for a bribe in exchange for the placement of a drug on the list of refunded drugs had been misleading and untrue. The newspaper ’ s allegations against W.D. had been based on unverified information originating from the representatives of the pharmaceutical company.", "16. The applicants argued that the version of events presented in the article was credible and that they had observed due diligence in gathering information for their article. They further argued that the disclosure of the facts presented in the article had been justified in the public interest.", "17. During the proceedings, the Warsaw Regional Court heard several witnesses, including the participants at the business meetings, i.e. B.O., H.M.N., Ł.Z., the claimant W.D. as well as A.F. and the journalists.", "18. Ł.Z., an employee of the pharmaceutical company, testified that the meetings had been devoted to M.S.D. Inc. ’ s possible involvement in the project of setting up a network of osteoporosis clinics in Poland. This involvement, according to the expectations of B.O. ’ s company, was to be limited to making a payment of approximately PLN 400,000, i.e. approximately between USD 100,000 and USD 150,000, to a given bank account. According to Ł.Z. ’ s testimony, this proposal was not accepted by M.S.D. Inc., whose participation in the project was thereby terminated. Ł.Z. further testified that while indeed the participants had also talked about the possibility of placing a certain drug on the list of refunded drugs, there had been in fact no causal link between the two matters.", "19. H.M.N., the finance director of the pharmaceutical company, testified that he had met W.D. and B.O. to discuss the same project. W.D. had introduced himself as a person representing a group which had been interested in the project. According to H.M.N., he expressed his surprise that the representative of the Government would be interested in the project involving a drug which had not been placed on the list of refunded drugs. At that point W.D. had stated that he would look into this issue. H.M.N. further stated that from the company point of view “there had been no connection between the project and the placement of the drug on the list”. The pharmaceutical company refused to participate financially in the project on the terms proposed by W.D. and B.O.", "20. A.F., the chief executive of the company, testified that the participants at the meetings had discussed the project of setting up a network of clinics treating osteoporosis. He was informed by two of his employees present at the meeting that W.D. had proposed to the company to invest a certain amount in that project. According to A.F., W.D. had also discussed the issue of placement of the company ’ s drug used for treating osteoporosis on the list of refunded drugs. He considered that the two issues, namely the financial investment in the project and the placement of the company ’ s drug on the list were interconnected. He understood, basing himself on the information from his employees, that if the company had decided to invest in the project then the placement of its drug on the list of refunded drugs would have been possible.", "21. B.O., director of a private osteoporosis clinic and friend of W.D., stated that the participants had discussed osteoporosis and the setting up of a network of clinics treating that illness. According to B.O., Ł.Z. had requested a meeting with W.D. and he had arranged it accordingly. B.O. denied that the participants at the meeting had discussed the issue of the placement of the company drug on the list of refunded drugs or that W.D. had demanded a bribe.", "22. By a judgment of 17 June 2005 the Warsaw Regional Court dismissed W.D. ’ s claim.", "23. The court established that in their article the applicants, besides their critical assessment of the Ministry of Health ’ s decision-making process concerning the registration and placement of drugs on the list of refunded drugs, described the events related by the anonymous representatives of the Polish branch of one of the large pharmaceutical companies. Their article was also based on the information received from A.N. (the Deputy Minister of Health), B.O., W.D. and the statement received from the Minister of Health. The assertions of the representatives of the pharmaceutical company were confronted with the statements of W.D. The journalists further presented W.D. ’ s professional and political career. In the article they pointed to specific contradictions and ambiguities in W.D. ’ s account of his meetings with the representatives of the pharmaceutical company. The article presented the claimant who was a high-ranking official in a negative light, but the readers were offered two versions of the relevant events and could make their own assessment of it. It was undisputed that W.D. had met twice in restaurants with H.M.N. and Ł.Z., the representatives of the American pharmaceutical company M.S.D. Inc. and introduced himself as the Head of the Private Office of the Minister of Health.", "24. The Regional Court further established that W.D. assisted at the meetings with B.O., his friend and the owner of the Mokotów Osteoporosis Centre. The participants discussed the possibility of a joint undertaking of the two companies in developing a network of osteoporosis clinics in Poland. The pharmaceutical company was interested in the placement of its drug for the treatment of osteoporosis on the Ministry ’ s list of refunded drugs. The parties discussed the organisational and financial details of the joint project as well as the issue of the pharmaceutical company ’ s difficulties in securing the placement of its drug on the list. Eventually, the joint project failed because the pharmaceutical company had not accepted the financial terms of the Polish company. A.F. and H.M.N., respectively the chief executive and finance director of the Polish branch of M.S.D. Inc. approached the press and informed the journalists that W.D. had demanded from their company a bribe in exchange for the placement of the company ’ s drug on the list.", "25. Two journalists, M. Solecka, who specialised in the public health issues, together with A. Stankiewicz became interested in the story. Before publishing the article, the journalists had spoken to A.F., H.M.N., B.O. and W.D. as well as high-ranking officials in the Ministry of Health in order to verify their information. A.F., the chief executive of the pharmaceutical company was considered by the journalists as a reliable source, especially as he had undertaken to confirm his story before the court if necessary. The court further noted that the version of events presented to the applicants by A.F. and H.M.N. had been consistent, while the version presented by W.D. had been varying and proved inaccurate upon verification. Faced with divergent accounts, the journalists decided to present two versions of the meetings between the parties. M. Solecka had observed for years irregularities in the process of placement of drugs on the list of refunded drugs and received anonymous information about them.", "26. The Regional Court considered that the testimonies of A.F., H.M.N. and Ł.Z. in respect of the course of the meetings were in principle similar. Witness Ł.Z. stated that the claimant (W.D.) had undertaken to check the list of refunded drugs and the chances of placing on it the drug manufactured by M.S.D. The parties had also discussed the need for the pharmaceutical company to make a quick decision about the transfer of money to an indicated bank account to which the finance director had firmly objected and thus M. S. D. pulled out of the joint project.", "27. The Regional Court found that part of the article contested by W.D. had corresponded to the version of events presented to the journalists by the directors of M. S. D. In view of the consistency of the directors ’ account and the lack of coherent explanation as to the course of the meetings by W.D. and B.O. the journalists could consider the former as a reliable source. Moreover, the court expressed a view that the mere fact of W.D. ’ s participation in the business meeting between two companies, during which he had introduced himself as a Ministry official, had placed him in an ambiguous and awkward situation and lent credibility to the account of the directors of M. S. D. In these circumstances the Regional Court held that the impugned article had been based on reliable and verified information. The accounts of the representatives of the M. S. D. and of W.D. had been accurately reported. It was further no doubt that the article had dealt with issues of public interest, namely corruption.", "28. The court held that the article had infringed the personal rights of W.D. However, it found that the applicants ’ conduct had not been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act because the journalists had shown sufficient diligence in gathering and publishing the information and acted in accordance with the professional ethics. It noted that the information that the applicants had had at their disposal before the publication of the article had been sufficiently reliable to justify the allegation made in the article. Lastly, the court noted that the journalist had not been required to prove the truthfulness of their allegations in order to demonstrate the lack of unlawfulness in their actions.", "29. W.D. appealed against the judgment and dropped his pecuniary claims. He argued that the journalists had largely based their conclusions on the version of events presented to them by A.F., and that the latter had deliberately sought to disparage him with a view to having the drug manufactured by M.S.D. Inc. placed on the list of refunded drugs. He further argued that A.F. had not in fact participated in the meeting at which the alleged offer of a bribe had been made, and thus his version of events could not be regarded as reliable. He further contended that while preparing the article the journalists had failed to question Ł.Z., who had served during the meeting as an interpreter of his conversations with H.M.N. He stressed that he spoke no English and H.M.N. did not speak or understand Polish, making any direct conversation between them impossible.", "30. By a judgment of 11 October 2006 the Warsaw Court of Appeal allowed the appeal.", "31. The Court of Appeal concurred with the lower court that W.D. ’ s personal rights had been infringed. It noted that the allegation levelled against the claimant that a high- ranking public official had demanded a bribe for securing a placement of the drug on the list of refunded drugs amounted to a criminal offence. The allegation that a person had committed or attempted to commit an offence amounted to a flagrant violation of one ’ s reputation.", "32. The Court of Appeal, leaving aside the question of the truthfulness of the allegation raised, concentrated its analysis on whether the journalists had respected the special diligence required of them under the Press Act in order to rebut the presumption of unlawfulness of the infringement of W.D. ’ s personal rights. It referred to the case-law of the Supreme Court (the Supreme Court ’ s judgments of 14 May 2003, case no. I CKN 463/01, and of 18 February 2005, case no. I CKN 463/01) which held that in order to rebut the said presumption of unlawfulness it was sufficient to establish that a journalist had acted with requisite diligence, and that it was not necessary to prove the truthfulness of the allegations raised. Contrary to the lower court, the Court of Appeal found that the journalists had failed to observe special diligence in the preparation of their article.", "33. It noted, first and foremost, that while preparing their article the applicants had failed to question Ł.Z., while the latter ’ s version of events had been crucial, given that W.D. and H.M.N. had relied on his interpretation to understand each other. The Court held that the journalists ’ failure to acquaint themselves with Ł.Z. ’ s version of events – given that there had been only four participants at the meeting – amounted to a cardinal error and clearly demonstrated that they had failed to observe due diligence. The court further noted that the version of events presented by A.F., the company ’ s chief executive, to the journalists had been essentially based on summary information concerning the meetings, given to him by H.M.N. and Ł.Z., and thus might have been inaccurate due to possible translation mistakes. The journalists had not attempted to confirm whether the latter ’ s version of events had corresponded to the version of Ł.Z., but on the other hand they had spoken to persons (certain members of parliament) who had not had much in common with the issues raised in the article.", "34. The Court of Appeal observed that the reliability of A.F. was open to doubt. In this regard, it noted that the chief executive had clearly not wished that the journalists speak to Ł.Z. and that he had contacted the press only a few months after the impugned events had occurred. Furthermore, the list of refunded drugs for 2003 was only published in January of that year, while Ł.Z. had met the claimant in December 2002, on the instructions of A.F., to discuss the placement of the company ’ s drug on the list. The court noted that it could be concluded from that that if the company ’ s drug had been included on the Ministry ’ s list, then A.F. would not have disseminated the information which was the subject of the article.", "35. The Court of Appeal also held that the first-instance court had erroneously assessed the testimonies of certain witnesses and concluded that the information that the applicants had had at their disposal before publication was insufficient for making the allegations of corruption against W.D. It was confirmed that B.O. had met with the representatives of M. S. D. to discuss the project of the network of osteoporosis clinics. This project was at the early stage but it was agreed that the financial contribution of M. S. D. would be in the region of 1-1.5 million USD. The parties did not agree on the form of this contribution. M. S. D. envisaged it in the form of supplying equipment and premises but did not accept the proposal of the Polish company to make a transfer of the above amount to an account of some unspecified company. According to the Court of Appeal it was only A.F. who had linked the demand to make the above payment with the issue of the list of refunded drugs. Witness H.M.N. stated that “there had been no connection between the project concerning osteoporosis clinics and the placement of the drug on the list”, while Ł.Z. denied that there had been any correlation between the two issues. Ł.Z. asserted that neither the claimant nor anyone else had proposed to have the drug placed on the list in exchange for a bribe. Accordingly, the court found that the witnesses ’ testimonies did not confirm the truthfulness of the allegations made by the journalists.", "36. In conclusion, the Court of Appeal held that the applicants ’ conduct had been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act and infringed the claimant ’ s reputation and trust that was necessary in the exercise of his public duties.", "37. The applicants were ordered to publish an apology in their newspaper, which the Court of Appeal worded as follows:", "“M.S. and A.S. [the first and second applicants], the authors of the article “ Drugs for millions of dollars”, published in the newspaper “Rzeczpospolita” of 12 May 2003, as well as the publisher of this newspaper, Presspublica sp. z o.o., hereby declare that by including in the article the statement to the effect that W.D. had offered to place a drug on the Minister of Health ’ s list of refunded drugs in return for a multi-million bribe, they infringed W.D. ’ s personal rights by exposing him to a loss of good reputation and trust necessary to pursue his public and professional activity and for that they present their apology.”", "38. The applicants were also ordered to pay PLN 4,400 ( 1,100 euros (EUR) ) in court fees and to reimburse the costs of PLN 6,230 (EUR 1,550) to W.D.", "39. The applicants lodged a cassation appeal against the judgment. They argued, inter alia, that their conduct had not been unlawful, as they had observed due diligence in gathering the material for their article and the information obtained from the persons that they had questioned before publication had been sufficiently reliable. Further, they submitted that it was their right and duty as journalists to publish an article about the issue of corruption and that they had acted in the public interest.", "40. By a judgment of 13 April 2007, the Supreme Court dismissed the cassation appeal, holding that the applicants ’ conduct had in fact been unlawful. In doing so, the Supreme Court based its findings largely on the conclusions reached by the Warsaw Court of Appeal. It concurred with that court that the evidence in the case, in particular the testimonies of the witnesses, had not made it possible to establish that in the course of the negotiations concerning investment in osteoporosis clinics the claimant or anyone else had demanded a bribe with a view to securing the placement of the drug manufactured by the company on the list of refunded drugs. The Supreme Court ’ s judgment was served on the applicants on 20 June 2007.", "B. Criminal proceedings against W.D.", "41. Following the publication of the article, on 22 May 2003 the Warsaw Appellate Prosecutor Office ( Department for the Organised Crime) opened an investigation in the case concerning a bribe-taking by a government official.", "42. On 17 March 2004 the Warsaw Appellate Prosecutor charged W.D. with bribery in that W.D., as a public official, had demanded not less than 1.200.000 PLN from the pharmaceutical company in order to finance a network of osteoporosis clinics. The prosecutor alleged that W.D. jointly with the representative of the Mokotów Osteoporosis Centre had negotiated the project with the M. S. D. He had also participated in the registration in July 2002 of the limited liability company “Woman +50” which was subsequently intended to manage the network of clinics.", "Secondly, W. D. was charged with procurement fraud. The prosecutor alleged that W.D., as a deputy Chairman of the Board of the Mazowiecki Health Insurance Fund and the chief executive of the company “Woman +50”, had submitted false documents to the Mazowiecki Health Insurance Fund in order to secure contracts for the company. The prosecutor imposed preventive measures on W.D., namely a ban on leaving the country and ordered him to put up bail of PLN 200,000.", "43. On 17 January 2007 the Warsaw Appellate Prosecutor discontinued the proceedings against W.D. in respect of the charge of bribery for lack of sufficient evidence that he had committed the impugned offence." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant constitutional provisions", "44. Article 14 of the Constitution provides as follows:", "“The Republic of Poland shall ensure freedom of the press and other means of social communication.”", "Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:", "“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”", "Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:", "“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”", "B. The Civil Code", "45. Article 23 of the Civil Code contains a non-exhaustive list of “ personal rights” ( dobra osobiste ). This provision states:", "“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”", "Article 24 § 1 of the Civil Code provides:", "“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”", "C. The Press Act", "46. In accordance with section 12 § 1 (1) of the Press Act a journalist is under the duty to act with particular diligence in gathering and using the information, and, in particular, to verify the truthfulness of obtained information.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "47. The applicants complained that the judgments given in their case had interfered with their right to freedom of expression and that the interference could not be regarded as necessary in a democratic society. They relied on Article 10 of the Convention which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The applicants ’ submissions", "49. The applicants averred that their article concerned a matter of public interest. They were informed by a very reliable source, namely the chief executive of the Polish branch of one of the world largest pharmaceutical companies that the company had received a proposal to arrange the placement of its drug on the list of refunded drugs in exchange for a bribe. A.F. had asserted that the proposal had been made by W.D., the Head of the Private Office of the Minister of Health. The applicants emphasised that W.D., a Government official had decided to conduct official talks with the representatives of an international pharmaceutical company not in his office but in town. During the meeting W.D. had introduced himself as a Ministry official and handed his business card.", "50. Before writing their article, the applicants had spoken with A.F., the chief executive and H.M.N., the finance director of the company who had participated in the meetings. They had also obtained a written statement from the Minister of Health. In their view, the information at their disposal before the publication of the article had been sufficiently reliable to reach the conclusion presented in it.", "51. The applicants asserted that the discontinuation of the investigation against W.D. for lack of evidence to support the charge was not a decisive factor and did not point to the lack of diligence on their part. Their article was published on 12 May 2003 and on 17 March 2004 the Warsaw Appellate Prosecutor charged W.D. with bribery and procurement fraud. The prosecutor imposed preventive measures on W.D., namely a ban on leaving the country and ordered him to put up a bail. The criminal proceedings against W.D. lasted nearly three years and the charges were serious enough to justify the imposition of preventive measures. The discontinuation of the investigation against a politician which took place after the publication did not demonstrate that the journalist who had levelled certain allegations had published false information for which s/he should be sanctioned. The obligation incumbent on journalist could not be interpreted as a simple obligation to publish only “true” information. It should be borne in mind that journalists had only limited resources at their disposal. The press fulfilled an essential role in a democratic society and had a duty to impart information on all matters of public interest.", "52. The applicants disagreed with the argument that their failure to seek information from Ł .Z. had amounted to lack of due diligence on their part. They underlined that their source of information was the chief executive of a pharmaceutical company and that his information had been confirmed by H.M.N., a participant to the meeting. They had further obtained statements from W.D. and B.O. and spoken to some members of parliament. They did not speak to Ł.Z. because they had suspicion that he had acted for both parties (the pharmaceutical company and W.D.) and thus could not be treated as a reliable source. Moreover, he was not an active participant in the meetings. Ł.Z. was an employee of the company who presented summary information concerning the meetings to the chief executive and it was clear to the applicants that A.F. was the most competent person to provide them with information.", "53. The applicants also submitted that the impugned statements in the article, which they accurately reported, had been made by the chief executive and not by the journalists themselves. The applicants had not made any corruption allegations against W.D. but only referred the statement of the chief executive. In this respect they relied on the judgment Thoma v Luxembourg. In the applicants ’ view, the interference complained of was not necessary in democratic society and the authorities did not give relevant and sufficient reasons to justify it.", "2. The Government ’ s submissions", "54. The Government maintained that the interference with the applicants ’ right to freedom of expression was in accordance with Article 10 of the Convention. It was prescribed by law ( Articles 23 and 24 of the Civil Code) and pursued the legitimate aim of protection of the reputation or the rights of others.", "55. With regard to the necessity for the interference, the Government submitted that the allegations made by the applicants against W.D. were factual statements. They referred, inter alia, to the following passages from the article: “ the pharmaceutical company claims that the Head of the Private Office of the Minister of Health demanded a large bribe ” and “ W.D., the Head of the Private Office of M. Ł ., demanded a multi-million dollar bribe, offering assistance in placing drugs on the list of refunded drugs – claims the foreign pharmaceutical company ”. The assessment of the above statements should be conducted in terms of their truthfulness. With regard to the factual statements, the requirement for the journalists to prove that the allegation was substantially true was not contrary to the Convention. The Government recalled that the Warsaw Court of Appeal and the Supreme Court found that the testimonies of witnesses Ł .Z., B.O. and H.M.N. had not confirmed that the allegations made by the applicants had been true.", "56. The Government submitted that the allegation made by the applicants had been of a very serious nature as it concerned the corruption offer made by a prominent State official. Such an act constituted a crime under Article 228 § 1 of the CC punishable by up to eight years ’ imprisonment. However, the applicants did not act with due diligence and failed to comply with the ordinary journalistic obligation to verify this factual allegation.", "57. First of all, the applicants did not collect sufficiently accurate and reliable information and did not consult with all the relevant sources which were available to them. Mainly, they had failed to question Ł .Z. who had been one of only four participants to the meetings at which the alleged corruption proposals had been made. Ł.Z. had been serving as an interpreter between W.D. and B.O who spoke only Polish and H.M.N. who spoke English. They also failed to observe due diligence in their assessment of A.F. ’ s statements despite the fact that he had not participated in the meetings and relied on the information provided by Ł.Z. and H.M.N. The applicants did not question the fact that A.F. had not wanted them to speak to Ł.Z.", "58. Secondly, with regard to the applicant ’ s assertion that at the time of publication it was impossible for them to verify the truthfulness of the allegations, the Government stressed that the domestic courts had examined this issue and found that the information at the applicants ’ disposal had been insufficient to make the allegation of corruption. The Supreme Court stated that it was obvious that the applicants had not had the same resources as the authorities; however they had been obliged to act with requisite diligence in order to rebut the unlawfulness of their allegations. It further noted that “when the circumstances indicated a higher probability of inaccuracy in the submissions of persons who were the source of information for the journalist, a particularly meticulous verification of the truthfulness of the allegations was necessary”.", "59. The Government further maintained that the domestic courts had given relevant and sufficient reasons for their decisions. The sanctions imposed on the applicants were proportionate as they had been held liable only under the civil law. The applicants were ordered to publish an apology and to pay the costs of the claimant and the court fees. They did not have to pay compensation. In the Government ’ s view, the domestic courts struck a fair balance between the restriction of the applicants ’ freedom of expression and the protection of W.D. ’ s reputation.", "3. The Court ’ s assessment", "60. It was common ground between the parties that the domestic courts ’ decisions complained of by the applicants amounted to “interference” with the exercise of their right to freedom of expression. The Court also finds that the interference complained of was prescribed by law, namely Articles 23 and 24 of the Civil Code, and pursued the legitimate aim referred to in Article 10 § 2 of the Convention, namely “the protection of the reputation or rights of others”.", "61. It remains to be established whether the interference was “necessary in a democratic society”. This determination must be based on the following general principles emerging from the Court ’ s case ‑ law (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88 ‑ 91, ECHR 2004 ‑ XI, with further references):", "(a) The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "(b) The Court ’ s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them.", "(c) In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10.", "(d) The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.", "62. However, Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and relating to politicians or public officials. Under the terms of its second paragraph, the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III; Kasabova v. Bulgaria, no. 22385/03, § 63, 19 April 2011).", "63. In previous cases, when the Court has been called upon to decide whether to exempt newspapers from their ordinary obligation to verify factual statements that are defamatory of private individuals, it has taken into account various factors, particularly the nature and degree of the defamation and the extent to which the newspaper could have reasonably regarded its sources as reliable with regard to the allegations ( Bladet Tromsø and Stensaas, cited above, § 66). These factors, in turn, require consideration of other elements such as the authority of the source ( Bladet Tromsø and Stensaas, cited above), whether the newspaper had conducted a reasonable amount of research before publication ( Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper presented the story in a reasonably balanced manner ( Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000 ‑ IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves ( Bergens Tidende and Others, cited above, § 58). Hence, the nature of such an exemption from the ordinary requirement of verification of defamatory statements of fact is such that, in order to apply it in a manner consistent with the case-law of this Court, the domestic courts have to take into account the particular circumstances of the case under consideration. If the national courts apply an overly rigorous approach to the assessment of journalists ’ professional conduct, the latter could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings not only on the individual cases before them but also on the media in general (see Kasabova, cited above, § 55 and Yordanova and Toshev v. Bulgaria, no. 5126/05, § 48, 2 October 2012 ).", "64. An additional factor of particular importance in the present case is the vital role of “public watchdog” which the press performs in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities ‑ information and ideas on political issues and on other matters of general interest (ibid., § 93, with further references). The Court must apply the most careful scrutiny when the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, among other authorities, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 88, ECHR 2007 ‑ III).", "65. The matters discussed in the applicants ’ article concerned issues of public interest, namely allegations of improper conduct of W.D., a high ‑ ranking official of the Ministry of Health. The article described W.D. ’ s involvement in the negotiations with the representatives of a pharmaceutical company where he had allegedly requested a financial advantage. The wider context of the article dealt with the issue of irregularities in the process related to placement of drugs on the list of refunded drugs.", "66. At the material time W.D. held the position of the Head of the Private Office of the Minister of Health. Appointment to and dismissal from this position depended entirely on the discretion of the Minister. It further appears from the article that W.D. was a member of the regional branch of the Alliance of the Democratic Left and a close associate of the Minister of Health M. Ł. The limits of acceptable criticism are wider with regard to a person holding a public office than with regard to a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see, among other authorities, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004 ‑ XI; Mamère v. France, no. 12697/03, § 27, ECHR 2006 ‑ XIII).", "67. In the present case the Court of Appeal found that the applicants had infringed the personal rights of W.D. by having alleged that he had offered to a pharmaceutical company to place its drug on the list of refunded drugs in return for a significant bribe. The Supreme Court confirmed the Court of Appeal ’ s judgment.", "68. The domestic courts ’ analysis focused on the issue of special diligence required of journalist in order to rebut the presumption of unlawfulness of the infringement of personal rights. They referred to the case-law of the Supreme Court which held that in order to rebut the above presumption of unlawfulness it was sufficient to establish that a journalist had acted with requisite diligence and that s/he was not required to demonstrate the truthfulness of the allegations raised (see paragraph 32 above). In the instant case, the first-instance court (the Regional Court) found that the applicants had shown sufficient diligence in the preparation of their article, while the two higher courts reached the opposite conclusion.", "69. The Court recalls that in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and in good faith becomes paramount (see Flux v. Moldova (no. 7), no. 25367/05, § 41, 24 November 2009; Kasabova, cited above, § 63 in fine; Ziembiński v. Poland, no. 46712/06, § 53, 24 July 2012; and Yordanova and Toshev, cited above, § 55).", "70. The Court of Appeal considered that the applicants had not acted professionally because their allegations against W.D. had not been sufficiently researched. It reproached the applicants essentially for their failure to speak to Ł .Z. who had been one of the four participants at the meetings and the one who had served as an interpreter. It emphasised that the journalists relied on the story of A.F. (the chief executive) while his knowledge had been based on account of the meetings given by Ł.Z. and H.M.N. and that the journalists should have confronted the story put to them by A.F. with the version of Ł.Z. The Court of Appeal found that A.F. ’ s story was not credible because he had apparently not wished that the journalist speak to Ł.Z. However, it appears that the journalists themselves did not consider Ł.Z. as trustworthy source suspecting him of double loyalty and because he was not an active participant at the meetings. They relied on the story of the chief executive corroborated by H.M.N.", "71. The Court of Appeal focused its assessment of journalistic diligence on one element without paying regard to other aspects of the journalists ’ professionalism and the overall context in which the business meetings with the participation of W.D. took place. It is true that A.F. broke the story to the journalists. However, they undertook to verify the story meticulously. Firstly, they considered his account credible because A.F. pledged to repeat it in the court if necessary and because it was consistent with the account of H.M.N., one of the representatives of the company at the meetings. Secondly, they contacted the Minister of Health and spoke to two other major protagonists of the story, namely B.O. and W.D. The journalists ’ impression of the credibility of the story was reinforced by inconsistent accounts given by W.D. (see paragraph 11 above). Thirdly, the journalists spoke to A.N., the Deputy Minister of Health in charge of the drugs policy at the relevant time who had given a very critical opinion of W.D. ’ s involvement in the meetings. The statements of the Deputy Minister supported the applicants ’ thesis that W.D. acted improperly in mixing his official position with business ventures. Fourthly, the Court of Appeal entirely omitted to note the fact of W.D. ’ s presence at the private meetings between two companies where he had taken part in the negotiations having introduced himself as a high-ranking Government official. The Court agrees with the Regional Court that this fact, bordering on a conflict of interest, lends credibility to A.F. ’ s account.", "72. The extent to which the applicants could have reasonably regarded the impugned information provided by the representatives of pharmaceutical company as reliable must be determined in the light of the situation at the time of the preparation of the article, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72; and Kasabova, cited above, § 67). In this respect it should be noted that the domestic courts refrained from assessing the diligence of the two journalists from the perspective of the information available at the time of preparation of the article.", "73. Furthermore, it should be noted that the allegations raised in the article resulted in the opening of the criminal investigation into the matter and the charges of bribery being laid against W.D. Although the investigation was eventually discontinued for lack of sufficient evidence, the mere length of it (more than three and a half years of proceedings) and the significant amount of evidence examined by the prosecutor would indicate that the allegations could not have been ignored (see paragraphs 42 ‑ 43 above).", "74. The Court further notes that the Court of Appeal found, relying essentially on one sentence from the testimony of H.M.N., that there had been no correlation between the project concerning the network of osteoporosis clinics and the placement of the drug on the list (see paragraph 35 above). At the same time it was undisputed that the parties to the meetings discussed the financial involvement of M. S. D. in the project in the region of 1-1.5 USD million and that the project collapsed when the M. S. D. refused to transfer this amount to an unspecified bank account. In addition, three out of four participants (Ł.Z., W.D. and H.M.N.) testified that they discussed the issue of placement of the M. S. D. ’ s drug on the list of refunded drugs.", "75. Having regard to the above elements and the overall content of the impugned publication, the Court considers that the applicants complied with the tenets of responsible journalism. The research done by the applicants before the publication of their allegations was in good faith and complied with the ordinary journalistic obligation to verify the facts from reliable sources (compare and contrast, Rumyana Ivanova v. Bulgaria, no. 36207/03, § § 64- 65, 14 February 2008; Kania and Kittel v. Poland, no. 35105/04, § § 45-46, 21 June 2011 ). The Court is of the view that the allegations against W.D. were underpinned by a sufficient factual basis. It should also be noted that the content and the tone of the article was on the whole fairly balanced. The applicants, having approached a number of sources, gave as objective picture as possible of W.D. and offered him to present his version of the relevant events and to comment on the allegations raised. W.D. ’ s version of events was presented in the article.", "76. In assessing the necessity of the interference, it is also important to examine the way in which the domestic courts dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention. In the instant case, the domestic courts did not take into account the status of W.D. and the wider limits of permissible criticism applicable to politicians or public officials. Similarly, they omitted to consider the fact that the allegations of corruption had emanated from the pharmaceutical company and had been reported as such by the applicants. Furthermore, the Court of Appeal and the Supreme Court appear to have been unconcerned by the fact that one of the top officials in the Ministry of Health took part in the negotiations between two private companies on their joint business venture in which the public authorities had no involvement. Nor did they appreciate that the subject-matter of the publication concerned issues of public interest or the role of the press as a “public watchdog”. In consequence, the judicial authorities did not carry out a careful balancing exercise between the right to impart information and protection of the reputation or rights of others ( compare and contrast, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006; Kwiecień v. Poland, no. 51744/99, § 52, 9 January 2007; Błaja News sp. Z o. o. v. Poland, no. 59545/10, § 64, 26 November 2013).", "77. It follows that the reasons relied on by the respondent State to justify the interference with the applicants ’ right to freedom of expression, although relevant, are not sufficient to show that that interference was “necessary in a democratic society”.", "78. There has accordingly been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "79. The applicants complained under Article 6 § 1 of the Convention that the Warsaw Court of Appeal had lacked impartiality, as one of the judges of this court was W.D. ’ s brother-in-law and W.D. ’ s mother-in-law had previously served as the President of this court. The applicants also indicated that W.D. ’ s father-in-law was a former judge of the Supreme Court.", "80. The Court notes, however, that the applicants did not raise this complaint in the course of the proceedings before the Court of Appeal or later on in their cassation appeal to the Supreme Court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "81. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "82. The first applicant, Mr Andrzej Stankiewicz and the second applicant, Ms Małgorzata Solecka each claimed EUR 5,000 in respect of non-pecuniary damage. They submitted that the national courts ’ decisions in their case had resulted in adverse publicity, loss of professional reliability and reputation as well as emotional strain.", "83. The Government argued that the applicants had been held liable only under the civil law for infringement of W.D. ’ s personal rights. They maintained that the claims were exorbitant and unsubstantiated.", "84. The Court accepts that the first and second applicants suffered non ‑ pecuniary damage – such as distress and frustration – which is not sufficiently compensated by the finding of a violation of the Convention. Having regard to the nature of the breach and making its assessment on an equitable basis, the Court awards the first and the second applicants each EUR 5,000, plus any tax that may be chargeable, in respect of non ‑ pecuniary damage.", "85. The third applicant, Presspublica sp. z o. o. sought, under the head of costs and expenses, reimbursement of the court fees in the amount of EUR 1,100 and of the legal costs of W.D. in the amount of EUR 1,550 which the applicants were jointly ordered to pay by the Court of Appeal. It submitted that all costs related to the proceedings were borne by the Presspublica sp. z o. o.", "86. The Government commented that the applicants did not make a claim in respect of pecuniary damage.", "87. The Court, however, notes that the third applicant is in principle entitled to recover any sums that it has paid in fees and costs to W.D., by reason of their direct link with the Court of Appeal ’ s judgment which the Court found to be in breach of its right to freedom of expression (see Lingens v. Austria, 8 July 1986, § 50, Series A no. 103; Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003 ‑ XI; and Yordanova and Toshev, cited above, § 78 ). The claim made by the third applicant clearly falls under the heading of pecuniary damage resulting from a breach of the Convention, not costs and expenses. Having regard to the above, the Court awards the third applicant EUR 2,650 in respect of pecuniary damage.", "B. Costs and expenses", "88. The costs and expenses related to the domestic proceedings and the proceedings before the Court were borne exclusively by the third applicant, Presspublica sp. z o. o. The third applicant claimed a total of EUR 8,387.50 for legal fees incurred before the domestic courts and those incurred before the Court, producing relevant invoices.", "89. The Government submitted that only the costs actually incurred in the preparation and defense of the applicants ’ case before the Court and not before the domestic courts can be taken into consideration.", "90. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, an applicant is entitled to an award in respect of the costs and expenses incurred by him/her at domestic level to prevent the breach found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), 18 October 1982, § 17, Series A no. 54). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the third applicant EUR 6, 000 plus any tax that may be chargeable to it, in respect of its legal costs in both domestic and Strasbourg proceedings.", "C. Default interest", "91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants were born in 1953, 1950, 1969 and 1969 and live in Uster, Zürich, Bäretswil and Nussbaumen respectively.", "7. The facts of the case, as submitted by the applicants, may be summarised as follows.", "8. In 2003 the third applicant, an editor of the Kassensturz television programme, prepared a report on practices employed in selling life-insurance products. The report was prompted by the annual reports of the Private Insurance Ombudsman for the Canton of Zürich and by letters which the programme’s editors had received from viewers expressing their dissatisfaction with insurance brokers. Kassensturz is a long-running weekly consumer-protection programme on Swiss - German television (SF DRS).", "9. The third applicant agreed with the first applicant ( the editor-in-chief of SF DRS ) and the second applicant ( the editor in charge of the programme) that she would record meetings between customers and brokers, using a hidden camera, to provide evidence of the brokers ’ inadequate advice. It was decided that the meetings would be recorded in a private flat and that an insurance expert would then be asked to comment on them.", "10. The fourth applicant, a journalist working for SF DRS, arranged a meeting with an insurance broker from company X, which took place on 26 February 2003. She pretended to be a customer interested in taking out life insurance. The SF DRS crew installed two hidden cameras ( Lipstickkameras ) in the room in which the meeting was to take place, transmitting the recording of the conversation to a neighbouring room where the third applicant and the insurance expert had taken up position, together with a camera operator and a technician who had been assigned to film the expert ’ s views on the meeting.", "11. Once the meeting had finished, the third applicant joined the broker and the fourth applicant in the room, introduced herself as an editor of Kassensturz and explained to the broker that the conversation had been filmed. The broker replied that he had suspected as much (“ Das habe ich gedacht ”). The third applicant told him that he had made some crucial errors during the meeting and asked him for his views, but he refused to comment.", "12. The first and second applicants subsequently decided to broadcast part of the filmed meeting during a forthcoming edition of Kassensturz. They suggested that company X be invited to comment on the conversation and the criticism of the broker’s methods, and assured the company that his face and voice would be disguised and would therefore not be recognisable. Before the programme was broadcast, the applicants proceeded to pixelate the broker ’ s face so that only his hair and skin colour and his clothes could still be made out. His voice was also distorted.", "13. On 3 March 2003 the broker brought a civil action in the Zürich District Court, seeking an injunction preventing the programme from being broadcast. The action was dismissed in a decision of 24 March 2003.", "14. On 25 March 2003 the day after the application for an injunction to protect the broker ’ s interests had been rejected, excerpts from the meeting of 26 February were broadcast, with the broker ’ s face and voice disguised as planned.", "15. On 29 August 2006 the single judge for criminal cases at the Dielsdorf District Court (Canton of Zürich) found the first three applicants not guilty of intercepting and recording the conversations of others (offences under Article 179 bis §§ 1 and 2 of the Criminal Code ), and the fourth applicant not guilty of the unauthorised recording of conversations ( Article 179 ter § 1 of the Criminal Code ).", "16. Both the Principal Public Prosecutor ( Oberstaatsanwalt ) of the Canton of Zürich and the broker, as an injured party, appealed against the judgment of 29 August 2006.", "17. In a judgment of 5 November 2007, the Court of Appeal ( Obergericht ) of the Canton of Zürich found the first three applicants guilty of recording the conversations of others ( Article 179 bis §§ 1 and 2 of the Criminal Code ) and of breaching confidentiality or privacy by means of a camera ( Article 179 quater §§ 1 and 2 of the Criminal Code ). It also found the fourth applicant guilty of unauthorised recording of conversations ( Article 179 ter § 1 of the Criminal Code ) and breaching confidentiality or privacy by means of a camera ( Article 179 quater §§ 1 and 2 of the Criminal Code ). The first three applicants were given suspended penalties of fifteen day-fines of 350 Swiss francs (CHF), CHF 200 and CHF 100 respectively, while the fourth applicant received a penalty of five day-fines of CHF 30.", "18. The applicants appealed jointly to the Federal Court against their convictions, relying in particular on the right to freedom of expression under Article 10 of the Convention. They argued that their recourse to the impugned technique had been necessary to achieve the aim pursued.", "19. In a judgment of 7 October 2008, which was served on the applicants ’ representative on 15 October 2008, the Federal Court allowed the appeal in so far as it concerned the charge of breaching confidentiality or privacy by means of a camera within the meaning of Article 179 quater of the Criminal Code. It held that there had been a violation of the principle that the trial must relate to the charges brought and a violation of the rights of the defence, and remitted the case to the lower court.", "20. The Federal Court dismissed the remainder of the appeal. It held that the applicants had committed acts falling under Article 179 bis §§ 1 and 2 and Article 179 ter § 1 of the Criminal Code and dismissed their defence of justification. It acknowledged that there was a significant public interest in being informed about practices employed in the field of insurance, and that this interest was liable to be weightier than the individual interests at stake. However, it considered that the applicants could have achieved their aims by other means entailing less interference with the broker ’ s private interests, for example by commenting on the Ombudsman ’ s annual reports or interviewing the Ombudsman ’ s staff or customers who were dissatisfied with their broker’s services. It also found that instead of filming the meeting with a hidden camera, the journalist could have drawn up a record of the conversation, although it acknowledged that the probative value of that method would obviously have been less striking. Lastly, it held that the filming of a single case was insufficient to provide reliable evidence of the scale of the alleged problems, since examples of malpractice in this field were widespread and common knowledge. The public could therefore not draw general conclusions about the quality of advice given by insurance companies from the broadcasting of an isolated example.", "21. On 24 February 2009 the Court of Appeal of the Canton of Zürich found the applicants guilty of breaching confidentiality or privacy by means of a camera, an offence under Article 179 quater of the Criminal Code. It therefore slightly reduced the penalties previously imposed on them : the first three applicants were given twelve day-fines of CHF 350 (approximately 290 euros (EUR)), CHF 200 (approximately EUR 160) and CHF 100 (approximately EUR 80) respectively, instead of fifteen day-fines, and the fourth applicant was given four day-fines of CHF 30 instead of five day-fines. The penalties were all suspended for a probationary period of two years. The applicants did not appeal against that judgment." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "22. The relevant provisions of the Swiss Criminal Code are worded as follows.", "Article 179 bis – Intercepting and recording the conversations of others", "“A person who, without the consent of all the participants, has intercepted by means of a listening device, or recorded on a recording device, a private conversation between other persons; or", "a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph; or", "a person who has kept or made available to a third party a recording which he knew or should have assumed had been made by means of an offence under the first paragraph", "shall be liable, subject to a complaint being lodged, to a custodial sentence not exceeding three years or to a fine.”", "Article 179 ter – Unauthorised recording of conversations", "“A person who, without the consent of the other participants, has recorded on a recording device a private conversation in which he took part; or", "a person who has kept a recording which he knew or should have assumed had been made as the result of an offence under paragraph 1 above, or who has used such a recording for his own benefit or has made it available to a third party", "shall be liable, subject to a complaint being lodged, to a custodial sentence not exceeding one year or a fine.”", "Article 179 quater – Breach of confidentiality or privacy by means of a camera", "“A person who, without the consent of the person concerned, has observed with a camera or recorded with a camera device any matter pertaining to that person ’ s confidential sphere or, where such a matter would not otherwise have been in public view, any matter pertaining to that person ’ s private sphere; or", "a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph; or", "a person who has kept or made available to a third party a recording which he knew or should have assumed had been obtained by means of an offence under the first paragraph", "shall be liable, subject to a complaint being lodged, to a custodial sentence not exceeding three years or a fine.”", "23. The relevant passages of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy, adopted on 26 June 1998, read as follows.", "“10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression.", "11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.", "12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.", "13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "24. The applicants complained of a violation of their right to freedom of expression as enshrined in Article 10 of the Convention, which provides :", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "25. The Government contested that argument.", "A. Admissibility", "26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "27. The applicants submitted that Articles 179 bis and 179 ter of the Criminal Code were not sufficiently foreseeable as to their effects. They contended that there was no explicit reference to the use of a hidden camera and that the courts ’ case-law and the recommendations of the Swiss Press Council were vague. The Federal Court was attempting to impose absolute censorship on journalistic research involving covert investigative techniques, in particular the use of a hidden camera.", "28. The applicants added that Articles 179 bis and 179 ter of the Criminal Code did not require personal communications to be impartial and did not protect personality rights, but rather the confidentiality of communications in the private sphere. The conversation in the present case had taken place during the broker ’ s working hours at a flat not belonging to him. Moreover, there had been no specific relationship of trust between the journalist and the broker. The question of protecting the broker ’ s private and intimate sphere therefore did not arise, since his voice and face had also been disguised.", "29. The applicants further contended that they had complied with the duties and responsibilities incumbent on them in the circumstances at hand. They relied on decision no. 51/2007 of the Swiss Press Council, which had held that covert research was permitted if the information concerned was in the public interest and could not be obtained by any other means. The subject of the programme, which had aimed to draw public attention to malpractice in the field of private insurance in Switzerland, was of considerable public interest. Moreover, journalists were free to choose the methods they wished to employ to carry out their investigations. A realistic portrayal of the situation had been necessary in this particular case; otherwise, the broker could have successfully brought a civil claim against the journalists. The deterrent effect of the judicial decisions in issue was extremely significant, bearing in mind the absolute nature of the Federal Court ’ s findings. The applicants pointed out that they had given the broker the opportunity to respond to the criticisms after the recording and before the broadcast, and that he had refused to do so.", "(b) The Government", "30. The Government did not dispute that the convictions in issue constituted “ interference ” with the applicants ’ exercise of their right to freedom of expression. However, they submitted that the interference had had a clear and foreseeable basis in law. Article 179 bis protected actual conversations and Article 179 ter protected spontaneous comments. They applied both to the intimate and private sphere, to the right to one’s own image and to the non-disclosure of one’s own comments, and pursued the legitimate aim of protecting the reputation and rights of others.", "31. The Government submitted that the fact that the broker ’ s voice and face had been disguised had no bearing on the lawfulness of the applicants’ conduct, since the recording and broadcasting were in themselves punishable by law. Furthermore, as the Federal Court had held, it was not inconceivable that the broker ’ s relatives or colleagues might be able to recognise and identify him. In addition, no inferences could be drawn from the outcome of the domestic civil proceedings, since these were independent of the criminal proceedings and were based on a different rationale.", "32. As to the proportionality of the measure in issue, the Government pointed out that the Federal Court had held that the use of a hidden camera was similar to the methods used by secret - investigation authorities or to the surveillance of postal correspondence and telecommunications. Such methods were permissible only if certain highly restrictive conditions were satisfied and in the case of extremely serious offences. The Federal Court ’ s decision in the present case had clearly been issued in relation to the specific circumstances, and not in general terms. The Government noted that the Federal Court had acknowledged that there was a considerable public interest in being informed of any shortcomings in the field of selling life insurance, but had found that the report broadcast in the present case had simply highlighted problems that were already well known, without revealing anything new. They agreed with the Federal Court that the journalists could have produced a transcript of the conversation without recording it, or could have used other, lawful, means, and that it was not the journalists’ task to gather absolute proof. In addition, the applicants, as experienced journalists, must have been aware that their conduct rendered them liable to a penalty that was not unreasonable in the present case.", "(c) Media Legal Defence Initiative (MLDI)", "33. The third-party intervener, the MLDI, emphasised the importance of undercover techniques in producing certain types of report, particularly when it was necessary to strip away the carefully cultivated image of powerful or sophisticated organisations or to enter a clandestine world, access to which was restricted. When used in an ethical and focused way, such techniques were valuable tools of last resort to expose real practices that could not realistically be identified by other means. There was a difference between recordings made at the home or office of the person concerned and recordings made elsewhere. The MLDI pointed out that many European States accepted undercover techniques while regulating their use.", "2. The Court ’ s assessment", "34. It is not in dispute between the parties that the applicants ’ conviction constituted “interference by public authority” with their right to freedom of expression.", "35. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. The Court must therefore determine whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims.", "(a) Prescribed by law", "36. The Court reiterates its settled case-law, according to which the expression “prescribed by law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001-VI; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A, and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II).", "37. In the present case it has not been disputed that the applicants were convicted on the basis of a law that was accessible, namely Articles 179 bis and 179 ter of the Swiss Criminal Code. However, the applicants submitted that those provisions were not foreseeable as to their effects, as they did not contain any explicit prohibition of the use of a hidden camera.", "38. The Court observes that the only difference in the parties ’ interpretation of these two Articles of the Swiss Criminal Code concerns their purpose, namely the aspects of privacy and personality rights which they are designed to protect; the applicants have not maintained that the type of punishable conduct defined in those Articles was unclear.", "39. The Court therefore considers that the applicants – as journalists and editors making television programmes for a living – could not have failed to realise that, by using a hidden camera without the consent of a person who was the subject of a report and by broadcasting the report without that person’s permission, they were liable to a criminal penalty.", "40. It thus concludes that the impugned interference was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention.", "(b) Legitimate aim", "41. The Government submitted that the applicants ’ conviction had pursued the legitimate aim of protecting the reputation and rights of others, specifically the insurance broker in question. The applicants, meanwhile, argued that the interference could not have pursued such an aim since the broker ’s face and voice had been disguised, and as such, that there had been no injury to his rights and reputation.", "42. The Court observes that the broker ’ s image and voice were recorded without his knowledge and then broadcast against his wishes, anonymously but portraying him in a disparaging light – as a professional giving inaccurate advice – in a television programme with high viewing figures.", "43. It therefore considers that the measure in issue may have pursued the aim of protecting the rights and reputation of others, specifically the broker ’ s right to respect for his own image, words and reputation.", "(c) Necessary in a democratic society", "( i ) General principles", "44. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004-IV; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV).", "45. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004-XI). Although formulated primarily with regard to the print media, these principles doubtless apply also to the audio - visual media (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 ).", "46. Article 10 § 2 of the Convention states that freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume particular significance when there is a question of attacking the reputation of a named individual or, more generally, infringing the “rights of others”. Thus, special grounds are required before the media can be released from their ordinary obligation to verify their information and not publish factual statements that are defamatory. Whether such grounds exist depends in particular on the nature and degree of the allegations in question and the extent to which the media can reasonably regard their sources as reliable in that respect (see Pedersen and Baadsgaard, cited above, § 78, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, 1 March 2007).", "47. The Court further reiterates that all persons, including journalists, who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see Stoll v. Switzerland [GC], no. 69698/01, § 102, ECHR 2007-V). Thus, notwithstanding the vital role played by the media in a democratic society, journalists cannot in principle be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (ibid.).", "48. When examining the necessity in a democratic society of an interference in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011 ).", "49. Moreover, the right to protection of reputation is a right which is protected by Article 8 of the Convention as an aspect of private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009).", "50. In previous cases the Court has had to examine attacks on the personal reputation of public figures (see Axel Springer AG, cited above ). It has established six criteria for analysing whether a balance has been struck between the right to freedom of expression and the right to respect for private life: contribution to a debate of general interest; how well known the person concerned is and what is the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed (ibid., §§ 90-95).", "51. The Court has also dealt with cases involving defamation with a bearing on an individual ’ s professional activities (a doctor in Kanellopoulou v. Greece, no. 28504/05, 11 October 2007; the director of a State-subsidised company in Tănăsoaica v. Romania, no. 3490/03, 19 June 2012; or judges in Belpietro v. Italy, no. 43612/10, 24 September 2013).", "52. The present case differs from those previous cases in that, firstly, the broker was not a well-known public figure and, secondly, the report in question did not seek to criticise him personally but to denounce certain commercial practices employed within his profession (contrast Kanellopoulou, cited above). The impact of the report on the broker ’ s personal reputation was therefore limited, and the Court will take this particular aspect of the case into account in applying the criteria established in its case-law.", "53. The Court further reiterates that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under Article 10 of the Convention is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard, cited above, § 68).", "54. In cases such as the present one the Court has held that the outcome of the application should not, in principle, vary according to whether it has been lodged with it under Article 10 of the Convention by the journalist who has published the offending article or under Article 8 by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania ( dec. ), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also § 11 of the Parliamentary Assembly Resolution cited in paragraph 23 above). Accordingly, the margin of appreciation should in principle be the same in both cases.", "55. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 57, ECHR 2011, and MGN Limited, cited above, §§ 150 and 155).", "(ii) Application of these principles in the present case", "56. The Court must first establish whether the report in question concerned a matter of public interest. It observes at the outset that the subject of the report, namely the poor-quality advice offered by private - insurance brokers, raised an issue in terms of consumer protection and thus concerned a debate of considerable public interest.", "57. It is also important to examine whether the report in question was capable of contributing to the public debate on this issue (see Stoll, cited above, § 121). In this connection, the Court observes that the Federal Court found that the subject could in itself have been in the public interest if the journalists had made an attempt to determine the scale of the phenomenon, but that the report had not brought to light any new information on the quality of advice offered by insurance brokers. It further held that other methods, entailing less interference with the broker ’ s interests, could have addressed this issue satisfactorily. The Court considers, however, that all that matters is whether the report was capable of contributing to the debate on a matter of public interest and not whether it fully achieved that objective.", "58. It therefore accepts that the report in issue addressed a matter of public interest.", "59. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; Stoll, cited above, § 106; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; and Dupuis and Others v. France, no. 1914/02, § 40, 7 June 2007).", "60. Admittedly, as noted above, the broker who was filmed without his knowledge was not a public figure. He had not given his consent to being filmed and could therefore have “had a reasonable expectation of privacy” as regards the conversation (see, mutatis mutandis, Halford v. the United Kingdom, 25 June 1997, §§ 44 - 45, Reports 1997-III, and Perry v. the United Kingdom, no. 63737/00, §§ 36-43, ECHR 2003-IX). However, the report did not focus on the broker himself but on certain commercial practices employed within a particular profession. Furthermore, the meeting did not take place in the broker ’ s offices or on any other business premises (see, by contrast and mutatis mutandis, Chappell v. the United Kingdom, 30 March 1989, § 51, Series A no. 152-A; Niemietz v. Germany, 16 December 1992, §§ 29-33, Series A no. 251- B; Funke v. France, 25 February 1993, § 48, Series A no. 256-A; Crémieux v. France, 25 February 1993, § 31, Series A no. 256-B; and Miailhe v. France (no. 1), 25 February 1993, § 28, Series A no. 256-C). The Court therefore considers that the interference with the broker ’ s private life was less serious than if the report had been personally and exclusively focused on him.", "61. The way in which the information was obtained and its veracity are also important factors. The Court has previously held that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Pedersen and Baadsgaard, cited above, § 78; Stoll, cited above, § 103; and Axel Springer AG, cited above, § 93). It observes in the present case that, although the parties referred to different sources, they nonetheless agreed in substance that the use of a hidden camera was not absolutely prohibited in domestic law, but could be accepted subject to strict conditions (see paragraphs 29 and 32 above). It was not disputed among the parties that the use of this technique was permitted only where there was an overriding public interest in the dissemination of the relevant information, provided that such information could not be obtained by any other means. The Court has already established that the report concerned a matter of public interest. It considers that what is important at this stage is an assessment of the applicants ’ conduct. Although the broker might legitimately have felt that he had been deceived by the journalists, they nevertheless cannot be accused of having deliberately acted in breach of professional ethics. They did not disregard the rules on journalism as laid down by the Swiss Press Council (see paragraph 29 above) limiting the use of hidden cameras, but instead inferred – incorrectly, in the view of the Federal Court – that the subject of their report entitled them to obtain information by those means. The Court notes that the Swiss courts themselves were not unanimous on this question, since they acquitted the applicants at first instance before subsequently convicting them. That being so, the Court considers that the applicants should be given the benefit of the doubt as to whether they really intended to comply with the ethical rules applicable to the present case regarding the method used to obtain information.", "62. As regards the facts of the case, their veracity has never been disputed. Whether it might have been of more interest to consumers, as the Government argued, to expose the scale of the alleged problems rather than their nature has no bearing on this finding.", "63. The Court further reiterates that the way in which a report or photograph is published and the manner in which the person concerned is portrayed in it may also be factors to be taken into consideration (see Wirtschafts -Trend Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photograph have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 47, ECHR 2004 ‑ X ).", "64. In the present case the Court observes that the applicants recorded a conversation featuring the images and sound of purported negotiations between the broker and the journalist. It considers that the recording itself entailed only limited interference with the broker ’ s interests, given that only a restricted group of individuals had access to the recording, as the Government accepted.", "65. The recording was then broadcast as part of a report which was particularly disparaging towards the broker, as the Court has already noted. Although only brief excerpts of the recording were shown, this footage was liable to entail a more significant interference with the broker ’ s right to privacy, since it was seen by a large number of viewers – approximately 10,000 according to the Government. The Court acknowledges that the audio - visual media often have a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31). Viewers of the programme were thus able to form an opinion as to the quality of the broker’s advice and his lack of professionalism. Nevertheless, a decisive factor in the present case is that the applicants had pixelated the broker ’ s face so that only his hair and skin colour could still be made out; they also distorted his voice. Furthermore, although the broker ’ s clothes were still visible, they did not have any distinctive features either. Lastly, the meeting did not take place on the broker ’ s usual business premises.", "66. The Court therefore considers, having regard to the circumstances of the case, that the interference with the private life of the broker – who, it reiterates, declined to comment on the interview – was not so serious (see A. v. Norway, cited above) as to override the public interest in receiving information about alleged malpractice in the field of insurance brokerage.", "67. Lastly, the Court must take into account the nature and severity of the sanction. It reiterates in this connection that, in some cases, a person ’ s conviction in itself may be more important than the minor nature of the penalty imposed (see Stoll, cited above, §§ 153-54). In the present case, although the pecuniary penalties of twelve day-fines for the first three applicants and four day-fines for the fourth applicant were relatively modest, the Court considers that the sanction imposed by the criminal court may be liable to deter the media from expressing criticism (ibid., § 154), even though the applicants themselves were not denied the opportunity to broadcast their report.", "68. Having regard to the foregoing, the Court considers that the measure in dispute in the present case was not necessary in a democratic society. There has therefore been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "70. The applicants did not submit a claim for just satisfaction. Accordingly, there is no call to award them any sum on that account." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant is a journalist by profession. On 15 October 2003 he published an article in the weekly magazine L ’ Illustré entitled “ Drame du Grand-Pont à Lausanne – la version du chauffard – l ’ interrogatoire du conducteur fou ” (“Tragedy on the Lausanne Bridge – the reckless driver ’ s version – Questioning of the mad driver”). The article in question concerned a set of criminal proceedings against M.B., a motorist who had been remanded in custody after an incident on 8 July 2003 in which he had rammed his car into pedestrians, before throwing himself off the Lausanne Bridge (Grand-Pont). The incident, in which three people had died and eight others had been injured, had caused much emotion and controversy in Switzerland. The article began as follows.", "“Surname: B. First name: M. Born on 1 January 1966 in Tamanrasset (Algeria), son of B.B. and F.I., resident in Lausanne, holder of a category C licence, spouse of M.B. Profession: nursing assistant ... It is 8.15 p.m. on Tuesday 8 July 2003, in the austere premises of the Lausanne criminal investigation department. Six hours after his tragic headlong race along the Lausanne Bridge, resulting in three deaths and eight casualties, this reckless driver is alone for the first time, facing three investigators. Will he own up? In fact he doesn ’ t actually seem to realise what is happening, as if oblivious to the events and all the hubbub around him. The man who upset the whole of Lausanne this fine summer day is not very talkative. This Algerian citizen is withdrawn, introverted, inscrutable, indeed completely impenetrable. And yet the questions are flying from all sides. What were the reasons for this ‘ accident ’, one of the policemen rather clumsily writes, as if he had already formed his opinion. Four words in reply: ‘ I do not know ’ .”", "9. The article continued with a summary of the questions put by the police officers and the investigating judge and M.B. ’ s replies. It also mentioned that M.B. had been “charged with premeditated murder [ assassinat ] and, in the alternative, with murder [ meurtre ], grievous bodily harm, endangering life and serious traffic offences”, and that he “appear[ed] to show no remorse”. The article was accompanied by several photographs of letters which M.B. had sent to the investigating judge. It ended with the following paragraph.", "“From his prison cell, M.B. now spends his time sending letters to the investigating judge ...: on being taken into custody he asked for his watch to be returned and requested a cup for his coffee, some dried fruit and chocolate. On 11 July, three days after the events, he even asked to be temporarily released for ‘ a few days ’. ‘ I would like to phone my big brother in Algeria ’, he subsequently begged. He finally announced on 11 August that he had come to a ‘ final decision ’ : he dismissed his lawyer, Mr M.B., on grounds of ‘ lack of trust ’. Two days later, another letter: could the judge send him ‘ the directory of the Bar Association of the Canton of Vaud ’ to help him find a different defence lawyer? However, with all the recurrent lies and omissions, the mixture of naivety and arrogance, amnesia and sheer madness characterising all these statements, surely M.B. is doing everything in his power to make himself impossible to defend?”", "10. The article also included a brief summary entitled “He lost his marbles...” (“ Il a perdu la boule... ”), and statements from M.B. ’ s wife and from his doctor.", "11. It appears from the file that the applicant ’ s article was not the only piece to have been published on the Lausanne Bridge tragedy. The authorities responsible for the criminal investigation had themselves decided to inform the press of certain aspects of the investigation, which had led to the publication of an article in the Tribune de Genève on 14 August 2003.", "12. M.B. did not lodge a complaint against the applicant. However, criminal proceedings were brought against the applicant on the initiative of the public prosecutor for having published secret documents. It emerged from the investigation that one of the parties claiming damages in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre. An unknown person had then brought the copy to the offices of the magazine which had published the impugned article.", "13. By an order of 23 June 2004, the investigating judge sentenced the applicant to one month ’ s imprisonment, suspended for one year.", "14. Following an application by the applicant to have the decision set aside, the Lausanne Police Court, by a judgment of 22 September 2005, replaced the prison sentence with a fine of 4,000 Swiss francs (CHF) (approximately 2,667 euros). At the hearing on 13 May 2015, in reply to a question from the Court, the applicant ’ s representative stated that the sum of CHF 4,000 had been advanced by his client ’ s employer and that his client was intending to refund it after the proceedings before the Court. He also confirmed that the amount set by the criminal court had taken account of the applicant ’ s previous record.", "15. The applicant lodged an appeal on points of law. His appeal was dismissed on 30 January 2006 by the Criminal Court of Cassation of the Canton of Vaud.", "16. The applicant lodged a public-law appeal and an appeal on grounds of nullity with the Federal Court, which on 29 April 2008 dismissed the appeals. Its decision was served on the applicant on 9 May 2008. The relevant passages from the decision follow.", "“7. In short, the appellant submits that his conviction for a breach of Article 293 of the Criminal Code is contrary to federal law. He does not challenge the fact that the information which he published falls within the ambit of Article 293 of the Criminal Code. He does, on the other hand, submit, under an interpretation of Articles 293 and 32 of the Criminal Code in the light of the principles inferred from Article 10 ECHR by the European Court of Human Rights, that having received that information in good faith without obtaining it unlawfully, he had the duty as a professional journalist, under Article 32 of the Criminal Code, to publish it owing to what he sees as the obvious interest of the so-called ‘ Lausanne Bridge ’ case to the general public in French-speaking Switzerland.", "7.1. In accordance with Article 293 of the Criminal Code (Publication of secret official deliberations), anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of an authority which are secret by law or by virtue of a decision taken by that authority, acting within its powers, will be punished by a fine (paragraph 1). Complicity in such acts is also punishable (see paragraph 2). The court may decide not to impose any penalties if the secret thus made public is of minor importance (see paragraph 3).", "According to case-law, this provision proceeds from a formal conception of secrecy. It is sufficient that the documents, deliberations or investigations in question have been declared secret by law or by virtue of a decision taken by the authority, or in other words that there has been an intention to keep them from becoming public, regardless of the type of classification selected (for example, top secret or confidential). On the other hand, strict secrecy presupposes that the holder of the specific information wishes to keep it secret, that there is a legitimate interest at stake, and that the information is known or accessible only to a select group of persons (see ATF [Judgments of the Swiss Federal Court] 126 IV 236, point 2a, p. 242, and 2c/aa, p. 244). This state of affairs was not altered by the entry into force of paragraph 3 of this Article on 1 April 1998 (RO [ Recueil officiel – Official Collection of Federal Statutes] 1998 852 856; FF [ Feuille fédérale ] 1996 IV 533). That rule concerns not secrets in the substantive sense but rather instances of futile, petty or excessive concealment (see ATF 126 IV 236, point 2c/bb, p. 246). In order to exclude the application of paragraph 3, the court must therefore first of all examine the reasons for classifying the information as secret. It must, however, do so with restraint, without interfering with the discretionary power wielded by the authority which declared the information secret. It is sufficient that this declaration should nonetheless appear tenable vis-à-vis the content of the documents, investigations or deliberations in issue. Moreover, the journalists ’ viewpoint on the interest in publishing the information is irrelevant (see ATF 126 IV 236, point 2d, p. 246). In its Stoll v. Switzerland judgment of 10 December 2007, the European Court of Human Rights confirmed that this formal conception of secrecy was not contrary to Article 10 ECHR inasmuch as it did not prevent the Federal Court from determining whether the interference in issue was compatible with Article 10 ECHR, by assessing, in the context of its examination of Article 293, paragraph 3, of the Criminal Code, the justification for classifying a given piece of information as secret, on the one hand, and weighing up the interests at stake, on the other (see Stoll v. Switzerland [GC], no. 69698/01, §§ 138-39, ECHR 2007-V).", "7.2. In the present case the offence with which the appellant is charged concerned the publication of records of interviews and correspondence contained in the case file of a live criminal investigation.", "In pursuance of Article 184 of the Code of Criminal Procedure of the Canton of Vaud (CPP/VD), all investigations must remain secret until their final conclusion (see paragraph 1). The secrecy requirement relates to all the evidence uncovered by the investigation itself as well as all non-public decisions and investigative measures (see paragraph 2). The law also specifies that the following are bound by secrecy vis-à-vis anyone who does not have access to the case file: the judges and judicial staff (save in cases where disclosure would facilitate the investigation or is justified on public-order, administrative or judicial grounds; see Article 185 CPP/VD), and also the parties, their friends and relatives, their lawyers, the latter ’ s associates, consultants and staff, and any experts and witnesses. However, disclosure to friends or relatives by the parties or their lawyer is not punishable (see Article 185a CPP/VD). Lastly, the law provides for a range of exceptions. As an exception to Article 185, the cantonal investigating judge and, with the latter ’ s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [ Conseil d ’ État ] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly where public cooperation is required to shed light on an offence, in cases which are particularly serious or are already known to the general public, or where erroneous information must be corrected or the general public reassured (see Article 185b, paragraph 1, CPP/VD).", "The present case therefore concerns secrecy imposed by the law rather than by an official decision.", "7.3. As a general rule, the reason for the confidentiality of judicial investigations, which applies to most sets of cantonal criminal proceedings, is the need to protect the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed. Nevertheless, the interests of the accused must not be disregarded either, particularly vis-à-vis the presumption of innocence and, more broadly, the accused ’ s personal relations and interests (see Hauser, Schweri and Hartmann, Schweizerisches Strafprozessrecht, 6th ed., 2005, § 52, no. 6, p. 235; Gérard Piquerez, op. cit., § 134, no. 1066, p. 678; Gérard Piquerez, Procédure pénale suisse: manuel, 2nd ed., 2007, no. 849, pp. 559 et seq.), as well as the need to protect the opinion-forming process and the decision-making process within a State authority, as protected, precisely, by Article 293 of the Criminal Code (see ATF 126 IV 236, point 2c/aa, p. 245). The European Court of Human Rights has already had occasion to deem such a purpose legitimate in itself. The aim is to maintain the authority and impartiality of the judiciary in accordance with the wording of Article 10 § 2 ECHR, which also mentions the protection of the reputation or rights of others (see Weber v. Switzerland, 22 May 1990, § 45, Series A no. 177, and Dupuis and Others v. France, no. 1914/02, § 32, 7 June 2007).", "Furthermore, in so far as the impugned publication concerned excerpts from records of interviews of the accused and reproduced certain letters sent by the latter to the investigating judge, this evidence can validly be classified secret, by prohibiting public access to it, as provided by the legislation of the Canton of Vaud. This is the inescapable conclusion as regards the records of interviews of the accused, as it would be inadmissible to allow such documents to be analysed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court. It is also the only possible conclusion as regards the letters sent by the accused to the investigating judge, which focused on practical problems and criticisms of his lawyer (see Police Court judgment, point 4, p. 7). We might point out here that it appears from the impugned publication – which the cantonal authorities did not reproduce in full in their decisions, although they did refer to it and its content is not disputed – that the aforementioned practical problems concerned requests for temporary release and for access to personal effects (letters of 11 July 2003), for a change of cell (letter of 7 August 2003) and for authorisation to use the telephone (letter of 6 August 2003). Regardless of the guarantee of the presumption of innocence and the inferences concerning the detainee ’ s character which might be drawn during the criminal proceedings from such correspondence, the detainee, whose liberty is considerably restricted, even in respect of everyday acts relating to his private life, or indeed intimate sphere, can expect the authority restricting his liberty to protect him from public exposure of the practical details of his life as a remand prisoner and as a person facing charges (see Article 13 of the Constitution).", "It follows that in the instant case the information published by the appellant, in so far as it concerned the content of the records of his interviews and his correspondence with the investigating judge, cannot be described as a secret of minor importance for the purposes of Article 293, paragraph 3, of the Criminal Code. That being so, the impugned publication constituted the factual elements of the offence provided for in Article 293, paragraph 1, of the Criminal Code.", "7.4. Moreover, the information in question may be described as being secret in substantive terms because it was only accessible to a restricted number of persons (the investigating judge and the parties to the proceedings). Furthermore, the investigating authority was desirous to keep them secret, with not only a legitimate interest in doing so but an obligation under the Cantonal Code of Criminal Procedure, the justification for which was mentioned above (see point 7.3 above).", "7.5. Therefore, the only remaining point at issue is the existence of justification.", "8. In short, the appellant submits that he had the professional duty (under former Article 32 of the Criminal Code) as a journalist to publish the information in question because of what he describes as the obvious interest in the ‘ Lausanne Bridge ’ case for the population of French-speaking Switzerland. He considers that in the light of European case-law, the basic assumption should be that publication is justified in principle unless there is a pressing social need to maintain secrecy. From the standpoint of good faith, he submits that Article 32 should apply to journalists who are not responsible for the indiscretion committed by a third party and who receive information without committing any offence themselves other than the breach of secrecy stemming from the publication. Lastly, he contends that the mode of publication is not a relevant criterion.", "8.1. As regards the former point, the cantonal court found that while the accident of 8 July 2003, the circumstances of which were undoubtedly unusual, had triggered a great deal of public emotion, it had nevertheless, in legal terms, been simply a road accident with fatal consequences, and did not in itself entail any obvious public interest. It was not a case of collective trauma on the part of the Lausanne population, which would have justified reassuring the citizens and keeping them informed of the progress of the investigation (see judgment appealed against, point 2, p. 9).", "It is true that the ‘ Lausanne Bridge case ’ attracted extensive media coverage (see Police Court judgment, point 4, p. 8, to which the cantonal judgment refers (judgment appealed against, point B, p. 2)). However, this circumstance alone, alongside the unusual nature of the accident, is insufficient to substantiate a major public interest in publishing the confidential information in question. Unless it can be justified per se, the interest aroused among the public by media coverage of events cannot constitute a public interest in the disclosure of classified information, because that would mean that it would be sufficient to spark the public ’ s interest in a certain event in order to justify the subsequent publication of confidential information likely to maintain that interest. Furthermore, such a public interest is manifestly lacking as regards the letters that were published. As we have seen above (see point 7.3 above), these letters virtually exclusively concerned criticisms levelled by the accused against his lawyer and such practical problems as requests for temporary release, for access to personal effects, to change cells and to use the telephone. This type of information provides no relevant insights into the accident or the circumstances surrounding it. It relates to the private life, or indeed intimate sphere, of the person in custody, and it is difficult to see any interest which its publication could satisfy other than a certain kind of voyeurism. The same applies to the appellant ’ s requests to the investigating judge in relation to his choice of defence lawyer. Nor is it clear, as regards the records of his interviews, what political question or matter of public interest would have arisen or been worth debating in the public sphere, and the cantonal authorities explicitly ruled out the existence of any collective trauma which might have justified reassuring or informing the population. This finding of fact, which the appellant has not disputed in his public-law appeal, is binding on this court (see section 277 bis of the Federal Criminal Procedure Act). That being the case, the appellant fails to demonstrate the ‘ obvious ’ interest to the general public of the information published, and the cantonal court cannot be criticised for having concluded that at the very most, such an interest involved satisfying an unhealthy curiosity.", "8.2. The other two factors relied upon by the appellant concern his behaviour (good faith in access to information and mode of publication).", "8.2.1. It should first of all be noted that Article 293 of the Criminal Code punishes only the disclosure of information, irrespective of how the perpetrator obtained it. Moreover, even under Article 10 ECHR, the European Court does not attach decisive importance to this fact when considering whether applicants have fulfilled their duties and responsibilities. The determining fact is rather that they could not claim in good faith to be unaware that disclosure of the information was punishable by law (see Stoll, cited above, § 144, and Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I). This point is well-established in the present case (see section B above).", "8.2.2. On the other hand, the mode of publication can play a more important role in the context of safeguarding freedom of expression. While the European Court of Human Rights reiterates that neither it, nor the domestic courts for that matter, should substitute their own views for those of the press as to what technique of reporting should be adopted by journalists, in weighing up the interests at stake it nevertheless takes account of the content, vocabulary and format of the publication, and of the headings and sub-headings (whether chosen by the journalist or the editors), and the accuracy of the information (see Stoll, cited above, §§ 146 et seq., especially 146, 147 and 149).", "In the instant case the cantonal court ruled that the tone adopted by the appellant in his article showed that his main concern was not, as he claims, to inform the general public about the State ’ s conduct of the criminal investigation. The headline of the article ( ‘ Questioning of the mad driver ’, ‘ the reckless driver ’ s version ’ ) already lacked objectivity. It suggested that the case had already been tried in the author ’ s view, in the sense that the fatalities on the Lausanne Bridge had been caused not by an ordinary motorist but by a ‘ mad driver ’, a man ‘ oblivious to the events and all the hubbub around him ’. The journalist concluded by wondering whether the driver was in fact doing his best to ‘ make himself impossible to defend ’. The manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence (see judgment appealed against, point 2, pp. 9 et seq.). The cantonal court concluded that this factor did not indicate that the public interest in receiving information prevailed. That court cannot be criticised on that account.", "8.3. The appellant also submitted that the records of interviews and the letters would in any case be mentioned in subsequent public hearings. He inferred from this that preserving the confidentiality of this information could therefore not be justified by any ‘ pressing social need ’.", "However, the mere possibility that the secrecy of criminal investigations might be lifted during a subsequent phase of proceedings, particularly during the trial, which is generally subject to the publicity principle, does not undermine the justification for keeping judicial investigations confidential, because the primary aim is to protect the opinion-forming and decision-making processes on the part not only of the trial court but also of the investigating authority, until the completion of this secret phase of proceedings. Moreover, far from being neutral and comprehensive, the publication in issue included comments and assessments which presented the information in issue in a particular light, without providing the opportunities for adversarial argument which are the very essence of proceedings in trial courts.", "8.4. Lastly, the appellant did not explicitly criticise the amount of the fine imposed on him. Nor did he challenge the refusal to grant him a probationary period after which the fine would be struck out (former Article 49, point 4, in conjunction with former Article 106, paragraph 3, of the Criminal Code) under Swiss law. From the angle of weighing up the interest in the interference, we might simply note that the fine imposed, the amount of which took into account a previous conviction dating back to 1998 (imposition of a CHF 2,000 fine, which could be struck out after a two-year probationary period, for coercion and defamation), does not exceed half the amount of the appellant ’ s monthly income at the material time (see Police Court judgment, point 1, p. 5), and there is nothing to suggest that his freelance status at the time of the first-instance judgment led to any significant drop in his earnings. It should also be pointed out that at CHF 4,000 the amount of the fine is below the statutory maximum set out in former Article 106, paragraph 1, of the Criminal Code (as in force until 31 December 2006), and that this maximum amount, set by the legislature more than thirty years ago, was not revised until the entry into force of the new general section of the Criminal Code, which now sets a figure of CHF 10,000 (see Article 106, paragraph 1, of the Criminal Code as in force since 1 January 2007). Furthermore, the sanction for the offence with which the appellant is charged did not prevent him from expressing his views, since it was imposed after the article had been published (see Stoll, cited above, § 156). That being the case, it is unclear, in view of the nature of the offence charged (the least serious in the classification set out in the Swiss Criminal Code), the amount of the fine and the time of its imposition, how the sanction imposed on the applicant could be regarded as a form of censorship.", "8.5. It follows from the foregoing that the appellant disclosed a secret within the meaning of Article 293, paragraph 1, of the Criminal Code and that he cannot rely on any justifying factor in his favour. The decision appealed against does not violate federal law as interpreted in the light of the Convention provisions relied upon by the appellant.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Criminal Code of 21 December 1937 (version in force until 31 December 2006)", "17. The relevant provisions of the Criminal Code read as follows.", "Article 39 – Short periods of imprisonment [ arrêts ]", "“1. Short periods of imprisonment [ arrêts ] correspond to the least severe custodial sentence available. Their duration is one day minimum and three months maximum ...”", "Article 293 – Publication of secret official deliberations", "“1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment [ arrêts ] or a fine.", "2. Complicity in such acts shall be punishable.", "3. The court may decide not to impose any penalty if the secret concerned is of minor importance.”", "B. Criminal Code of 21 December 1937 (version in force since 1 January 2007)", "18. The provisions of the Criminal Code read as follows.", "Article 293 – Publication of secret official deliberations", "“1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with a fine.", "2. Complicity in such acts shall be punishable.", "3. The court may decide not to impose any penalty if the secret concerned is of minor importance.”", "C. Code of Criminal Procedure of the Canton of Vaud of 12 September 1967", "19. The relevant provisions of the Code of Criminal Procedure of the Canton of Vaud of 12 September 1967 read as follows.", "Article 166 – Secrecy", "“Preliminary police inquiries shall be secret. Articles 184 to 186 are applicable by analogy.”", "Article 184 – Secrecy of investigations", "“1. All investigations must remain secret until their final conclusion.", "2. Secrecy shall concern all evidence uncovered by the investigation itself and all non-public investigative decisions and measures.”", "Article 185 – Persons bound to secrecy", "“Judges, prosecutors and judicial staff may not disclose items of evidence or information on the investigation to anyone who does not have access to the files, except to the extent that such disclosure would be useful to the investigation or is justified on public-order, administrative or judicial grounds.”", "Article 185a", "“1. The parties, their friends and relatives, their lawyers, the latter ’ s associates, consultants and staff, and any experts and witnesses are required to observe the secrecy of the investigation vis-à-vis anyone who does not have access to the files.", "2. Disclosure of such information to friends or relatives by the parties or their lawyers shall not be punishable.”", "Article 185b", "“1. As an exception to Article 185, the cantonal investigating judge and, with the latter ’ s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [ Conseil d ’ État ] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly in the following cases:", "(a) where public cooperation is required to shed light on an offence;", "(b) in cases which are particularly serious or are already known to the general public;", "(c) where erroneous information must be corrected or the general public reassured.", "2. If a press conference is organised, counsel for the parties and the public prosecutor shall be invited to attend.", "3. If incorrect information has been disclosed to the press, radio or television, the parties may apply to the cantonal investigating judge to order rectification of such information, via the same media.”", "Article 186 – Sanctions", "“1. Anyone who breaches the secrecy of investigations shall be punished with a fine of up to five thousand Swiss francs, unless this act is punishable under other provisions protecting secrecy.", "2. In very minor cases the person in question may be exempted from any penalty.", "...”", "D. Directives of the Swiss Press Council", "20. The Directives relating to the Declaration of the Duties and Rights of the Journalist issued by the Swiss Press Council which are relevant to the instant case read as follows.", "Directive 3.8 – Right to be heard against grave accusations", "“According to the principle of fairness and the general ethical requirement that both parties to a dispute must be heard ( audiatur et altera pars ), journalists are obliged to contact and hear, prior to publication, the views of those accused of serious offences. In so doing they must describe in detail the serious accusations which they are intending to publish. There is no obligation for the statements of the person accused of serious offences to be given the same weight in a report as the criticism of his or her actions. These statements must, however, be presented fairly when published in the same media report.”", "Directive 7.2 – Identification", "“Journalists must weigh carefully the various interests involved (the general public ’ s right to information, protection of the private sphere). Names or personally identifiable information is allowed:", "– when the person involved appears publicly in relation to the issue or consents to publication in other ways;", "– when the person is famous and the media report concerns the reason for his or her celebrity;", "– when the person involved holds political office or a leading government or social position which is linked to the media report;", "– when naming the person is necessary to avoid confusion that would be deleterious to other persons;", "– when naming or identifying the person is also justified by an overriding public interest.", "Where the interest in protecting private life outweighs the public interest in identification, journalists shall publish neither names nor any other information that would identify the person to third parties who do not belong to his or her family, social or professional sphere, and who are therefore informed solely through the media.”", "III. RELEVANT EUROPEAN INSTRUMENTS AND COMPARATIVE LAW MATERIAL", "A. Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003)", "21. The relevant passages of Recommendation Rec(2003)13 read as follows.", "“...", "Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so;", "Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society;", "Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system;", "Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention;", "...", "Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings;", "...", "Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states:", "1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions,", "2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and", "3. bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals.", "Appendix to Recommendation Rec(2003)13 – Principles concerning the provision of information through the media in relation to criminal proceedings", "Principle 1 – Information of the public via the media", "The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.", "Principle 2 – Presumption of innocence", "Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.", "...", "Principle 6 – Regular information during criminal proceedings", "In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly.", "...", "Principle 8 – Protection of privacy in the context of on-going criminal proceedings", "The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”", "B. Comparative law", "22. As regards the issue of penalties provided for in cases of breaches of the secrecy of criminal investigations, the Court has comparative law material at its disposal relating to thirty member States of the Council of Europe (Austria, Azerbaijan, Belgium, Bulgaria, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Monaco, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom).", "The disclosure of information covered by the secrecy of criminal investigations is penalised as such in all those States.", "23. In twenty-three of the thirty member States concerned, the penalties are general in scope, that is to say that they may be imposed on anyone who has disclosed information covered by the secrecy of criminal investigations. In the seven remaining States (Austria, Lithuania, Luxembourg, Moldova, Romania, Spain and Ukraine), the penalties only target persons involved in the criminal investigation.", "Most of those twenty-three States have opted for criminal penalties, while in Estonia, the Russian Federation and the Czech Republic a breach of the secrecy of criminal investigations is only liable to administrative sanctions.", "THE LAW", "24. The applicant complained that his criminal conviction had resulted in a violation of his right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "25. In its judgment of 1 July 2014, the Chamber concluded that there had been a violation of Article 10. It first of all considered that the applicant ’ s conviction and the fine imposed on him for using and reproducing extracts from the investigation file in his article had amounted to interference with his right to freedom of expression and that such interference had been prescribed by law and had pursued the following legitimate aims: preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”.", "26. The Chamber then stated that the impugned article originated from a set of judicial proceedings initiated following an incident which had occurred under exceptional circumstances, which had immediately aroused interest among the public and which had prompted many media outlets to cover the case and its handling by the criminal justice system. In the impugned article the applicant looked at the character of the accused and attempted to understand his motives, while highlighting the manner in which the police and judicial authorities were dealing with him, a man who seemed to be suffering from psychiatric disorders. The Chamber therefore concluded that the article had addressed a matter of public interest.", "27. However, the Chamber noted that the applicant, an experienced journalist, must have known that the documents that had come into his possession were covered by the secrecy of judicial investigations. That being the case, he ought to have complied with the relevant legal provisions.", "28. In weighing up the competing interests at stake, the Chamber found that the Federal Court had merely noted that the premature disclosure both of the records of interviews and of the letters sent by the accused to the judge had necessarily infringed both the presumption of innocence and, more broadly, the accused ’ s right to a fair trial. However, the article in issue had not addressed the matter of the accused ’ s guilt and had been published more than two years before the first hearing at his trial for the alleged offences. Furthermore, the accused had been tried by courts made up exclusively of professional judges, with no lay jury participating, which also reduced the risks of articles such as the present one affecting the outcome of the judicial proceedings.", "29. Inasmuch as the Government had alleged that the disclosure of the documents covered by the secrecy of judicial investigations had constituted interference with the accused ’ s right to respect for his private life, the Chamber noted that, although remedies had been available to the accused under Swiss law for claiming compensation for the damage to his reputation, he had failed to use them. Accordingly, the second legitimate aim relied upon by the Government was necessarily less important in the circumstances of the case.", "30. As regards the Government ’ s criticism of the form of the impugned article, the Chamber reiterated that in addition to the substance of the ideas and information expressed, Article 10 also protected the manner in which the latter were conveyed.", "31. Finally, although the fine had been imposed for a “minor offence” and heavier penalties, including prison sentences, could be imposed for the same offence, the Chamber considered that because of its significant deterrent effect, the fine imposed in the instant case had been disproportionate to the aim pursued.", "32. The Chamber concluded that the reasons put forward by the national authorities were relevant but not sufficient to justify such an interference with the applicant ’ s right to freedom of expression.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant", "33. The applicant accepted that his conviction had had a legal basis, but submitted that it had not been necessary in a democratic society.", "34. He submitted first of all that the publication had not been intended to disclose confidential information but rather had satisfied a public interest, namely the obligation to inform the population of facts relating to a major event which had shocked the inhabitants of Lausanne and French-speaking Switzerland.", "He contended that, although that information had indeed been formally confidential, its nature had not been such as to justify keeping it secret.", "35. The applicant also pointed out that the impugned publication had not influenced the ongoing investigations or infringed the presumption of innocence in respect of the accused. As regards this latter principle, the applicant emphasised that while it was binding on State authorities, it could not prevent private individuals from forming an opinion before the end of a criminal trial. As in Campos Dâmaso v. Portugal (no. 17107/05, § 35, 24 April 2008), no non-professional judge could have been called on to determine the case, which had in fact been tried by a court made up exclusively of professional judges. The applicant submitted that it transpired from the Criminal Court judgment of 23 November 2005 and the Criminal Court of Cassation judgment of 26 June 2006 that the impugned article had had no impact on M.B. ’ s trial. Moreover, the Federal Court judgment had not established any such impact, confining itself to general considerations on the risks of collusion and the danger of evidence being tampered with or destroyed.", "Moreover, the applicant submitted that, even though at the time of publication of the impugned article no one could have known that the accused ’ s trial would take place two years later, which would have decreased even further the potential impact of the article on the ongoing proceedings, it had been certain that the investigation leading up to the trial would continue for many more months.", "36. As regards the protection of M.B. ’ s right to respect for his private life, the applicant reiterated that M.B. had neither applied to the courts nor had recourse to the legal remedies available to him. That being the case, the State ’ s positive obligation to protect the accused ’ s private life was merely a theoretical question, whereas the Court ’ s assessment should be carried out in concreto. The present case involved a “virtual” balancing act between the rights of a journalist who had actually been convicted in criminal proceedings and those of an accused person who had never even intended to rely on his right to protection of his private life, despite having had the opportunity to do so.", "2. The Government", "37. The Government did not contest the fact that there had been an interference in the applicant ’ s exercise of his right to freedom of expression, referring to the Chamber finding that such interference had been “prescribed by law” and had pursued a “legitimate aim”.", "38. The Government ’ s arguments centred mainly on the necessity of the interference in a democratic society.", "39. First of all the Government observed that in the instant case there had been no compelling reasons to inform the public that might have enabled the applicant to disregard the secrecy of the investigation. They referred to a number of cases adjudicated by the Court inferring the existence of a public interest from the high profile of the individuals involved in the criminal proceedings in question. With reference to Leempoel & S.A. ED. Ciné Revue v. Belgium (no. 64772/01, § 72, 9 November 2006), the Government emphasised that the mere fact that the information published might satisfy some kind of public curiosity was insufficient. They also referred to the conclusion reached by the Federal Court in its judgment of 28 April 2008 to the effect that, even though the circumstances of the accident had been unusual and had triggered a great deal of public emotion, it had nevertheless, in legal terms, simply been a road accident.", "The Government further contended that the interest triggered by the media coverage of the case could not per se amount to a “public interest” in the disclosure of classified information. More specifically, they disputed the idea that publishing the accused ’ s correspondence might be in the public interest, because the letters in question had shed no light on the circumstances of the accident and had related to the accused ’ s private life.", "The Government also submitted that the same applied to the publication of the extracts from the records of interviews.", "40. As regards the balancing of the interests at stake, the Government reiterated that the general public ’ s right to receive information on judicial activities was subject to respect for the rights of others to the presumption of innocence, a fair trial and protection of private and family life, as secured by Articles 6 and 8 of the Convention.", "They emphasised in that context that the principle of subsidiarity which underpinned the Convention system meant that the balancing exercise in question was primarily a matter for the domestic courts, which requirement had been fulfilled in the present case because the Federal Court had conducted an in-depth assessment of the matter.", "41. As regards the accused ’ s right to respect for his private life, the Government submitted that the impugned article had included a close-up photograph of him and a whole series of strictly personal details, including data from the interview records and statements by his wife and his doctor, in addition, of course, to the letters sent by the accused to the investigating judge providing details of his private life in prison.", "The Government also argued that the context of the article and the terms used had shown the accused ’ s personality in a particularly unfavourable and indiscreet light.", "The Government pointed out that Article 8 of the Convention entailed a positive obligation inherent in effective respect for private life, and that this positive obligation was especially important in the case of vulnerable persons, such as a prisoner, especially one who was apparently suffering from mental disorders. Referring to Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 104, ECHR 2012), the Government observed that the choice of the means calculated to secure compliance with Article 8 of the Convention fell within the States ’ margin of appreciation and that in the present case the application of Article 293 of the Criminal Code provided an appropriate means of protecting the accused ’ s private life.", "Lastly, the Government contended that the Chamber had evaded the issue of weighing up the applicant ’ s right to the exercise of the freedom of the press against the accused ’ s right to protection of his private life by merely noting that the accused had not brought any legal action to ensure the protection of that right even though he could have done so under Swiss law. They submitted that the existence of remedies to which the accused could have had recourse did not exempt the State from fulfilling its positive obligation. The Government added that the accused, who had been incarcerated and suffered from mental disorders, had probably not been in a position to commence legal proceedings in defence of his interests.", "42. As regards the protection of the ongoing investigation and the presumption of innocence, the Government submitted that the fact that the hearing had been held more than two years after the publication of the impugned article and that the accused had been tried by professional judges rather than a lay jury had been unknown at the time of publication. They therefore argued that the Chamber had been wrong to take these facts into account in its judgment.", "Furthermore, the Government submitted that the Court could not expect them to provide proof that the disclosure of confidential information had caused actual and tangible harm to the interests protected. Such a requirement would deprive the secrecy of judicial investigations of much of its meaning.", "43. As regards the proportionality of the penalty imposed, the Government emphasised that the fine had not exceeded half the applicant ’ s monthly income and had been assessed on the basis of factors including the applicant ’ s previous record. They also pointed out that it had not been the applicant himself but his employer who had paid the fine.", "C. The Court ’ s assessment", "1. Existence of an interference “prescribed by law” and pursuing a “legitimate aim”", "44. In its judgment of 1 July 2014, the Chamber noted that there had been no disagreement between the parties as to the fact that the applicant ’ s conviction had constituted an interference with his exercise of the right to freedom of expression as secured under Article 10 § 1 of the Convention.", "45. Nor had it been disputed that the interference was prescribed by law, that is to say the Criminal Code and the Code of Criminal Procedure of the Canton of Vaud.", "46. Furthermore, in its judgment (paragraphs 40-41) the Chamber found that the impugned measure had pursued legitimate aims, namely preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”; this was also not contested by the parties.", "47. The Grand Chamber sees no reason to depart from the Chamber ’ s conclusions on these three points.", "2. Necessity of the interference “in a democratic society”", "(a ) General principles", "48. The general principles for assessing the necessity of an interference with the exercise of freedom of expression, which have been frequently reaffirmed by the Court since the judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007-V) and were restated more recently in Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015 ) and Pentikäinen v. Finland ([GC], no. 11882/10, § 87, ECHR 2015):", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "49. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in two fields, namely political speech and matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012; and Morice, cited above, § 125). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case in particular for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending (see, mutatis mutandis, Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010; Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011; and Morice, cited above, § 125). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002, and Morice, cited above, § 125) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III, and Morice, cited above, § 125) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France, no. 54968/00, § 42, 22 December 2005, and Morice, cited above, § 125).", "50. The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, as well as the need to prevent the disclosure of information received in confidence, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997-I; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III; Thoma, cited above, § § 43 - 45; and Tourancheau and July v. France, no. 53886/00, § 65, 24 November 2005).", "Indeed, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means (see Pentikäinen, cited above, § 90, and the cases referred to therein). In its judgment in Pentikäinen, the Court pointed out that the concept of responsible journalism also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (ibid.).", "51. In particular, it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them. However, consideration must be given to everyone ’ s right to a fair hearing as secured under Article 6 § 1 of the Convention, which, in criminal matters, includes the right to an impartial tribunal (see Tourancheau and July, cited above, § 66) and the right to the presumption of innocence (ibid., § 68). As the Court has already emphasised on several occasions (ibid., § 66; see also Worm v. Austria, 29 August 1997, § 50, Reports 1997 ‑ V; Campos Dâmaso, cited above, § 31; Pinto Coelho v. Portugal, no. 28439/08, § 33, 28 June 2011; and Ageyevy v. Russia, no. 7075/10, §§ 224-25, 18 April 2013 ):", "“This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.”", "52. Furthermore, when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the offending article or under Article 10 of the Convention by the author of that article, because these two rights deserve, in principle, equal respect (see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015). Accordingly, the margin of appreciation should in theory be the same in both cases (see Von Hannover (no. 2), § 106; Axel Springer AG, § 87; and Couderc and Hachette Filipacchi Associés, § 91, all cited above).", "53. The Court considers that analogous reasoning must apply in weighing up the rights secured under Articles 10 and 6 § 1 respectively.", "54. Lastly, the Court reiterates that account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, a State ’ s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 54, ECHR 2011), in particular when a balance has to be struck between conflicting private interests.", "Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, weighty reasons are required if it is to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Palomo Sánchez and Others, cited above, § 57; and, more recently, Haldimann and Others v. Switzerland, no. 21830/09, §§ 54-55, ECHR 2015 ).", "(b ) Application of these principles to the present case", "55. In the present case, the applicant ’ s right to inform the public and the public ’ s right to receive information come up against equally important public and private interests which are protected by the prohibition on disclosing information covered by the secrecy of criminal investigations. Those interests are the authority and impartiality of the judiciary, the effectiveness of the criminal investigation and the right of the accused to the presumption of innocence and protection of his private life. The Court considers, as it did, mutatis mutandis, in Axel Springer AG (cited above, §§ 89-95) and Stoll (cited above, §§ 108-61), that it is necessary to specify the criteria to be followed by the national authorities of the States Parties to the Convention in weighing up those interests and therefore in assessing the “necessity” of the interference in cases involving a breach by a journalist of the secrecy of judicial investigations.", "Those criteria emerge from the aforementioned general principles, but also, to some extent, from the legislation of the thirty Council of Europe member States the Court surveyed in connection with the present application (see paragraphs 22-23 above).", "(i) How the applicant came into possession of the information in issue", "56. The Court reiterates that the manner in which a person obtains information considered to be confidential or secret may be of some relevance for the balancing of interests to be carried out in the context of Article 10 § 2 (see Stoll, cited above, § 141).", "57. In the present case it was not alleged that the applicant had obtained the information in question by unlawful means (see paragraph 12 above). Nevertheless, this is not necessarily a determining factor in assessing whether or not he complied with his duties and responsibilities when publishing the information. The fact is, as the Chamber rightly noted, that the applicant, as a professional journalist, could not have been unaware of the confidential nature of the information he was planning to publish (ibid., § 144). Moreover, at no point did the applicant dispute, either before the domestic courts or before the Court, the fact that publication of the information in question might fall within the scope of Article 293 of the Criminal Code (compare Dupuis and Others v. France, no. 1914/02, § 24, 7 June 2007).", "(ii) Content of the impugned article", "58. The Court reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see Stoll, cited above, § 103).", "Furthermore, Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. Consequently, it is not for this Court, or for the national courts for that matter, to substitute their own views for those of the press as to what reporting technique should be adopted by journalists (ibid., § 146; see also Laranjeira Marques da Silva v. Portugal, no. 16983/06, § 51, 19 January 2010). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; Thoma, cited above, §§ 45-46; Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V; and Ormanni v. Italy, no. 30278/04, § 59, 17 July 2007).", "59. In the present case, the Court notes that in its judgment of 29 April 2008 the Federal Court conducted a lengthy assessment of the article, concluding that “[t]he manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence.”", "60. For its part, the Court notes that, even though the impugned article did not take a specific stance on the intentional nature of the offence the accused was alleged to have committed, it nevertheless painted a highly negative picture of him, adopting an almost mocking tone. The headlines used by the applicant – “Questioning of the mad driver”, “the reckless driver ’ s version” and “He lost his marbles...” – as well as the large close-up photograph of the accused accompanying the text, leave no room for doubt that the applicant had wanted his article to have a sensationalist tone. Moreover, the article emphasised the vacuity of the accused ’ s statements and his many contradictions, which were often explicitly described as “repeated lies”, concluding with the question whether, by means of “this mixture of naivety and arrogance”, M.B. was “doing everything in his power to make himself impossible to defend”. The Court emphasises that those were precisely the kind of questions that the judicial authorities were called upon to answer, at both the investigation and the trial stages.", "61. On this point the Court likewise sees no weighty reason to call into question the fully reasoned decision of the Federal Court.", "(iii) Contribution of the impugned article to a public-interest debate", "62. In its judgment of 1 July 2014, the Chamber noted that the incident which had been the subject of the criminal proceedings in issue had immediately attracted public interest and led many media outlets to cover the case and its handling by the criminal justice system.", "63. The Court reiterates that it has already held that the public has a legitimate interest in the provision and availability of information on criminal proceedings, and that remarks concerning the functioning of the judiciary relate to a matter of public interest (see Morice, cited above, § 152).", "64. In the present case the Court accepts that the subject of the article, namely the criminal investigation into the Lausanne Bridge tragedy, was a matter of public interest. This highly exceptional incident had triggered a great deal of emotion among the population, and the judicial authorities had themselves seen fit to inform the press of certain aspects of the ongoing inquiry (see paragraph 11 above).", "However, the question arising here is whether the content of the article and in particular the information which was covered by the secrecy of judicial investigations were capable of contributing to the public debate on this issue (see Stoll, cited above, § 121; see also Leempoel & S.A. ED. Ciné Revue, cited above, § 72 ) or served purely to satisfy the curiosity of a particular readership regarding the details of the accused ’ s private life (see, mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 65, ECHR 2004 ‑ VI; Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and Mosley, cited above, § 114).", "65. The Court notes in this connection that after an in-depth assessment of the content of the article, the nature of the information provided and the circumstances surrounding the “Lausanne Bridge” case, the Federal Court, in a lengthily reasoned judgment which contained no hint of arbitrariness, held that neither the disclosure of the records of interviews nor that of the letters sent by the accused to the investigating judge had provided any insights relevant to the public debate and that the interest of the public in this case had at the very most “ involved satisfying an unhealthy curiosity” (see paragraph 16 above).", "66. For his part, the applicant failed to demonstrate how the fact of publishing records of interviews, statements by the accused ’ s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation.", "67. Accordingly, the Court sees no weighty reason to substitute its own view for that of the Federal Court (see, mutatis mutandis, MGN Limited, §§ 150 and 155; Palomo Sánchez and Others, § 57; and Haldimann and Others, §§ 54-55, all cited above), which had a certain margin of appreciation in such matters.", "(iv) Influence of the impugned article on the criminal proceedings", "68. While emphasising that the rights guaranteed by Article 10 and Article 6 § 1 deserve equal respect in principle (see paragraph 53 above), the Court reiterates that it is legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of what is at stake in criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent (see Dupuis and Others, cited above, § 44). It emphasises that the secrecy of investigations is geared to protecting, on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence and, more generally, his or her personal relations and interests. Such secrecy is also justified by the need to protect the opinion-forming and decision-making processes within the judiciary.", "69. In the instant case, even though the impugned article did not openly support the view that the accused had acted intentionally, it was nevertheless set out in such a way as to paint a highly negative picture of him, highlighting certain disturbing aspects of his personality and concluding that he was doing “everything in his power to make himself impossible to defend” (see paragraph 60 above).", "It is undeniable that the publication of an article slanted in that way at a time when the investigation was still ongoing entailed an inherent risk of influencing the course of proceedings in one way or another, whether in relation to the work of the investigating judge, the decisions of the accused ’ s representatives, the positions of the parties claiming damages, or the objectivity of the trial court, irrespective of its composition.", "70. The Grand Chamber considers that a government cannot be expected to provide ex post facto proof that this type of publication actually influenced the conduct of a given set of proceedings. The risk of influencing proceedings justifies per se the adoption by the domestic authorities of deterrent measures such as prohibition of the disclosure of secret information.", "The lawfulness of those measures under domestic law and their compatibility with the requirements of the Convention must be capable of being assessed at the time of the adoption of the measures, and not, as the applicant submits, in the light of subsequent developments revealing the actual impact of the publications on the trial, such as the composition of the trial court (see paragraph 35 above).", "71. The Federal Court was therefore right to hold, in its judgment of 29 April 2008, that the records of interviews and the accused ’ s correspondence had been “discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court ”.", "(v) Infringement of the accused ’ s private life", "72. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06 § 40, 21 September 2010; and Axel Springer AG, cited above, § 83 ). The concept of “private life” is a broad term which is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person, and can therefore embrace multiple aspects of the person ’ s identity such as, for example, gender identification, sexual orientation, name and elements relating to a person ’ s right to his or her image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010, and Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG, cited above, § 83).", "73. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Armonienė v. Lithuania, no. 36919/02, § 36, 25 November 2008; Von Hannover (no. 2), cited above, § 98; and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013). That also applies to the protection of a person ’ s picture against abuse by third parties (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Von Hannover, cited above, § 57; Reklos and Davourlis v. Greece, no. 1234/05, § 35, 15 January 2009; and Von Hannover (no. 2), cited above, § 98).", "74. The Court notes that in order to fulfil its positive obligation to safeguard one person ’ s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Hachette Filipacchi Associés ( ICI PARIS ), § 41; MGN Limited, § 142; and Axel Springer AG, § 84, all cited above).", "75. The Government argued that in the present case the Swiss authorities had both a negative and a positive obligation to protect the accused ’ s private life. The Government rightly observed that the choice of means calculated to secure compliance with this positive obligation fell within the States ’ margin of appreciation. They submitted that Article 293 of the Criminal Code, which made it an offence to disclose classified information, fulfilled that function.", "76. The Court has already examined under Article 8 the issue of respect for an accused person ’ s private life in a case involving a violation of the secrecy of judicial investigations. In Craxi v. Italy (no. 2) (no. 25337/94, § 73, 17 July 2003) it held that the national authorities were not merely subject to a negative obligation not to knowingly disclose information protected by Article 8, but that they should also take steps to ensure effective protection of an accused person ’ s right to respect for his correspondence.", "Consequently, the Court considers that the criminal proceedings brought against the applicant by the cantonal prosecuting authorities were in conformity with the positive obligation incumbent on Switzerland under Article 8 of the Convention to protect the accused person ’ s private life.", "Furthermore, the information disclosed by the applicant was highly personal, and even medical, in nature, including statements by the accused ’ s doctor (see paragraph 10 above), as well as letters sent by the accused from his place of detention to the investigating judge responsible for the case. The Court takes the view that this type of information called for the highest level of protection under Article 8; that finding is especially important as the accused was not known to the public and the mere fact that he was the subject of a criminal investigation, albeit for a very serious offence, did not justify treating him in the same manner as a public figure, who voluntarily exposes himself to publicity (see, mutatis mutandis, and by contrast, Fressoz and Roire, cited above, § 50, and Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009).", "77. In its judgment of 1 July 2014, the Chamber held that the protection of the accused ’ s private life, particularly the secrecy of correspondence, could have been ensured by means less damaging to the applicant ’ s freedom of expression than a criminal conviction. The Chamber took the view that in order to uphold his rights under Article 8 of the Convention, the accused could have had recourse to the civil-law remedies available to him under Swiss law.", "The Court considers that the existence of those civil-law remedies under domestic law for the protection of private life does not release the State from its positive obligation deriving, in each individual case, from Article 8 of the Convention vis-à-vis a person accused in criminal proceedings.", "78. At all events, as regards the particular circumstances of the present case, it should be noted that when the impugned article was published the accused was in prison, and therefore in a situation of vulnerability. Moreover, there is nothing in the case file to suggest that he was informed of the publication of the article and of the nature of the information it provided. In addition, he was probably suffering from mental disorders, thus increasing his vulnerability. In those circumstances, the cantonal authorities cannot be blamed for considering that, in order to fulfil their positive obligation to protect M.B. ’ s right to respect for his private life, they could not simply wait for M.B. himself to take the initiative in bringing civil proceedings against the applicant, and for consequently opting for an active approach, even one involving prosecution.", "(vi) Proportionality of the penalty imposed", "79. The Court reiterates that the nature and severity of the penalties imposed are further factors to be taken into account when assessing the proportionality of an interference (see, for example, Stoll, cited above, § 153). Furthermore, the Court must be satisfied that the penalty does not amount to a form of censorship intended to discourage the press from expressing criticism. In the context of a debate on a topic of public interest, such a sanction is likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, it is liable to hamper the press in performing its task as purveyor of information and public watchdog. In that connection, the fact of a person ’ s conviction may in some cases be more important than the minor nature of the penalty imposed (ibid., § 154).", "80. Moreover, the Court notes that the disclosure of information covered by the secrecy of judicial investigations is punishable in all thirty Council of Europe member States whose legislation was studied in the present case (see paragraphs 22-23 above).", "81. It is true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings in matters of freedom of expression (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999-VI; Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011; and Morice, cited above, § 127). Nevertheless, in the present case, the Court considers that the recourse to criminal proceedings and the penalty imposed on the applicant did not amount to disproportionate interference in the exercise of his right to freedom of expression. The applicant was originally given a suspended sentence of one month ’ s imprisonment (see paragraph 13 above). His sentence was subsequently commuted to a fine of CHF 4,000, which was set having regard to the applicant ’ s previous record and was not paid by the applicant but was advanced by his employer (see paragraph 14 above). This penalty was imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life.", "The Court takes the view that, in those circumstances, it cannot be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public of ongoing criminal proceedings.", "(vii) Conclusion", "82. In view of the foregoing, and having regard to the margin of appreciation available to States and to the fact that the exercise of balancing the various competing interests was properly conducted by the Federal Court, the Court concludes that there has been no violation of Article 10 of the Convention." ]